Oriental Insurance Co. Ltd. vs Sumit And Ors.
2011 Latest Caselaw 3991 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     MAC. APP. 241/2003


ORIENTAL INSURANCE CO. LTD.           ..... Appellants
                 Through: Mr. Pankaj Seth, Advocate.

             versus

SUMIT AND ORS.                                    ..... Respondents
                           Through:   None.

%                          Date of Decision :   August 17, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                           O R D E R (ORAL)

: REVA KHETRAPAL, J.

1. The appellant - M/s. Oriental Insurance Co. Ltd. has preferred

the present appeal against the judgment and award of the Motor

Accident Claims Tribunal, New Delhi dated 30.11.2002 challenging

the quantum of compensation awarded to the respondents No.1 to 4.

2. The brief facts relevant for the decision of the present appeal

are that one Chander Prakash met with a road accident on 22.11.1991

resulting in his death at the spot. The respondents No.1 to 4 are the

legal representatives and dependents of the deceased-Chander

Prakash. The respondent No.5 is the owner of the offending truck,

which had hit the deceased at the time of the accident. The respondent

No.6 is the driver of the said truck and the appellant is the insurance

company with which the offending vehicle was insured on the

relevant date.

3. Two claim petitions were filed being Claim Petition No.7/2002

titled "Sumit and Ors. versus Rajpal and Ors." and Claim Petition

No.6/2002 titled "Smt. Manju Bala and Ors. versus Rajpal and

Ors." The first claim petition was filed by the father of the deceased

on his own behalf as also on behalf of the children left behind by the

deceased. The mother of the deceased was also arrayed as a

petitioner in the said petition. The second claim petition was filed by

the widow of the deceased on behalf of herself and also for her minor

children Sumit and Pooja. It was by a common order that both the

aforesaid claim petitions arising out of the same accident were

decided by the Motor Accident Claims Tribunal awarding a sum of `

9,49,000/- with interest thereon to the respondents No.1 to 4.

4. Notice of the filing of the petitions was issued to the

respondents, including the driver and the owner of the truck. The

latter filed a written statement admitting his ownership of the truck

and stating that the same was insured with the appellant - Insurance

Company. The driver of the offending truck also contested the claim

on the ground that he was not driving the truck on the date of the

accident and had been falsely implicated by the Police in the criminal

case. The appellant - Insurance Company, however, did not contest

the case and was proceeded ex-parte by order dated 03.03.1994.

Thereafter an application was filed by the appellant for setting aside

of the ex-parte order on 12.01.2000, that is, almost after six years,

with its proposed written statement. By a detailed order dated

03.07.2001, the said application for setting aside of the ex-parte order

was dismissed by the Claims Tribunal. Accordingly, there is no

defence of the appellant on record. Subsequently, it appears that an

application was filed on behalf of the appellant under Section 170 of

the Motor Vehicles Act, 1988 (which is not on the record) for taking

over the defence of the owner and driver of the offending truck,

which too was dismissed by the learned Tribunal. No appeal was

preferred by the appellant against any of the aforesaid orders and the

said orders have, therefore, attained finality.

5. In the course of hearing, Mr. Pankaj Seth, the learned counsel

for the appellant, has challenged the impugned award on two grounds;

(i) that the Tribunal erred in taking the income of the deceased at

three times the income he was getting; (ii) that the driver of the

offending truck did not have a valid driving licence. The latter

ground, it deserves to be noted, does not find mention in the Grounds

of Appeal.

6. As regards the first ground viz., that the learned Tribunal had

erroneously taken an inflated amount as the income of the deceased, it

is, in my view, not open to the appellant to challenge the quantum of

compensation awarded to the claimants in view of the fact that the

appellant chose to absent itself from the proceedings and was

proceeded ex-parte and subsequently denied permission to take over

the defence of the respondents No.5 and 6. The relevant portion of

the award wherein this aspect has been dealt with reads as under:

"Ld. Counsel for R-3 has argued that insurance company had also moved an application for taking over the defence of R-1 and R-2.

The said application of R-3 was dismissed vide a detailed order and R-3 was not allowed for taking over the defence of R-1 and R-2. R-3 was proceeded ex-parte and has not even filed its WS. Vide order dated 3.7.2000 (? 3.7.2001) it (R-3) was only permitted to join the proceedings. Ld. Counsel for R-3 has argued that R-1 who was the insured had violated the terms and conditions of the policy and thus, R-3 was not liable to make the payment on behalf of R-2.

At the outset, first and foremost it is seen that the petitioners in this case are strangers to the insurance policy and are not bound by the terms and conditions thereof. So far as the petitioners are concerned, the insurance company is liable to pay to the petitioners and if it was not liable to pay compensation for violation of terms of policy by owner or the insured, then it could claim the same from them through the process of law separately.

Ld. counsel for R-3 has further argued that R-1 and R-2 have colluded with the petitioners and have not even proved the stand taken by them and hence should be permitted to take over the defence of R-1 and R-2 under Section 170 of the Motor Vehicles Act.

I am unable to accept this contention of ld. counsel for R-3. Section 170 of the Motor Vehicles Act provides that the insurer shall have a right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made if there is collusion between the person making the claim and the person against whom the claim is made has failed to contest the claim.

In the present case, the persons against whom the claim is made (R-1 and R-2) have contested the claim. They have filed their WS and have cross examined the witnesses of the petitioners to the stand taken by them in their WS. I thus, cannot accept the contention of ld. counsel for R-3 that there was collusion between the petitioners and R-1 and R-2."

7. It may be mentioned at this juncture that the record shows that

the claimants have already received the award amount in the year

2003 itself and as such the prayer of the appellants for reduction in

the quantum of compensation in any case has been rendered

infructuous.

8. As regards the second ground, as no written statement was filed

by the appellant - Insurance Company before the learned Tribunal, it

cannot, in appeal, be allowed to urge the breach of the policy

conditions without pleading or proof. Furthermore, the impugned

award shows that the driving licence of the driver was held to be a

valid one. The relevant portion of the award is reproduced hereunder:

"Not only this, it is also seen that R-1 and R-2 have produced the driver in the witness box as RW1 who had first obtained his driving licence from Allahbad in 1980 which he had surrendered to the police in the criminal case filed against him by State arising out of the same accident. The licence was again renewed in 1991 from Gurgaon, copy of which was Ex.RW1/A on record. It is thus, seen that R-1 and R-2 have shown that the witness was having a valid and effective driving licence at the time of the accident. Ld. counsel for R-3 has tried to prove from the records that the driving licence Ex.RW1/E was bogus in as much as the same was in the name of Nepal Singh son of Sh. "Likhi Singh issued from licensing authority Gurgaon" whereas the name of the father as per the driving licence Ex.RW1/A was "Lekhu Singh", and hence they were of two different persons.

In my opinion, this is not such a material particular on which it could be said that the identities of the two persons was different. The photograph on both Ex.RW1/A and Ex.RW1/E are of the same person and hence, there can be no doubt about his identity merely because there is some change in the name of his father. Even if, one was to believe, though I do not hold so, that the subsequent licence obtained by R-2, i.e. Ex.RW1/E was a bogus one or obtained fraudulently by R-2, the same would

not make his licence Ex.RW1/A, (which he was holding at the time of accident) bogus or fraudulent and it is not disputed that he was having this driving licence at the time of accident. There is nothing on record to show that this licence issued by the licensing authority of Allahabad was not genuine."

9. I see no reason to differ with aforesaid findings rendered by the

learned Tribunal. The appeal is accordingly dismissed.

10. Records of the learned Tribunal be sent back to the concerned

Tribunal forthwith.

REVA KHETRAPAL (JUDGE) August 17, 2011 ak