Oriental Insurance Co. Ltd. vs Baladin & Ors.
2011 Latest Caselaw 5966 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Date of decision: 7th December, 2011
+       MAC APP. 756/2011
        ORIENTAL INSURANCE CO. LTD.         ..... Appellant
                 Through: Mr. Pradeep Gaur, Adv.
                          Versus

        BALADIN & ORS.                              ..... Respondents
                 Through:       None.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                          JUDGMENT

G. P. MITTAL, J. (ORAL)

CM. No.15773/2011(for additional Evidence) in MAC APP. No.756/2011

The appellant seeks leave to lead additional evidence. The ground set up by the appellant is that it could not lead any evidence as it was not informed of the day to day proceedings by its counsel. A perusal of the record shows that the counsel for the insurance company appeared for the first time on 16.01.2009 and thereafter a number of adjournments were granted. A party can be permitted to lead additional evidence in an appeal if it satisfies the Court that in spite exercise of due diligence such evidence was not within its knowledge or could not be produced. No such ground has been made out by the Appellant, therefore, the application cannot be allowed.

C.M. APPL. No.15773/2011 is accordingly dismissed.

The application stands disposed of.

MAC APP. No.756/2011

1. The Appellant Oriental Insurance Co. Ltd. impugns the award dated 03.06.2011 passed by the Motor Accident Claims Tribunal in a petition under Section 163(A) of the Motor Vehicles Act, 1988.

2. The contentions raised on behalf of the Appellant are: -

(i) No evidence was produced that the accident took place with Vehicle No.DL-1LH-4740, which was driven by the Respondent No.7 (Chander Pal).

(ii) The petition was collusive as Respondent No.7, during inquiry before the Tribunal took the plea that it was Respondent No.1, who was the driver of the offending vehicle at the time of the accident, no FIR was lodged and the DD entry placed on record did not make any mention of the offending vehicle.

(iii) The deceased was a gratuitous passenger in a goods vehicle and was, therefore, not entitled to any compensation from the Insurance Co.

3. During inquiry before the Tribunal, Respondent No.1 filed his own affidavit Ex. PW-1/A. He testified that he and the deceased were travelling with their luggage on the hired Tempo (Vikram) bearing No.DL-1LH-4740. When the vehicle reached

Bachchan Park, Noida the front wheel of the vehicle got punctured (resulting in the accident). A DD No.4B dated 11.10.2007 was registered at P.S. Dilshad Garden in respect of the accident. The Respondent No.1 was cross-examined on behalf of Respondent No.7, the driver/ owner of the vehicle as also by the Appellant Oriental Insurance Co. Ltd. A suggestion was given to Respondent No.1 that he was driving the offending vehicle at the time of accident was denied by him. Respondent No.7 (Chander Pal, who was Respondent No.1 before the Tribunal) did not enter the witness box to rebut Respondent No.1's (claimant's) testimony. In cross-examination of PW-1 on behalf of Insurance Co. no suggestion was given that Respondent No.1 himself was driving the offending vehicle at the time of accident. Rather it was suggested to him that driver lost balance as he was sitting next to the driver. Another suggestion was given to Respondent No.1 (PW-1) that the accident took place on account of the overloading of the Vikram. In the circumstances, the Tribunal rightly reached the conclusion that the accident took place on account of involvement of Vikram Tempo No.DL-1LH-4740.

4. Turning to the contention that Respondent No.1 and the deceased were gratuitous passenger - the case set up by Respondents No.1 to 6 was that they had hired the tempo for transportation of their household goods could not be demolished in cross-examination.

5. It is urged by the learned counsel for the Appellant that no goods receipt or any document was placed on record by Respondents No.1 to 6 in order to prove that vehicle No.DL- 1LH-4740 was hired by them. Respondent No.1 (PW-1's testimony) regarding hiring of vehicle No.DL-1LH-4740 was also not challenged in cross-examination by the Insurance Co. Respondent No.7 herein was not summoned as a witness to say that the deceased was a gratuitous passenger. As per Ramesh Kumar v. National Insurance Co. Ltd. & Ors., (2001) 6 SCC 713 while interpreting Section 147(1)(b) of the Motor Vehicles Act as amended in the year 1994, it was held that the Insurance Co. is liable to pay the compensation in a case where the deceased or the injured persons were travelling in a goods carriage, being owner or his (owner's) authorized representative. In view of Respondent No.1's testimony that he had hired the tempo No.DL-1LH-4740 it was proved that he and deceased were travelling in the offending vehicle as the owner of the goods/ owner's representative. The Insurance Co. was, therefore, liable to satisfy the award.

6. The appeal is devoid of any merit; it is accordingly dismissed.

No costs.

(G.P. MITTAL) JUDGE DECEMBER 7, 2011 hs