Delhi High Court
Vinod Kumar & Ors. vs Kishan Devi & Ors. on 20 January, 2011
Author: Reva Khetrapal
UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC. APP. 608/2007 and CM No.13714/2007
VINOD KUMAR & ORS. ..... Appellants
Through: Mr. V.K. Sharma and Mr. L.K.
Verma, Advocates.
versus
KISHAN DEVI & ORS. ..... Respondents
Through: Mr. D.K. Sharma and Mr. S.N.
Parashar, Advocates
% Date of Decision : January 20, 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?
J U D G M E N T (ORAL)
: REVA KHETRAPAL, J.
The appellants in the present appeal are aggrieved by the award
dated 20th April, 2007 passed by the Motor Accidents Claims
Tribunal, Tis Hazari Courts, Delhi.
2. The facts relevant for deciding the present appeal are that the
respondents No.1 to 4 filed a suit bearing No.219/2005 praying for
grant of compensation on account of the death of Shri Shyam Singh
in a motor vehicular accident, the respondent No.1 being the widow
of the deceased and the respondents No.2 3 and 4 being his two sons
and daughter. By its award dated 20.04.2007, the learned Tribunal
awarded compensation to the respondents No.1 to 4 in the sum of `
2,51,200/- with interest at the rate of 8% per annum on the said
amount from the date of filing of the suit, i.e., 22.01.2004 till the
realization of the awarded sum.
3. The sole ground on which the award has been assailed is that
the Tribunal erred in holding that the respondent No.5 - Insurance
Company though initially liable to pay compensation to the
respondents No.1 to 4 would have the right to recover the said
awarded amount of compensation along with interest from the
appellants No.1 and 2, being the driver and owner of the alleged
offending vehicle. Mr. V.K. Sharma, the learned counsel for the
appellants submitted that the learned Tribunal failed to consider that
on the date of the alleged accident, i.e., on 09.12.2003, the Tata 407
(mini truck) No.HR-61-1936 was in Delhi for the purpose of getting
the permit for the period intervening 20th December, 2003 to 19th
April, 2004. It is contended by the learned counsel for the appellants
that the appellants were granted permit on the very same day, i.e., on
09.12.2003 and that as it is essential to produce the vehicle before the
Transport Authority before the grant of permit, the appellants cannot
be faulted for the same and held liable to pay the award amount. The
alleged offending vehicle was duly insured with the respondent No.5
and the factum of insurance is not denied and as such the Tribunal
was not correct in fastening the liability upon the appellants herein.
4. The impugned portion of the award reads as under:
"20. The next question arises, from whom the
petitioners are entitled to receive the awarded
amount of compensation. The respondent No.1 Sh.
Vinod appeared as R1W1 and deposed that he is
the owner of vehicle No.HR-61-1936 and proved a
copy of permit issued by State of Haryana as
Ex.R1W1/A. Temporary permit issued by Govt. of
NCT of Delhi dated 9.12.03 is proved as
Ex.R1W1/B and another temporary permit issued
by Govt. of NCT of Delhi on 6.10.04 as
Ex.R1W1/C. The relevant permit is Ex.R1W1/B
but on careful perusal of the said permit I find that
the same has been made effective only from
20.12.03 and it is valid till 19.04.04. Thus clearly
the permit of the offending vehicle which entered
into Delhi was not valid on 9.12.03 i.e. the date of
accident. Accordingly the respondent No.1 has
committed breach of specific terms of insurance
policy, a copy of which is put as Ex.R2/X.1
wherein it has been stated that vehicle will not be
run without the valid and effective permit.
Accordingly although the respondent No.2 i.e.
insurance company is liable to pay compensation
to the petitioner but at the same time it is found
entitled to recover the same from the respondent
No.1 who is the owner of the offending vehicle and
had been plying the vehicle in Delhi without valid
and effective permit. I accordingly hold that
Respondent No.1 & 3 being the owner and driver
of the offending vehicle are held liable jointly and
severally to pay compensation to the petitioner.
The petitioner No.2 (sic. respondent No.2) being
the insurer of the offending vehicle is vicariously
held liable to pay compensation to the petitioners
with right to recover the said awarded amount of
compensation alongwith interest from respondent
No.1."
5. From the record, it appears that the only witness examined by
the appellant No.1 (insured) before the learned Motor Accidents
Claims Tribunal in the context of permit was R2W1 Shri Harinder
Sharma, Steno Typist, DTO, Bhiwani. The said witness testified that
he had brought the summoned record, i.e., the entry register
pertaining to permit issued by DTO, Bhiwani with effect from
08.05.2003 to 03.02.2004 and that the said register brought by him
contained an entry pertaining to vehicle bearing registration No.HR-
61-1936 (Tata 407) registered in the name of Vinod Kumar, son of Jai
Pal (the appellant No.1). He further testified that the permit was
issued to the said vehicle for the period from 16.10.2003 to
15.10.2004 as a goods vehicle. Ex.R2W1/1 was the copy of the
permit issued by DTO, Bhiwani in respect of the said vehicle which
was valid only for the territory of Haryana. In the course of his cross-
examination, the testimony of this witness was not challenged. The
sole query put to this witness was whether vehicle plying under DTO,
Bhiwani could enter Delhi by paying road tax/temporary permit fee,
while entering into Delhi or any other State, which was answered in
the affirmative by the witness.
6. Apart from examining this witness, the appellant No.1 Shri
Vinod Kumar examined himself as R1W1 to testify that he was the
owner of vehicle HR-61-1936 and that he had brought a copy of the
original permit of the said vehicle for the State of Haryana -
Ex.R1W1/A. He further testified that temporary permit had been
issued by the Government of NCT in respect of the said vehicle dated
09.12.2003 which was Ex.R1W1/B. He placed on record the original
receipt of the temporary permit issued on 06.10.2004 as Ex.R1W1/C.
In the course of his cross-examination, the witness denied the
suggestion that on 09.12.2003 he had no permit in respect of his
vehicle for plying the same in Delhi, but volunteered to state that he
had taken the vehicle to Delhi on 09.12.2003, and on the same day the
temporary permit was got issued by making payment. He also denied
the suggestion that the temporary permit for plying his vehicle in
Delhi was to be effective from 20.12.2003 and not from 09.12.2003.
He admitted that he had no receipt for the period prior to 09.12.2003.
7. On the aforesaid evidence, the contention of the learned
counsel for the appellants, that recovery rights had been wrongly
awarded by the learned Tribunal to the respondent No.5 - Insurance
Company, is wholly unsustainable. The accident which resulted in
the death of Shri Shyam Singh took place at 7.00 a.m. on 09.12.2003.
The temporary permit was got issued by the appellant No.1 at a
subsequent point of time i.e., during office hours on 09.12.2003.
Significantly, this permit categorically mentions that it is to take
effect from 20th December, 2003 and was to remain valid till 19th
April, 2004. No evidence has been placed on record to show that any
temporary permit was got issued by the appellants on any date prior
to 09.12.2003. Permit Ex.R2W1/A issued by the State of Haryana,
though it pertained to the period 8th May, 2003 to 3rd February, 2004,
it was valid only for the territory of Haryana and was not valid for the
State of Delhi. The temporary permit issued on 06.10.2004
(Ex.R1W1/C) was also for a period subsequent to the date of the
accident.
8. In view of the aforesaid, there is no merit in the appeal, which
is accordingly dismissed. CM No.13714/2007 also stands disposed
of.
REVA KHETRAPAL
(JUDGE)
January 20, 2011
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