New India Assurance Co. Ltd. vs Ahilya Devi & Others
2011 Latest Caselaw 3178 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment: 07.07.2011


+      MAC Appeal No. 5/2009 & CM No. 10409/2009 &
      10411/2009

NEW INDIA ASSURANCE CO. LTD.                        ...........Appellant

                           Through:     Mr. D.K. Sharma, Advocate.

                    Versus

AHILYA DEVI & OTHERS                               ..........Respondents
                   Through:             Mr. Navneet Goyal, Advocate
                                        for respondents No. 1 to 5.

                   AND
MAC Appeal No. 275/2009 & CM Nos. 7898-7900/2009 &
2877/2011

NITIN SHARMA                    .                  ...........Appellant
                           Through:     None.

                    Versus

JEET SINGH & OTHERS                                ..........Respondents
                  Through:              Mr. D.K. Sharma, Advocate for
                                        respondent No. 2.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                 Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

MAC Appeal Nos.5/2009 & 275/2009                           Page 1 of 6
 INDERMEET KAUR, J. (Oral)

1 The impugned award is dated 25.10.2008 vide which a sum

of Rs.4,42,000/- had been awarded in favour of the claimants. This

was in Claim Petition No. 118/2007. This was a death accident

case; Pramod Kumar had succumbed to his injuries in the accident

which had occurred on 09.06.2007. On the same date, Jeet Singh

had sustained injuries; in Claim Petition No. 184/2007 the

claimants had been awarded a sum of Rs.1,04,000/-. Both the

amounts were to carry interest @ 7.5% per annum from the date

of the institution of suit till payment.

2 Two appeals had been preferred both of which shall be

decided by a common judgment.

3 MAC Appeal No. 5/2009 had been preferred by the New

India Assurance Company. The contention of the appellant is that

on the date of accident, the driver did not have a valid permit; this

was noted in the trial Court. Before the appellate Court the owner

(appellant in MAC Appeal No. 275/2009) had produced the second

permit which on verification was found to be valid. Learned

counsel for the appellant/insurance company has fairly conceded

that thus on the date of accident the offending vehicle had a valid

permit. This point thus rests.

4 It has secondly been urged that the deceased Pramod

Kumar was the driver of the offending vehicle; he was a workman

and had his claim been assessed under the Workmen's

Compensation Act, the claim would have been not more than

Rs.3,84,280/-; the awarded amount in the sum of Rs.4,42,000/- is

thus liable to be set aside. Learned counsel for the appellant

company has placed reliance upon a judgment of the High Court

of Madras reported in 2004 (2) TAC 649 Madras Bhimavya &

others Vs. Shankar alias Adya and others. This argument has been

rebutted by learned counsel for the respondent; it is pointed out

that under Section 167 of the Motor Vehicle Act, 1963

(hereinafter referred to as the 'MV Act') claimants have an option

either to prefer their claim under the Workmen's Compensation

Act or under the MV Act. In this case, the claimants have

preferred their claim under Section 163 (a) of the MV Act;

attention has been drawn to the proceedings before the Claim

Tribunal; it is pointed out that in the entire proceedings there has

never been a whisper of this argument and the evidence brought

forward by the insurance company which included a witness on

their behalf had also nowhere disputed that the claim of the

claimants was not liable to be considered under the MV Act.

5 This submission of learned counsel for the respondent has

force; the option given to the claimants to opt for consideration of

their claim either under the MV Act or under Workmen's

Compensation Act is a statutory option as contained in Section

167 of the MV Act. It is also borne out from the record that

nowhere till the time of filing of this appeal this ground had been

urged; it was never the objection of the insurance company that

the claim of the claimants could not have been considered under

the MV Act. This submission of learned counsel for the appellant

is accordingly rejected.

6 It has lastly been submitted that the owner of the offending

vehicle had produced the permit only in the appellate court; had

this permit been produced by the owner before the Tribunal the

insurance company could have been absolved of payment of

interest as trial on the issue of the validity of the permit could

have been avoided; because of the delay, the insurance company

has been saddled to pay interest to the claimants. To support this

argument, learned counsel for the appellant has placed reliance

upon a judgment of this Court reported in AIR 2008 Delhi 90

Jagdish Prasad Paliwal Vs. National Insurance Company Ltd..

7 The last submission (as noted hereinabove supra) has no

force. The judgment in Jagdish Prasad (Supra) was in a different

context. In that case, it was held that the insurance company is

liable to recover the interest for the delay which has occurred

because of non-participation of the owner in the trial proceedings;

facts of the case are distinct. In the present case the owner had

validly participated in the proceedings in the trial court and the

delay has not occurred for this reason; even otherwise this was

not the only defence of the insurance company before the

Tribunal; other defences had also raised; it had been contended

that there was a negligence of the driver which had resulted in

the accident. In this factual scenario the judgment of Jagdish

Prasad (Supra) is not applicable.

8 At this stage, it is relevant to state that the second cross

appeal i.e. MAC Appeal No. 275/2009 has been filed by the owner

wherein his contention is that the insurance company has been

absolved of all liabilities in Claim Petition No. 184/2007; this was

an illegality and the entire liability could not have been fostered

upon the owner. It is also relevant to state that inspite of notice

having being issued to the appellant and the matter having being

retained on Board, none has appeared for the appellant.

9 The amounts awarded i.e. sum of Rs.4,42,000/- in Claim

Petition No. 118/2007 & Rs.1,04,000/- in Claim Petition No.

184/2007 do not in any manner call for any interference. At this

stage, it has been pointed out that the amounts has since been

deposited by the insurance company and are lying in the FDR

before the MAC Tribunal. In terms of the direction contained in

the impugned awarded dated 25.10.2008, as and when amounts

become due and payable to the claimants, the amounts would be

paid over to them.

10 Both the aforenoted appeals are disposed of in the above

terms.

INDERMEET KAUR, J.

JULY 07, 2011 a