Delhi High Court
National Insurance Co. Ltd. vs Girish Tiwari & Ors. on 5 December, 2012
Author: G.P. Mittal
$ 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th December, 2012
+ MAC. APP. 977/2011
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. A.K. Soni, Advocate.
Versus
GIRISH TIWARI & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate for the
Respondents No.1 & 2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant National Insurance Co. Ltd. impugns a judgment dated
12.07.2011 passed by the Motor Accident Claims Tribunal(the Claims
Tribunal) in a Petition under Section 163-A of the Motor Vehicles Act,
1988(the Act) whereby a compensation of `3,40,500/- was awarded in
favour of Respondents No.1 and 2, the parents of deceased Shiv Narain.
2. It is urged by the learned counsel for the Appellant that the deceased was
riding a stolen two-wheeler and dashed against a parked truck No.HR-
38E-5226. His contention is two-fold; first, the deceased himself was
negligent in dashing against a parked tanker and second, the accident did
not arise out of use of motor vehicle inasmuch as at the time of the
accident, the tanker was not in use and thus the Appellant being its
insurer is not liable to pay any compensation.
3. Both the contentions are liable to be rejected.
4. I have gone through the FIR and the report under Section 173 Cr.P.C.
recorded in respect of the accident on which heavy reliance is placed by
the learned counsel for the Appellant. It is true that it is mentioned in the
FIR that the two-wheeler was stolen on the night between 26.10.2003 and
27.10.2003. Even if it is assumed that the deceased was one of the
thieves, there is no presumption that he would drive it rashly or
negligently. Of course, in the written statement filed by the Appellant it
was stated that the deceased was driving the stolen scooter and was in a
hurry because of being caught and in that hurry dashed the scooter into
the tanker. Yet, no evidence was adduced by the Appellant in support of
the plea that the accident was caused solely on account of the deceased's
negligence. Thus, the Appellant is not entitled to resist the Claim Petition
on the basis of the judgment of the Supreme Court in National Insurance
Company Limited v. Sinitha & Ors., 2011 (13) SCALE 84.
5. It is true that even in a Claim Petition under Section 163-A of the Act the
victim/legal representatives of the deceased are under obligation to prove
that the accident arose out of use of a motor vehicle. Of course, they are
not required to plead or prove negligence on the part of the driver/owner
of such a vehicle. Admittedly, the tanker was parked at the time of the
accident. The term 'use of the vehicle' includes halting and parking of
the vehicle as well. The Appellant, therefore, cannot resist a Claim
Petition under Section 163-A of the Act.
6. The Appeal, therefore, fails; the same is accordingly dismissed.
7. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
8. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 05, 2012
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