Delhi High Court
National Insurance Co. Ltd. vs Sita Devi & Ors on 10 May, 2012
Author: G.P. Mittal
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:10th May, 2012
+ MAC.APP. No.403/2007
NATIONAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. Pradeep Gaur, Advocate
Versus
SITA DEVI & ORS. ..... Respondents
Through: Mr. Navneet Goyal with
Ms. Sumana N. Rawat,
Advocates for the Respondents
No.1 to 7.
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 18.05.2007 whereby in a Claim Petition under Section
163-A of the Motor Vehicles Act, a compensation of
`4,42,500/- was awarded in favour of the Respondents No.1 to
5 who are the legal heirs of the deceased Phuleshwar Mukhiya
who was the driver of TSR No.DL-1RD-7129 at the time of the
accident which occurred on 14.10.2005. While awarding the
compensation, the Claims Tribunal held that the owner of the
vehicle failed to produce the driving licence in spite of service
of the notice under Order XII Rule 8 CPC and also since the
vehicle was being driven in violation of the condition of the
permit Ex.R2W1/B; the Insurance Company (the Appellant
herein) would discharge its statutory obligation to pay the
compensation and would recover the same from the owner of
the vehicle i.e. the Respondent No.8 hereunder.
2. In the Claim Petition, it was alleged that on 14.10.2005 at about
5:15 pm while the deceased Phuleshwar Mukhiya was driving
the TSR No.DL-1RD-7129 near traffic signal, Prembari Pul,
Ring Road, it suddenly turned turtle. As a result of this, the
deceased suffered grievous injuries all over his body which
proved to be fatal.
3. The Claim Petition was filed under Section 163-A of the Act as,
while claiming the compensation from the owner of the motor
vehicle or the authorized insurer, the Claimants were not
required to prove that the deceased died on account of any
wrongful act, neglect or default of the owner of the vehicle or
vehicles concerned or of any other person.
4. Admittedly, the deceased was not a third party, he was driving
the vehicle involved in the accident himself with the
permission of the owner. Therefore, his legal representatives
are not entitled to the compensation as a third party.
5. It is urged by the learned counsel for the Respondents No.1 to 7
that the deceased was a paid driver engaged by the Respondent
No.8, the owner of the vehicle. A premium of `25/- was
charged towards the liability under Workmen's Compensation
Act to an employee and the Respondents No.1 to 6 are,
therefore, entitled to pay the compensation on the basis of the
contract between the owner (the insured) and the Appellant
(Insurance Company).
6. On the other hand, the learned counsel for the Appellant
Insurance Company urges that the Respondents No.1 to 7
failed to establish, rather there was not even a whisper that the
deceased was the Respondent No.8's employee and, thus the
Appellant was not under any obligation to pay any
compensation to the Respondents No.1 to 7.
7. To appreciate this contention, it would be appropriate to refer to
the pleadings of the parties and the evidence led by them. In
the Claim Petition, the Respondents No.1 to 5 averred (para 5
of the Petition) that the deceased was a self employed person
and had an income of `3,300/- per month. The Respondent
No.8 (the First Respondent before the Claims Tribunal) did not
dispute the contents of para 1 to 14. Since it was not alleged
by the Respondents No.1 to 5 that the deceased was an
employee of the Respondent No.8, there was no occasion for
the Respondent No.8 to traverse the averment. It is true that
the proceedings for grant of compensation are not strictly
governed by the procedural rules under the Code of Civil
Procedure. Thus, if we turn to the evidence of Sita Devi
(affidavit Ex.PW1/A), it nowhere shows that the deceased was
in employment under the Respondent No.8 at the time of the
accident. The learned counsel for the Respondents No.1 to 5
referred to para 33 of the affidavit where the First Respondent
averred that "the deceased Phuleshwar Mukhiya was working
as a driver and was earning `3,300/- per month." The
averment nowhere shows that the deceased was in employment
under the Respondent No.8. Thus, although the Respondent
No.8 covered the risk of a paid driver by paying an additional
premium of `25/-, but in the absence of even an iota of
evidence to show that the deceased was the Respondent No.8's
employee, the Appellant Insurance Company was not under an
obligation to indemnify the insured as it was beyond the
contract of insurance. I am supported in this view by the
report of the Supreme Court in Ningamma & Anr. v. United
India Insurance Company Limited, (2009) 13 SCC 710.
8. The finding on violation of the breach of the policy is not
challenged by the owner, the same becomes final between the
parties.
9. In view of my finding that there was no contract of insurance
between the Appellant (Insurance Company) and the owner
(the Respondent No.8) to cover the risk of any driver, (other
than the employee) the Appellant Insurance Company has no
liability to pay the compensation at all as the deceased was not
a third party.
10. The amount of compensation deposited shall be refunded to the
Appellant National Insurance Co. Ltd. with interest, if any,
accrued during the pendency of the Appeal.
11. By an order of this Court dated 12.11.2009, the interest accrued
on the deposit was ordered to be paid to the First Respondent.
In normal course, the Appellant is entitled to restitution and,
therefore, entitled to the refund of interest, if any, paid to the
First Respondent. Since the First Respondent is the widow of a
poor person running a TSR, it would be an exercise in futility
to order restitution of the interest on the amount if paid to the
first Respondent.
12. The statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company.
13. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 10, 2012
pst
