Bajaj Allianz General Insuracne ... vs Sanjeev Kumar Prabhakar & Ors
2012 Latest Caselaw 5661 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 19th September, 2012
+        MAC.APP. 359/2011

         BAJAJ ALLIANZ GENERAL INSURACNE CO. LTD....... Appellant
                       Through: Mr. Joy Basu, Adv.

                            versus

         SANJEEV KUMAR PRABHAKAR & ORS...... Respondents
                        Through: Mr. A. Das, Adv. with
                                 Ms. Priyanka Das, Adv.
                                 Ms. Rashi Bansal, Adv.
                                 Mr. Rajesh Bhardwaj, Adv. for
                                 R-1 & R-2.
                                 Mr. S.N. Parashar, Adv. for R-4.
+        MAC.APP. 611/2012

         SANJEEV KUMAR PRABHAKAR & ORS              ...... Appellants
                         Through: Mr. A. Das, Adv. with
                                  Ms. Priyanka Das, Adv.
                                  Ms. Rashi Bansal, Adv.
                                  Mr. Rajesh Bhardwaj, Adv.
                  versus

         BAJAJ ALLIANZ GENERAL INSURACNE CO. LTD...... Respondent
                       Through: Mr. Joy Basu, Adv.

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

                                     JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant Bajaj Allianz General Insurance Company Limited impugns a judgment dated 14.01.2011 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a compensation of

`87,15,099/- was awarded in favour of Respondents No.1 and 2 for the death of Smt. Anjana Prabhakar who died in a motor vehicle accident which occurred on 17.04.2009.

2. The main plank of argument raised by Mr. Joy Basu, learned counsel for the Appellant Insurance Company is that the vehicle No.DL-1PB-4062 which was insured with it was not involved in the accident. He states that rather vehicle No.DL-1P-7665 was involved in the accident. In support of his contention, the learned counsel for the Appellant drew my attention to the FIR No.200/2009 recorded in Police Station Sector 24, Noida, Gautam Budh Nagar. It is evident from the FIR that it was recorded on the basis of statement of Sanjeev Prabhakar, the deceased's husband who was the eye witness of the accident. He gave the number of the bus involved in the accident as DL-1P-7665.

3. The Claims Tribunal dealt with the issue of involvement of the vehicle and held that PW-1 Sanjeev Prabhakar had instructed his relations to lodge the FIR as he was concerned about the life of his wife, who ultimately succumbed to the injuries.

4. During inquiry before the Claims Tribunal, a copy of the charge sheet for offence under Section 279/337/304-A IPC filed against Pankaj Kumar was placed on record. The charge sheet however, does not reveal as to how the number of vehicle got changed from DL-1P-7665 to DL-1PB- 4062. In this view of matter, it was incumbent upon the Claims Tribunal to have recorded the statement of the IO and possibly summon the insurance record of vehicle No. DL-1P-7665 from the concerned quarter to satisfy itself about the involvement of the vehicle No. DL-1PB- 4062.

5. From the record, it is evident that the FIR was recorded on the statement of Sanjeev Prabhakar, the deceased's husband and the number of the offending vehicle was given as DL-1P-7665. The FIR was not recorded at the instance of the relations of Mr. Sanjeev Prabhakar.

6. In view of this, the impugned disorder cannot sustain as the identity of the vehicle is not fully established. The same is accordingly set aside and the case is remanded back to the Claims Tribunal with the following directions to:-

(i) Summon the IO of the case and examine him on the aspect, particularly, as to how the police reached to the conclusion that instead of vehicle No. DL-1P-7665, vehicle No. DL-1PB-4062 was involved in this accident.

(ii) Summon the insurance record of vehicle No. DL-1P-7665 for the relevant period, covering the date of the accident; and

(iii) Any other evidence which may be relevant to establish the identity of the vehicle involved in the accident.

7. By order dated 27.04.2011, the award amount was directed to be deposited in this Court. A sum of `5,00,000/- was ordered to be released in favour of the First Respondent. The release of this amount of `5,00,000/- shall be subject to the final outcome of the Claim Petition. The balance amount along with interest, if any, accrued during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

8. Along with the Appeal, Cross Objections registered as MAC APP.611/2012 were preferred by the Claimants for enhancement of the compensation. The Claimants shall be at liberty to urge and the Claims Tribunal shall be entitled to look into fresh grounds and shall not be bound by the quantum of compensation awarded earlier.

9. It goes without saying that in case of any need, the Claimants or for that matter any of the parties shall be at liberty to file Appeal, if aggrieved by the order that may be passed by the Claims Tribunal.

10. Cross Objections being MAC APP.611/2012 are accordingly dismissed.

11. The statutory deposit of `25,000/- shall be refunded to the Appellant Insurance Company.

12. Parties are directed to appear before the Claims Tribunal on 08.10.2012.

13. A copy of the order be sent to the concerned Claims Tribunal.

14. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 19, 2012 vk