Future Generali India Ins Co Ltd vs Dulari & Ors
2013 Latest Caselaw 1617 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%             Judgment delivered on: 9th April, 2013

+      MAC.APP. 757/2010


FUTURE GENERALI INDIA INS CO LTD         ..... Appellant
                       Through: Ms. Shantha Devi Raman, Adv.

                    Versus


DULARI & ORS                                     ..... Respondents
                                Through: Mr. Anshuman Bal, Adv. for R1 to
                                R7.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Vide the instant appeal, appellant has challenged the impugned award dated 31.08.2010, whereby ld. Tribunal has awarded the following compensation in favour of the respondents / claimants:

"Loss of financial dependency Rs. 3,73,400/-

       Loss of love and affection                  Rs.10,000/-
       Loss of consortium                          Rs.10,000/-
       Funeral Expenses                            Rs. 5,000/-
      Loss to Estate                               Rs.10,000/-"

2. Ld. Counsel appearing on behalf of the appellant has drawn the attention of this court to the statement of the informant Phoolchand recorded in the FIR as under:

"I resident of the above said address and works as a Halwai and today morning about 6 AM, I along with my collegues whose names are Ram Prasad, Ram Kishore, Prabhu Dayal, Parshu Ram, Pooran, Sukh Ram, Rajesh, Kanhaiya and 3-4 others whose names I do not know, sat in a Vikram No. DL 1 LL 8520 from 350 Bus Terminal and were going to Punjabi Bagh via DBG Road for doing work in a party."

3. Ld. Counsel further submits that the deceased Kanhaiya was in the team of Halwai and they were going to arrange a party. Therefore, the said deceased was gratuitous passenger and if a person is proved being as gratuitous, then the Insurance Company is not liable to pay any compensation.

4. Ld. Counsel has relied upon a case of National Insurance Company Ltd. v. Baljit Kaur & Ors. 2004 (2) SCC 1, wherein the issue of gratuitous passenger has been discussed and decided.

5. Ld. Counsel further submits that as per Section 147 of the Motor Vehicles Act, deceased was a gratuitous passenger and therefore, they are not liable to pay any compensation. Moreover, the insurance company has a limited liability and rest of the amount has to be paid by the owner of the offending vehicle.

6. On the other hand, ld. Counsel appearing on behalf of the respondents / claimants has submitted that the claimants filed a claim petition on the ground that deceased was the helper of the driver of the offending vehicle. This fact has been investigated by the police and police recorded the statement of the respondent no. 9 / owner of the vehicle, who stated that, deceased was a helper in the offending vehicle.

7. He further submits that the policy of the vehicle also covered the risk of the helper of the driver. Therefore, ld. Tribunal has rightly awarded the compensation.

8. I note, ld. Tribunal has come to the conclusion that no driving licence in the name of Sh. Babu Ram / driver of the offending vehicle has been issued by the authority, therefore, the recovery rights have been granted to the appellant in the present case.

9. The case of the appellant / Insurance Company before the Tribunal has been built up by R3W1, Sh. Vikas Khande, Sr. Executive Legal of the Insurance Company, who has tendered his evidence in examination in chief by way of affidavit Ex.PW-R3W1/A, wherein he has stated that as per the terms of the policy, no additional premium was paid by the insured to cover the risk of passenger as helper. On being put to Court Question, "Whether the policy covered the driver and helper?" The said witness stated that the policy covered the driver and the helper both.

10. The appellant has not produced any witness to prove that the deceased was not a helper in the offending vehicle, but from the team of Halwai. Whereas, the claimants have proved that the deceased was a helper on the offending vehicle.

11. As the liability is concerned, the recovery rights have already been granted to the Insurance Company against the owner of the vehicle.

12. In view of the above discussion, I do not find any merit in the instant appeal and same is accordingly dismissed with no orders as to cost.

13. Consequently, Registrar General of this Court is directed to release the compensation amount with up-to-date interest accrued thereon in favour of the respondents / claimants in terms of the award dated 31.08.2010 passed by the ld. Tribunal.

14. Registry is further directed to release statutory amount of Rs.25,000/- in faovur of the appellant/Insurance Company.

SURESH KAIT, J.

APRIL 09, 2013 jg