National Insurance Company Ltd. vs Asha Kaul & Ors.
2013 Latest Caselaw 1347 Del

$~27
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                               Judgment delivered on:19th March, 2013


+              MAC.APP. 363/2010 & CM No. 10821/2010 (for stay)


NATIONAL INSURANCE COMPANY LTD.               ..... Appellant
                 Through: Ms.Manjusha Wadhwa, Advocate.

                           Versus

ASHA KAUL & ORS.                                           ..... Respondents
                           Through:    Mr.Sarfaraz Khan, Advocate for
                                       Respondent Nos. 1 to 3 with
                                       Respondent No.1 in person.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

MAC.APP. 363/2010

1. Vide the instant appeal, the appellant/Insurance Company has challenged the impugned award dated 12.03.2012 passed by the learned Tribunal.

2. The main ground taken in this appeal is that on 30.10.2007, the following issues were framed by the learned Tribunal:

"1. Whether deceased Badrinarayan received fatal injuries on 11.02.2000 on account of rash and negligent driving of

vehicle No.DL-8C-5961 on the part of R1, vehicle owned by R2 and insured by R3?.....OPP

2. If issue no. 1 is proved in affirmative, whether petitioner is entitled for any compensation if yes, from whom and to what amount?

3. Relief."

3. Respondent Nos. 2 and 3, driver and owner of the offending vehicle chose not to appear despite notice and were proceeded ex parte vide order dated 05.11.2003 passed by the learned Tribunal. Respondent No.1/wife of the deceased had also stopped appearing before the learned Tribunal since 29.04.2009.

4. In the circumstances, while conducting the enquiry, the learned Tribunal had called the officer from the Bank to establish the salary of the deceased.

5. Though FIR has been lodged against the driver of the offending vehicle and the learned Tribunal had summoned the criminal record of the said case, however, fact remains that there is no evidence either on the rash and negligent driving of the vehicle nor has been proved that respondent No.1/wife of the deceased was dependent upon the deceased.

6. Case of the claimant is that at the time of the accident, respondent No.1 was with the deceased and she also received injuries.

7. Learned counsel appearing on behalf of the respondents/claimants has submitted that since respondent No.1 was unwell, therefore, neither she could pursue her counsel nor the case pending before the learned Tribunal nor for that reason she could lead any evidence in the claim petition.

8. He fairly conceded that the claimant has not produced any witness or filed any evidence by way of affidavit, therefore, the case be remanded back for fresh enquiry.

9. In the interest of justice, I here make it clear that the learned Tribunal will not insist upon service of the driver for the reason he was proceeded ex parte in the claim petition and in the instant appeal, the appellant/Insurance Company could serve him by way of publication only.

10. Learned counsel for the appellant/Insurance Company has fairly conceded that since the employer of the deceased has proved the salary, the said aspect need not be examined again.

11. In view of the above and the consensus given by the learned counsel for the respondents/claimants, the instant appeal is remanded back to the learned Tribunal for conducting fresh enquiry to decide all the issues and pass a fresh award.

12. Since the accident took place on 11.02.2000 and thirteen years have been passed, therefore, I direct the learned Tribunal to conclude the trial within three months from today.

13. While deciding the interest part, the learned Tribunal is at liberty to consider that respondent No.1/claimant could not appear and pursue the matter during the year 2009 and 2010.

14. Consequently, both the parties shall be at liberty to lead their evidence accordingly.

15. Accordingly, the learned Tribunal shall conduct fresh enquiry on all the issues including the liability issue and pass a fresh award.

16. Both the parties are directed to appear before the learned Tribunal on 01.04.2013.

17. With these observations, the instant appeal stands disposed of.

CM No. 10821/2010 (for stay)

With the disposal of the appeal itself, this application has become infructuous. The same is accordingly disposed of.

A copy of this order be given under the signatures of the Court Master to the learned counsel for the parties and a copy of this order be sent to the learned Tribunal for compliance.

SURESH KAIT, J.

MARCH 19, 2013 sb