Delhi High Court
New India Assurance Co Ltd. vs Ram Partap & Ors. on 29 October, 2013
Author: Suresh Kait
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 29th October, 2013
+ MAC.APP. 960/2011
NEW INDIA ASSURANCE CO LTD. ..... Appellant
Represented by: Mr. Sameer Nandwani,
Adv.
versus
RAM PARTAP & ORS. ..... Respondents
Represented by: Mr.Anshuman Bal, Adv.
for R1 and R2.
Mr. Praveen Kumar Jain, Adv. for R3 & R4.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been preferred against the impugned award
dated 06.08.2011 whereby, ld. Tribunal has granted compensation for
a sum of Rs.6,02,980/- with interest @ 7.5% per annum from the date
of filing of the petition till realization.
2. Ld. Counsel appearing on behalf of the appellant has argued
that on 08.08.2009 at about 9 A.M. deceased Lalit was going on his
motorcycle from Nazafgarh to Old Kakrola Road. When he reached
Nazafgarh near Dabas Medical Store, offending truck bearing
registration no. HR-16GA-0319 came from opposite direction and hit
the motorcycle. As a result thereof, deceased fell down on the road
and received fatal injuries. Ld. Counsel submits that above narrated
accident was head on collision, despite that ld. Tribunal has not
ascertained any contributory negligence on the part of the deceased.
3. On information, Police registered an FIR Ex.PW1/1 against the
driver of the offending vehicle HR-16GA-0319 and accordingly with
site plan DAR was filed, which is on record. It is established from the
DAR that there is no case filed against any other vehicle except the
offending vehicle as mentioned above. In the DAR it is nowhere
stated that the said accident had taken place as a result of contributory
negligence.
4. Every head on collision cannot be said to be a contributory
negligence until and unless it is specifically investigated or proved by
the opposite party that drivers of both the vehicles were equally
responsible for the said accident. Therefore, I do not find any
discrepancy in the view taken by the ld. Tribunal that there was no
contributory negligence on the part of the deceased.
5. The second ground argued by the ld. Counsel for the appellant
is that the driver of the offending vehicle was not having valid permit
to ply the vehicle in Delhi and in that eventuality ld. Tribunal ought to
have exonerated the appellant.
6. Ld. Counsel for the appellant submits that as per Section 88 of
the Motor Vehicles Act, 1988 a vehicle can go up to 16 Kms. beyond
the route permit, whereas in the present case, permit of the offending
vehicle was to ply in Haryana only and its last border was at
Nazafgarh. The vehicle reached Roshanara Road, Delhi which is 90
Kms. from its origin at Bhiwani and the same is contrary to Section 88
of Act.
7. However, the admitted fact is that the said vehicle came to
Roshanara Road at Delhi for repair, which has been proved by R1W2,
driver of the vehicle no. HR-61-2338, which towed the offending
vehicle and taken to the workshop namely; M/s. Lokesh Engineering
Works at Roshana Road, Delhi from Bhiwani (Haryana).
8. The aforementioned witness has specifically stated that the
offending vehicle no. HR-16G-0319 was having some serious
mechanical problem at Bhiwani and was not road worthy in the first
week of August, 2009. Therefore, the vehicle was in need of some
special repair work, which was easily available at Delhi only.
9. Also stated that he brought the vehicle from Bhiwani to Delhi
via, Bhiwani, Jhajjhar, Nazafgarh and reached to Roshanara Road,
Delhi and left the offending vehicle at the workshop as mentioned
above.
10. R1W3 has proved R1W3/B, i.e., the bill qua the repair paid by
the owner of the offending vehicle to Lokesh Auto Engineering
Works.
11. As per Section 66 of the Motor Vehicles Act, 1988, a vehicle
can be taken to any place for repair. Therefore, the limitation of 16
Kms. provides in Section 88 of the Act is not applicable in the present
case as the offending vehicle came from Bhiwani to Delhi for repair
purposes.
12. The driver of the offending vehicle has deposed that the said
vehicle was towed from Bhiwani to Delhi one day prior to the date of
the accident. However, his statement has no bearing in view of the
statements made by R1W2 and R1W3 who proved that the offending
vehicle reached to the Lokesh Auto Engineering Works and towed by
R1W2.
13. It is important to note that R1W2 and R1W2 have not been
cross-examined by the appellant / insurance company on the issue
raised by them. Moreover, they have not cross-examined any witness
to belie their statements.
14. It is legally significant to note the findings in the case of
National Insurance Co. Ltd. v. Swarn Singh 2004 ACJ 1, wherein it
is held as under:
"102. The summary of our findings to the various issues
as raised in these petitions are as follows:
(vi) Even where the insurer is able to prove breach on the
part of the insured concerning the policy condition
regarding holding of a valid licence by the driver or his
qualification to drive during the relevant period, the
insurer would not be allowed to avoid its liability
towards insured unless the said breach or breaches on
the condition of driving licence is/ are so fundamental as
are found to have contributed to the cause of the
accident. The Tribunals in interpreting the policy
conditions would apply "the rule of main purpose" and
the concept of "fundamental breach" to allow defences
available to the insured under section 149(2) of the Act."
15. In view of the above dictum in Swarn Singh (Supra), the
alleged deviations in the permit are not sufficient to exonerate from
the liability. The stipulations in the insurance policy are interpreted
on the basis of two concepts: rule of main purpose and fundamental
breach. Therefore, there is no wilful breach in terms of the insurance
policy. Thus, I do not find any substance on the ground taken by the
appellant.
16. The third issue argued by the ld. Counsel for the appellant is
that claimants filed the salary certificate of the deceased as Rs.7,200/-
per month, however, same has been rejected by the ld. Tribunal for
the reasons, that seems to be fabricated.
17. Ld. Counsel submits that in such eventuality, his notional
income of Rs.15,000/- per annum should have been considered as per
the second schedule of the Motor Vehicles Act. Settled law is that if a
person is not an earning member, then his annual income has to be
considered as per the Second Schedule of the Act.
18. In the case in hand, deceased died at the age of 21 years.
Claimants filed the salary certificate of the deceased, however they
could not prove the same. Therefore, ld. Tribunal has rightly assessed
the monthly income of the deceased as per the minimum wages
applicable at the relevant time.
19. In view of above, I do not find any discrepancy in the order
passed by the ld. Tribunal.
20. Accordingly, instant appeal stands dismissed.
CM. No. 19925/2011
With the dismissal of the instant appeal, instant application has
become infructuous and dismissed as such.
SURESH KAIT, J
OCTOBER 29, 2013
jg
