United India Insurance Co Ltd. vs Ramo Devi & Ors
2014 Latest Caselaw 1762 Del

$~32
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment delivered on: 1st April, 2014

+      MAC.APP. 249/2011

UNITED INDIA INSURANCE CO LTD.        ..... Appellant
                      Represented by: Mr. Sameer Nandwani,
                      Adv.


                      Versus


RAMO DEVI & ORS                                       ..... Respondents
                                     Represented by: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal has been preferred against the impugned award dated 18.01.2011, whereby Ld. Tribunal has awarded compensation for an amount of Rs.18,24,740/- with interest @ 7.5% per annum from the date of filing of the Claim Petition till realization of the amount.

2. The Tribunal has also awarded an amount of Rs.20,000/- as pleader's fee.

3. Mr. Sameer Nandwani, Ld. Counsel appearing on behalf of the appellant submits that the claimants failed to prove the negligence on the part of the driver of the offending vehicle, despite, the Ld. Tribunal awarded compensation as noted above.

4. On the issue of negligence, Tribunal has framed issue no. 1 as under:

"Whether deceased had died in motor vehicle accident dated 15.10.2008 due to rash and negligent driving of vehicle NO. DL- 1PA-6382 driven by R-1, owned by R-2 and insured with R-3 as claimed in the petition? OPP

5. For the accident in question, an FIR Ex.PW1/1, under Section 279/337 IPC was registered against the driver of the offending bus bearing no. DL- 1PA-6382 on the statement of Beat Head Constable Gokul Chand of PS- Delhi Cantt. A rough site plan Ex.PW1/3 has proved that offending bus dragged the scooter to some distance after the accident. The mechanical inspection report of the scooter Ex.PW1/8 shows that its right side dickey was with dents and Stepney was having scratch marks. The mechanical inspection report of the offending bus Ex.PW1/9 shows that left side of the front mudguard and bumper was dented.

6. In the MLC, Ex.PW1/12, it is observed that it was a case of road traffic accident. Post-mortem report Ex.PW1/13 opines that possibility of deceased dying due to the injuries received in motor vehicular accident cannot be ruled out.

7. Moreover, it is proved that respondent no. 6 was driving the offending bus on the date of accident. This fact has been admitted by him in his written statement.

8. In view of the above, I am of the considered opinion that if there was no eye witness to prove the negligence of the respondent no. 6/ driver of the offending vehicle, the facts of the case itself speak in what manner the accident had taken place.

9. As the issue of compensation granted towards pleader's fee is concerned, there is no such provision in the Motor Vehicle Act and the same is contrary to the dictum passed by this court in the case of ICICI Lombard General Insurance Co. Ltd. v. Kanti Devi and Ors. in MAC.A. 645/2012 decided on 30.07.2012.

10. Thus, award dated 18.01.2011 is set aside to the extent of pleader's fee.

11. The statutory amount and excess amount be released in favour of the appellant and balance compensation amount be released in favour of the respondents / claimants on taking steps by them.

12. Accordingly, the appeal is partially allowed.

CM. No. 5513/2011 With the disposal of the appeal itself, instant application has become infructuous and disposed of as such.

SURESH KAIT, J APRIL 01, 2014 jg