National Insurance Co. Ltd. vs Kunti Devi And Ors.
2014 Latest Caselaw 625 Del

$~R46
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment delivered on: 31st January, 2014

+                                   MAC.A.247/2007
       NATIONAL INSURANCE CO. LTD.              ..... Appellant
                    Represented by: Mr.S.L.Gupta and Mr.Ram
                                    Aashray, Advocates.

                      Versus


       KUNTI DEVI AND ORS.                                ..... Respondents
                    Represented by:             None.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is directed against the impugned award dated 15.02.2007, whereby the learned Tribunal has awarded compensation for a sum of Rs.6,95,000/- alongwith interest at the rate of 8% per annum from the date of filing of the petition till realization of the amount.

2. Brief facts of the case are that on 19.12.2004 at about 5.30 am, deceased Haridhawar Singh was driving Swaraj Majda bearing No.DL 1M 1403 and was coming from the Ambala side, it hit into Truck bearing No.HR 38B 1118, when driver of the offending vehicle had stopped the same by the side of centre divider of the road and was in the process of getting down from it. The deceased was driving his

vehicle carefully and at a slow speed due to foggy weather. Meanwhile, bus bearing No.DL 1PA 4673 being driven at a very fast speed came from behind and hit the vehicle of the deceased. Consequently, vehicle of the deceased was badly damaged and he died at the spot.

3. The learned Tribunal had framed issue No. 1 as under:-

"I. Whether Hardwar Singh (since deceased) sustained fatal injuries and died on account of rash and negligent driving of truck No.HR 38B 1118 and/or Bus No.DL 1PA 4673 at that time, date and place mentioned in the petition?

4. After considering the evidence on record, the learned Tribunal came to the conclusion that the deceased had died due to contributory negligence of the offending Truck bearing No.HR 38B 1118 and the offending Bus bearing No.DL 1PA 4673. Accordingly the learned Tribunal had taken the ratio of negligence as 70:30 and respondent Nos.7, 8 and 9 were held liable to pay compensation as per the aforementioned ratio in view of the dictums of High Court of Karnataka in the case of Karnataka State Road Transport Vs. Arun @ Aravind, 2004 ACJ 249 and Om Wati Through LRs Vs. Mohd. Din & Ors, 2002 ACJ 868. Consequently, the appellant/Insurance Company was directed to pay the entire compensation amount and thereafter recover 70% of the same from respondent Nos. 7 and 8 jointly and severally.

5. Learned counsel appearing on behalf of the appellant/Insurance Company submits that the contributory negligence attributed to vehicle insured with the appellant company was only 30%, whereas, the

contributory negligence attributed by the other offending vehicle was taken as 70%. However, the learned Tribunal had erred in directing the appellant company to pay the entire compensation amount and, thereafter, recover 70% of the same from the respondent Nos. 7 and 8.

6. It is not in dispute that the Insurance Company of the other vehicle was not made party by the claimants before the learned Tribunal. Therefore, it is not known whether the said vehicle was insured with some Insurance Company or not. The appellant/Insurance Company had also not produced any document by which it could be established that the other offending vehicle was insured with any Insurance Company.

7. Vide order dated 03.05.2007 passed by this Court, execution of the impugned award was stayed by directing the appellant/Insurance Company to deposit 30% of the awarded amount with upto date interest accrued thereon with the learned Tribunal. Further, directed to release the deposited amount in favour of the respondents/claimants.

8. Admittedly, the accident in question had occurred a decade ago, i.e., on 19.12.2004. We have entered in the year 2014. Therefore, it will be impractical to alter the impugned award dated 15.02.2007 passed by the learned Tribunal, specially when the appellant/Insurance Company is not prejudiced with the directions contained in the impugned order in view of the recovery right granted in favour of the appellant. Moreover, the appellant Insurance Company is a joint- tortfeasor .

9. In view of the above discussion, I do not find any merit in the instant appeal. The same is accordingly dismissed.

10. Accordingly, the appellant/Insurance Company is directed to deposit the balance compensation amount with upto date interest accrued thereon with the Registrar General of this Court within a period of five weeks from today, failing which, respondents/claimants shall be entitled for penal interest @ 12% per annum on account of delayed payment. Thereafter, the appellant/Insurance Company may recover the same from the respondent Nos.7 and 8, as directed by the learned Tribunal.

11. Thereafter, the Registry of this Court is directed to release the statutory amount of Rs.25,000/- in favour of the appellant/Insurance Company.

12. On deposit, the Registrar General is directed to release the amount in favour of the respondents/claimants in terms of the impugned award dated 15.02.2007 passed by the learned Tribunal on taking necessary steps by them.

SURESH KAIT, J.

JANUARY 31, 2014 Sb/RS