National Insurance Co. Ltd. vs Amit Kumar & Ors.
2014 Latest Caselaw 1399 Del

$~14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment delivered on:14th March, 2014

+                         MAC.APP. No.938/2012
NATIONAL INSURANCE CO. LTD.                        ..... Appellant
             Represented by: Mr.L.K.Tyagi, Advocate.

                    Versus

AMIT KUMAR & ORS.                                          ..... Respondents
             Represented by:            Mr.Manish Maini, Advocate for
                                        Respondent No.1.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is preferred against the impugned award dated

30.04.2012, whereby the learned Tribunal has granted compensation as

under:-

"Pecuniary damages (Special damages):

a)Medical expenses-----------------------------------------Rs. 1,094/-

b)Loss of income for 4 months---------------------------Rs. 15,856/-

c)Special diet expenses------------------------------------Rs. 7,000/-

d)Conveyance charges------------------------------------Rs. 5,000/-

e)Attendant charges---------------------------------------Rs. 2,000/- Non-pecuniary damages (General damages)

f)Pain, suffering, mental shock and trauma---------Rs. 40,000/-

__________________ Total Rs.70,950/-

Interest at the rate of 9% per annum from the date of filing of the

petition till realization of the amount was also awarded by the learned

Tribunal.

2. It is important to note that despite service upon respondent Nos. 2 and

3,i.e., driver and owner of the offending vehicle, appeared none on their

behalf.

3. Learned counsel appearing on behalf of the appellant/Insurance

Company submits that the appellant had issued notice under Order XII Rule

8 CPC to the respondent Nos. 2 and 3 through A.D. Card Ex.REW1/4 to

produce the driving licence of respondent No.2 and insurance policy of the

offending vehicle.

4. R3W1 in his evidence deposed that the driver of the offending vehicle

was challaned under Sections 3/181 of the Motor Vehicles Act, 1988 (for

short 'MV Act') for not holding the driving licence and owner of the

offending vehicle was also challaned under Section 5/180 &186 of MV Act.

5. Learned counsel further submits that respondent No.2, driver of the

offending vehicle did not file any written statement despite opportunity,

hence his right of filing written statement was closed by the learned Tribunal

vide its order dated 17.01.2011.

6. Learned counsel submits that the learned Tribunal has misread and

misinterpreted the decisions of this Court in the case of Oriental Insurance

Co. Ltd. Vs. Sonia reported in 2009 (3) TAC 166 (Del.), wherein this Court

held that the Insurance Company was failed to discharge the onus.

However, in the case in hand, respondent Nos. 2 and 3, i.e., driver and owner

of the offending vehicle were challaned for not holding valid driving licence

and for allowing the vehicle to be driven by a person who was not holding

any driving licence. Moreover, notice under Order XII Rule 8 CPC was

issued despite the driving licence was not filed on record.

7. In such an eventuality, the learned Tribunal ought to have granted the

recovery rights in favour of the appellant and against the respondent Nos. 2

and 3.

8. Learned counsel further submits that while awarding the

compensation, the learned Tribunal has also awarded a sum of Rs.7,000/-

towards lawyer charges contrary to the dictum of this Court in ICICI

Lombard General Insurance Co. Ltd. Vs. Kanti Devi & Ors., MAC.A.

645/2012 decided on 30.07.2012.

9. It is not in dispute that the driver and owner of the offending vehicle

were challaned under Sections 3/181 and 5/180 & 186 of MV Act

respectively. Moreover, there is no driving licence on record, therefore, the

inference is drawn that the driver of the offending vehicle was not holding

driving licence on the date of the accident and the owner of the offending

vehicle allowed the driver, to drive the vehicle, who was not holding valid

driving licence on the date of accident.

10. In view of the above, I am of the considered opinion that the learned

Tribunal has erred in not granting recovery rights in favour of the appellant.

11. As regards the issue of lawyers fee is concerned, the same has been

dealt with by this Court in the case of Kanti Devi & Ors. (supra), wherein it

is held that the Tribunal has no power to grant lawyer's fee and out of pocket

expenses. To that extent, the impugned award dated 30.04.2012 is set side.

12. In view of the above, the appellant/Insurance Company is at liberty to

recover the amount from respondent Nos. 2 and 3, i.e., driver and owner of

the offending vehicle.

13. Consequently, statutory amount shall be released in favour of the appellant.

14. The compensation amount is just Rs.70,950/- with interest at the rate

of 9% per annum, which was directed to be kept in the FDR in the name of

respondent No.1 with State Bank of India, Rohini District Courts, Delhi, to

be renewed periodically with liberty to withdraw the quarterly interest

accrued thereon.

15. Since the amount is meagre and no time period of the FDR was

mentioned, therefore, I direct the Branch Manager, UCO Bank, High Court

of Delhi, New Delhi, to release the amount with proportionate interest in

favour of the respondent No.1 on taking necessary steps by him.

16. The appeal is allowed on above terms.

SURESH KAIT, J.

MARCH 14, 2014 sb