Delhi High Court
United India Insurance Co Ltd. vs Jagpal & Ors. on 18 March, 2014
Author: Suresh Kait
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:18th March, 2014
+ MAC.APP. 288/2010
UNITED INDIA INSURANCE CO LTD. ..... Appellant
Represented by: Mr.Vishvendra Verma,
Ms.Shivali and Mr.Pranav,
Advocates.
Versus
JAGPAL & ORS. ..... Respondents
Represented by: Mr.S.N. Parashar, 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 judgment dated
27.01.2010, whereby the learned Tribunal has awarded compensation for an
amount of Rs.1,28,830/- with interest at the rate of 7.5% per annum from the
date of filing of the claim petition till realization of the amount.
2. It is pertinent to mention here that respondent No.3 was proceeded ex
parte vide order dated 02.05.2011 passed by this Court and respondent No. 2
had been served through publication, despite, appearing none on their behalf.
3. Learned counsel appearing on behalf of the appellant/Insurance
Company submitted that the main grievance is that the driver of the
offending vehicle was not holding valid driving licence on the date of the
accident, despite that the learned Tribunal has not granted recovery rights in
favour of the appellant company and against respondent Nos. 2 and 3.
4. As per PW1/ the claimant, on 24.01.2005 at about 2.30 pm, while he
was going on a motorcycle towards his house, another motorcycle bearing
No.DL-7S-AM-0244 came from the front side, i.e., Ganga Vihar side, and
hit against his motorcycle, as a result of which he fell down on the road and
sustained injuries.
5. While deciding the issue No.1, it was observed by the learned
Tribunal that as per the statement of PW1 it is established that the accident
occurred on 24.01.2005 due to rash and negligent driving of motorcycle
bearing No.DL-7S-AM-0244.
6. Vide order dated 06.02.2008, an additional issue was framed and it
was recorded by the learned Tribunal that the case of the respondent No.3
was that he was not driving the offending vehicle at the time of the accident.
7. On the other hand, learned counsel for the respondent No.2 contended
before the learned Tribunal that the offending motorcycle bearing No.DL-
7S-AM-0244 was stolen on 24.01.2005 at about 2.00 pm and when he went
to lodge an FIR in the Police Station, he came to know that the said
motorcycle was recovered from one Mr. Parvej and that it was involved in
the accident.
8. Accordingly, it was observed by the learned Tribunal that the
contention of respondent No. 2 could not be considered because he did not
lead any evidence to prove that the said motorcycle was stolen and at the
time of the accident, he was not in possession of the said vehicle. Moreover,
the respondent No.1/claimant has admitted in his cross-examination dated
16.05.2006, that the offending vehicle was driven by Parvej. However, he
did not identify the driver of the offending vehicle. Thus, the learned
Tribunal opined that respondent No. 2 was not driving the offending
motorcycle at the time of accident.
9. Qua issue No.2, the learned Tribunal opined that as regards the
liability, respondent No.2, i.e., owner of the offending vehicle is liable to
pay compensation. Despite that, the learned Tribunal has not granted
recovery rights in favour of the appellant company and against the
respondent No.2.
10. In view of the evidence on record, I am of the considered opinion that
the learned Tribunal has lost sight while not granting recovery rights.
Therefore, keeping in view the facts and circumstances of the case, the
appellant/Insurance Company is entitled to recover the amount from
respondent No.2, i.e., owner of the offending vehicle.
11. Learned counsel for the appellant has also argued that the learned
Tribunal has wrongly granted a sum of Rs.25,000/- on account of actual and
estimated medical expenses.
12. However, keeping in view the injuries sustained by the respondent
No.1/claimant and the fact that he remained under treatment for about eight
months, I do not find any substance on this issue raised by the counsel of the
appellant.
13. Hence, the appeal is partially allowed.
14. Consequently, the Registry of this Court is directed to release the
statutory amount in favour of the appellant/Insurance Company and the
balance compensation in favour of the respondent No.1/injured in terms of
the award dated 27.01.2010.
SURESH KAIT, J.
MARCH 18, 2014
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