Reliance General Insurance Co Ltd vs Bharat Thakur & Ors
2014 Latest Caselaw 6249 Del

$~A-7 to 10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 27.11.2014

+     MAC.APP. 738/2010
      RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
                       Through Mr.Shoumik Mazumdar, Adv. for
                               Mr.K.L.Nandwani, Adv.
                versus
      BHARAT THAKUR & ORS                        ..... Respondent
                       Through Mr.Amit Kumar Pandey and Mr.Bishnu
                               Dobhal, Advocates

+     MAC.APP. 751/2010
      RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
                       Through Mr.Shoumik Mazumdar, Adv. for
                               Mr.K.L.Nandwani, Adv.
                versus
      RAMJI RAJAK & ORS                   ..... Respondent
                       Through Mr.Amit Kumar Pandey and Mr.Bishnu
                               Dobhal, Advocates

+     MAC.APP. 746/2010
      RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
                       Through Mr.Shoumik Mazumdar, Adv. for
                               Mr.K.L.Nandwani, Adv.
                versus
      TILKESHWAR THAKUR & ORS                    ..... Respondent
                       Through Mr.Amit Kumar Pandey and Mr.Bishnu
                               Dobhal, Advocates
+     MAC.APP. 742/2010
      RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
                       Through Mr.Shoumik Mazumdar, Adv. for
                               Mr.K.L.Nandwani, Adv.
                versus
      TILKESHWAR THAKUR & ORS                    ..... Respondent
                       Through Mr.Amit Kumar Pandey and Mr.Bishnu
MAC.APP.738/2010 & connected matters                             Page 1 of 7
                                         Dobhal, Advocates

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. These are four appeals arising from a common accident. The facts for the purpose of disposal of the appeals are common.

2. The brief facts which led to the filing of the claim petitions are that the claimant on 22.3.2008 in the afternoon was going with his friends in a goods vehicle. When the said vehicle reached at the DND Fly over the driver of the offending vehicle who was driving the same in a rash and negligent manner could not control the vehicle and hit railing on the road. The vehicle caught fire. Several occupants of the vehicle received fatal injuries and died.

3. Based on the evidence on record the Tribunal concluded that the accident took place due to the rash and negligent driving of the driver of the offending vehicle.

4. Different compensations were awarded to different claimants.

MAC.APP.No.738/2010
       Loss of dependency                 Rs.5,85,480/-
       Funeral charges                    Rs.25,000/-
       Loss of love and affection         Rs.1,00,000/-
       Total                              7,10,480/-





 MAC.APP.No.751/2010


       Loss of dependency               Rs.4,57,800/-
       Funeral charges                  Rs.25,000/-
       Loss of love and affection       Rs.1,00,000/-
       Total                            5,82,800/-


MAC.APP.No.746/2010

In this appeal Rs.3,75,000/- was awarded as compensation with interest @7.5% per annum MAC.APP.742/2010 Loss of dependency Rs.5,51,040/-

       Funeral charges                  Rs.25,000/-
       Loss of love and affection       Rs.1,00,000/-
       Total                            6,76,040/-

5. Learned counsel appearing for the appellant submits that the deceased were all gratuitous passengers of a goods vehicle. He submits that there was no separate insurance policy taken for these passengers. Hence, on the accident having occurred the appellant insurance company is not liable to make the payment. He relies upon section 149 (2) of the Motor Vehicles Act, 1988.

6. A perusal of the Award shows that the Tribunal has not dealt with this issue whatsoever. Learned counsel appearing for the appellants insists that the

matter was argued before the Tribunal but the Tribunal has not dealt with this issue.

7. A perusal of the written statement filed before the Tribunal by the appellant/insurance company shows that this plea has been taken. In para 3 of the preliminary objections in the written statement it is stated that the respondent company is not liable to pay any compensation as the deceased was travelling as a gratuitous passenger whereas the vehicle was insured and registered as a goods carrying vehicle hence there was breach of the terms and conditions of the insurance policy. Hence, the written statement says that the appellant/insurance company is not liable to indemnify the insured under the policy.

8. Reference may also be had to the evidence of R3W1 Shri Jaidev the driver of the offending vehicle respondent No.4. He in his affidavit by way of evidence states that it was the day of Holi festival. He further states that he was going from Ashram to Sarai Kale Khan and got CNG filled. The moment he left Sarai Kale Khan locality 9 to 19 people from Sarai Kale Khan locality compelled him to stop the vehicle and 4-5 persons entered into the vehicle and rest of the persons boarded the backside of the vehicle. He alleges that all the occupants were heavily drunk and they forced him to drive the vehicle. He further states that because they were interfering in the driving the accident took place. As per the insurance policy the vehicle in question was a Swaraj Mazda and was registered as a medium goods vehicle.

9. From the evidence of R3W1 it is clear that the deceased were all gratuitous passengers travelling in a goods vehicle. It is also clear that the vehicle is insured as a goods vehicle and not as a passenger carrying vehicle. In

the light of the above, there is clear breach of the terms and conditions of the insurance policy and the liability is that of the insurer, insured and the driver.

10. At this stage, learned counsel appearing for the claimant/respondent relies upon a judgment of the Supreme Court in the case of Manager, National Insurance Company Ltd. Vs Saju P.Paul and another, 2013 ACJ 554 to contend that under similar facts and circumstances the Supreme Court had directed the insurance company to make the payment and recover the compensation amount from the owner and driver of the offending vehicle. He submits that in the present case also the appellant/insurance company having already deposited the compensation amount pursuant to interim orders of this Court, the said amount should be released to the claimants who are poor persons and recovery rights can be given to the appellant/insurance company.

11. I may look at the judgment of the Supreme Court in National Insurance Company Ltd. Vs Saju P.Paul and another (supra) where in para 25 it was held as under:-

"25. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur (2004) 2 SCC 1 and Challa Bharathamma (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant

(Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. The insurance company (Appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma (2004) 8 SCC 517."

12. In the light of the above judgment, in my opinion the facts of the present case are somewhat similar. In the present case the accident took place in March 2008. This Court on 18.11.2010 had directed that subject to the appellant's depositing the entire award amount, operation of the impugned award shall remain stayed. The said amount is lying deposited with the Registrar General of this Court.

13. I may also note that there are certain connected matters rising out of the same accident which came up for disposal at a later date. Against these matters appeals have been filed which are MAC.APP. 681/2014, MAC.APP. 683/2014, MAC.APP. 684/2014 and MAC.APP. 688/2014. In those appeals this Court has

directed the appellant/insurance company to deposit the entire award amount with accumulated upto date interest before the Registrar General of this Court. On deposit 50% was ordered to be released to the claimants and 50% was to be kept in Fixed Deposit.

14. The facts are somewhat similar to the facts of the judgment of the Supreme Court in National Insurance Company Ltd. Vs Saju P.Paul and another (supra). The said judgment would accordingly apply to the facts of this case. Accordingly, it is directed that the Award amount lying deposited in the UCO Bank, Delhi High Court be released to the claimants with accumulated interest proportionately as per directions in the award.

15. The appellant insurance company shall have recovery rights from the owner and driver of the offending vehicle. The appeal stands disposed of.

16. The statutory amount deposited by the appellant at the time of filing the appeal be refunded to the appellant/Insurance company.

JAYANT NATH, J NOVEMBER 27, 2014 n