Delhi High Court
United India Insurance Co.Ltd. vs Rajender Kumar & Ors. on 31 October, 2014
$~A-2 to 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31.10.2014
+ MAC.APP. 103/2008
UNITED INDIA INSURANCE CO.LTD. ..... Appellant
versus
RAJENDER KUMAR & ORS. ..... Respondents
+ MAC.APP. 104/2008
UNITED INDIA INSURANCE CO.LTD. ..... Appellant
versus
JAWAHAR SINGH & ORS. ..... Respondents
+ MAC.APP. 105/2008
UNITED INDIA INSURANCE CO LTD ..... Appellant
versus
ANJU & ORS ..... Respondents
+ MAC.APP. 108/2008
UNITED INDIA INSURANCE CO LTD ..... Appellant
versus
MADHU & ORS ..... Respondents
MAC.APP.103/2008 & connected matters Page 1 of 5
+ MAC.APP. 114/2008
UNITED INDIA INSURANCE CO LTD ..... Appellant
versus
AMRESH & ORS ..... Respondents
+ MAC.APP. 115/2008
UNITED INDIA INSURANCE CO.LTD. ..... Appellant
versus
HARSH & ORS. ..... Respondents
+ MAC.APP. 116/2008
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
versus
RAJENDER KUAMR & ORS. ..... Respondent
+ MAC.APP. 117/2008
UNITED INDIA INSRUANCE CO.LTD. ..... Appellant
versus
RAJENDER KUMAR & ORS. ..... Respondents
Appearance:-
Mr.K.L.Nandwani, Advocate for Insurance Company
Mr.Deepender Hooda, Proxy Counsel for Mr.Arvind Chaudhary, Advocate for
R-1 in all appeals.
Mr.Purshotam Singh, Advocate for Mr.Jagat Singh.
MAC.APP.103/2008 & connected matters Page 2 of 5
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. These appeals are filed by the appellant Insurance Company and all raise
a common issue.
2. The brief facts giving rise to the claim petitions are that on 17.01.2004
the claimants were all travelling together and coming back to Delhi after
attending a marriage function at Khatauli. They were all travelling in a Tata
Sumo car said to be borrowed by Amresh from his friend Manish Bhalla. It is
said that the driver of the said Tata Sumo was driving in a very rash and
negligent manner and did not pay any heed to the request of the passengers to
drive carefully. He lost control of the vehicle and smashed it with a big tree on
the left side. As a result of forceful impact, three persons, namely, Master
Ravinshu, Kumari Swati and Kumari Shivani lost their lives and other persons
namely, Amresh, Rajender Kumar, Harsh, Smt. Anju and Smt. Madhu suffered
bodily injuries.
3. Learned counsel appearing for the appellant Insurance Company
strenuously urges that the Tata Sumo car was registered with RTO as a private
vehicle and was also insured with the appellant Company as a private vehicle
yet it was being used as a taxi for hire purpose which was contrary to the terms
and conditions of the Insurance Policy. Hence, learned counsel submits that the
appellant Insurance Company is not responsible or liable to pay any amount of
compensation and the owner and the driver of the offending vehicle are the
ones who are liable to pay.
4. Eight separate claim petitions were filed. By the present eight appeals
the appellant Insurance Company seeks to impugn the Award dated
12.12.2007. A perusal of the Award shows that the contentions now being
raised by the appellant Insurance Company appear to have been neither argued
nor raised before the Tribunal. The Tribunal has rendered no findings on this
issue whatsoever and has directed the appellant Insurance Company to deposit
the award amount along with interest. I am also told at the bar that the parties
have already recovered the full amount by means of an execution petition and
have received the full compensation.
5. The Award also reveals that the Insurance Company did not lead any
evidence. For the respondents only the owner of the vehicle, Manish Bhalla
who was respondent No.4 before the Tribunal has led his evidence as R4W1.
6. The evidence of Sh. Manish Bhalla R4W1 shows that in his affidavit by
way of evidence he has stated that Amresh is his friend who borrowed the
offending vehicle from him for purpose of attending a marriage along with his
family members. He has further said that he provided Amresh with an
experienced driver. In his cross-examination he has stated that Amresh was his
long time friend and being a friend he had given the vehicle to Amresh for 2-3
days to attend a marriage in his family. He states that the vehicle is a private
vehicle and he had given the same to the Amresh without any consideration.
Relevant portion of his cross-examination reads as follows:-
"Amrish is my friend for a long time. Being a friend I had
given my vehicle to Amrish for two/three days to attend a
marriage in his family. The vehicle is a private vehicle. I had
given the vehicle to Amrish without any consideration.
7. Similarly, PW-6 i.e. Amresh in his affidavit by way of evidence has
stated that he borrowed the offending vehicle from his friend Manish Bhalla.
There is no cross-examination done of his on this statement.
8. PW-1 has also made a similar statement in his affidavit by way of
evidence. PW-1 Sh. Rajender Kumar has also stated that the offending vehicle
was borrowed by his sister's son Amresh from his friend Manish Bhalla. He
was cross-examined in detail. He has denied that he was going as a paid
passenger in the said Tata Sumo. He has also denied that he was travelling as a
passenger after hiring the vehicle.
9. In the light of the above evidence, it is clear that there is no evidence led
by the appellant to show that the offending vehicle was being used as a taxi or
was used on hire by the passengers travelling in the same. Witness after witness
deposed that the vehicle was borrowed from the owner on account of the
friendship of Manish Bhalla, R4W1 and Amresh PW6 . Further, this
submission has not been made before the Tribunal. Hence the contention has
neither been argued nor proved before the Tribunal. There is clearly no merit in
the submissions of the appellant. These appeals are accordingly dismissed.
10. Statutory amount, if any, paid by the appellant Insurance Company at the
time of filing of the appeal may be refunded.
11. All pending applications stand dismissed.
JAYANT NATH, J
OCTOBER 31, 2014
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