Delhi High Court
New India Assurance Co.Ltd. vs Ram Lal Sahu & Ors. on 19 August, 2015
* HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th August, 2015
+ MAC.APP. 108/2013
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. S.L.Gupta, Advocate with
Mr. Ram Ashray, Advocate.&
Mr. Vikash Chandra, Advocate
versus
RAM LAL SAHU & ORS. ..... Respondents
Through: Mr. S.K.Tiwari, Advocate
+ MAC.APP. 116/2013
NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through: Mr. S.L.Gupta, Advocate with
Mr. Ram Ashray, Advocate.&
Mr. Vikash Chandra, Advocate
versus
RAM LAL SAHU & ORS. ..... Respondents
Through: Mr. S.K.Tiwari, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. Both these appeals have been filed by the appellant New India
Assurance Company Limited against the impugned award dated
30.10.2012 passed by the learned Motor Accident Claims Tribunal
(MACT).
2. The main contention of the learned counsel for the appellant is that
they must be given the right to recover the compensation award amount
from owner of the truck at the time of the accident or alternatively from
the owner of the truck at the present time, namely, Sureh Kalra and Om
Prakash Mishra, respondents No.6 and 7 to the appeal.
3. The contention of the learned counsel for the appellant is that
although the appellant Insurance Company has been fastened with the
liability of payment of compensation on account of the fact that it was the
insurer of the Tata Sumo in which the deceased and the injured were
travelling but the accident had taken place of the insured vehicle, namely,
Tata Sumo with a truck bearing registration No.UP-78T-0223 against
which a FIR was registered by the police of District Court Faizabad, U.P.
It has been contended that after this FIR was registered, the Claimants
had amended the Claim Petition impleading the owners of the truck also
as a party. It has been now contended by the learned counsel that since
the accident had taken place on account of the negligence on the part of
the truck driver, therefore, they ought to have been given right to
recovery from the owners of the truck. In any case, it has been contended
that even if the complete right of recovery is not given to the appellant
Insurance Company from the owner of the truck, at least there is a case of
contributory negligence on both the parties, i.e. Tata Sumo driver as well
as the truck driver which resulted in injuries to the Claimant and the death
of the deceased in MAC APP.116/2013 and 108/2013 respectively.
Therefore, it is contended that the appellant may be given right to recover
the amount of compensation from the owners of the truck.
4. I have considered the submission of the learned counsel for the
appellant Insurance Company.
5. The learned counsel for the appellant has not been able to show any
stand in this regard having been taken by them before the learned MACT.
It is not in dispute that the Claim Petition was amended by the Claimants
and the injured. When the Claim Petition was amended, the Insurance
Company must have been given right to file its amended written
statement which has chosen not to exercise the said right and therefore,
no such plea of right to recovery was taken or plea of contributory
negligence was ever taken by the appellant before the learned MACT.
Further, if a plea is not averred than no amount of proof which may be
produced by a party before the Court during the time of recording of
evidence can be taken cognizance of. In the instant case not only this fact
has not been averred but even no iota of proof with regard to shifting of
liability to the truck driver for their negligence contributory or otherwise
was ever set up by the appellant. Therefore, there was complete absence
of any production of evidence on the part of the appellant-Insurance
Company. Moreover, even during the course of arguments before the
learned MACT no such plea was taken. Under these circumstances, now
to urge this plea for the first time before the Appellate Court that they
must be given right to recovery is totally untenable in the eyes of law.
6. I am constrained to observe what has been stated by the learned
MACT in Para 14 of the impugned award, which reads as under:-
"14. The insurance company did not lead any evidence. The
insurance company did not put even a single suggestion to the
petitioner that the petitioner or his wife, the deceased had
borrowed the Tata Sumo from their son, respondent no.2. Even
in the written statement filed by respondent no.3, it is not
averred that deceased (in petition no.448/10) and petitioner (in
petition no.454/10) had borrowed the vehicle from their
son/respondent no.2. The insurance company failed to lead any
evidence to show that the vehicle was borrowed by the
deceased or by the petitioner from the owner. There is
absolutely no evidence on this point. There were some other
relatives of the petitioners in the said vehicle. It is not clear
who had borrowed the vehicle from the respondent no.2 or if
respondent no.2 had handed over his vehicle to driver for
taking all the persons to Delhi. The mother and father of the
respondent no.2 were the occupants of the car. In the absence
of any specific evidence, it cannot be said that mother and
father of the owner of the car had borrowed the vehicle from
their son and had stepped into the shoes of their son. There is
nothing on record to show that deceased and petitioner (in
petition no.454/10) were not falling under the definition of third
party. The petition is therefore maintainable. The issue no.1 is
therefore decided in favour of petitioners and against the
respondents."
7. In view of the aforesaid observations passed by the learned MACT
and the fact that this was not a case which was set up by the appellant-
Insurance Company either in the pleadings or proved by the appellant
before the learned MACT, no cognizance of the same can be taken but it
is only an afterthought and the plea of the appellant is without any merit
and accordingly, the same is dismissed.
8. Since the plea itself is dismissed, therefore, the present appeals do
not have merit in consideration and the same are also dismissed.
V.K. SHALI, J.
AUGUST 19, 2015
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