Delhi High Court
Oriental Insurance Co. Ltd. vs Shri Rahul Sharma & Ors. on 27 January, 2015
Author: G.P. Mittal
$-19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th January, 2015
+ MAC.APP. 1092/2013
ORIENTAL INSURANCE CO. LTD.
..... Appellant
Through: Mr.Sandeep Kumar, Advocate
versus
SHRI RAHUL SHARMA & ORS.
..... Respondents
Through: Ms. H. Bhargav, Advocate for
Respondent no.1.
Mr. S.S. Mahaur, Advocate for
Respondent no.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
ORDER
G. P. MITTAL, J. (ORAL)
1. The Appellant Oriental Insurance Co. Ltd. impugns judgment
dated 26.08.2013 passed by the Motor Accident Claims
Tribunal(the Claims Tribunal) whereby compensation of
Rs.14,54,005/- was awarded in favour of Respondent no.1 for
having suffered injuries in a motor vehicular accident which
occurred on 12.10.2011 at about 13:30 hrs.
2. It may be noted that the instant claim petition was filed under
Section 166 of the Motor Vehicles Act, 1988(the Act). The
Appellant Insurance Company in terms of the agreed procedure
made an offer of Rs.6,90,000/- in full and final settlement of the
claim of Respondent no.1. The said offer was however, not
accepted. Thus, the Claims Tribunal proceeded to compute the
compensation on merits without going into the proof of
negligence.
3. It is urged by the learned counsel for the Appellant Insurance
Company that once the offer was not accepted, the petition
under Section 166 of the Act was to be decided on merits. Issue
of negligence was also required to be framed and decided. This
question was gone into by this Court in Oriental Insurance Co.
Ltd. v. Asha Kalra, 2012 Vol(131) DRJ 171. Paras 8 to 13 of
the report in Asha Kalra(supra) are extracted hereunder:
"8. As per Rule 3 (2) of the Agreed Procedure on
receipt of the information about a motor vehicle
accident, the Investigating Officer (IO) is required to
intimate the factum of accident within 48 hours to the
Claims Tribunal as also the Insurance Companies
about the accident. The insurance particulars are to be
intimated by the IO through e-mail. The factum of
accident is required to be updated on the website of the
Delhi Police.
9. Rule 4 (2) of the Agreed Procedure for the first time
talks about the Nodal Officer of an Insurance
Company. Rule 4 and Rule 6 talks about the Nodal
Officer, nominated counsel and Designated Officer of
the Insurance Company and the role assigned to them.
To understand the scheme under the Agreed Procedure,
I would like to extract Rule 4 and Rule 6 hereunder:-
"4 Preparation and forwarding of the Detailed Accident
Report (DAR):
(1) After completion of the above collection and
verification of the documents and investigation as may be
required, the investigating police officer shall complete
the preparation of a detailed accident report [hereinafter
referred to as DAR] in Form "A" not later than thirty
days from the date of the accident. In terms of Rule 3
(1)(c) such DAR shall be accompanied by requisite
documents which shall include copy of the report under
section 173 of the Code of Criminal Procedure, 1973(2
of 1974), medico legal certificate, post-mortem report (in
case of death), first information report, photographs, site
plan, mechanical inspection report, seizure memo,
photocopies of documents mentioned in Clause 3(2)
above, as also a report regarding confirmation of
genuineness thereof, if received, or otherwise action
taken.
(2) Immediately on completion of the above DAR, the
investigating police officer shall forward a copy of the
DAR, under its seal, duly receipted:
(i) To the Claims Tribunal, under a duly attested affidavit
of the investigating police officer-
-where a claim has already been preferred by the
Claimant to such Claims Tribunal or
- where no such claim has been preferred, then before the
Claims Tribunal in whose territorial jurisdiction the
accident has occurred.
(ii) To the Claimant (s) or victims of the accident or their
legal representative(s), as the case may be at the address
supplied by the Claimant to the investigating police
officer, free of charge;
(iii) To the owner/driver at the addressed supplied by the
owner /driver to the police investigating officer, at a cost
of Rs. Five per page;
(iv) To the nodal officer of the concerned Insurance
Company at a cost of Rs. ten per page.
(3) The Investigating Officer of the Police shall also
furnish a copy of Detailed Accident Report along with
complete documents to Secretary, Delhi Legal Services
Authority, Central Office, Pre-Fab Building, Patiala
House Courts, New Delhi. Delhi Legal Services Authority
shall examine each case and assist the Claims Tribunal
in determination of the just compensation payable to the
claimants in accordance with law.
(4) Where the Investigating Officer is unable to complete
the investigation of the case within 30 days for reasons
beyond his control, such as cases of hit and run
accidents, cases where the parties reside outside the
jurisdiction of the Court cases, where the driving licence
is issued outside the jurisdiction of the Court, or where
the victim has suffered grievous injuries and is
undergoing treatment, the Investigating Officer shall
approach the Claims Tribunal for extension of time
whereupon the Claims Tribunal shall suitably extend the
time in the facts of each case.
(5) The Investigating Officer shall produce the driver,
owner, claimant and eye-witnesses before the Claims
Tribunals along with the Detailed Accident Report.
However, if the Police is unable to produce the owner,
driver, clamant and eye-witnesses before the Claims
Tribunal on the first date of hearing for the reasons
beyond its control, the Claims Tribunal shall issue notice
to them to be served through the Investigating Officer for
a date for appearance not later than 30 days. The
Investigating Officer shall give an advance notice to the
concerned Insurance Company about the date of filing of
the Detailed Accident Report before the Claims Tribunal
so that the nominated counsel for the Insurance
Company can remain present on the first date of hearing
before the Claims Tribunal.
(6) The duties enumerated in Clause (3) and (4) above
shall, as per Rule 3(2) of the 2008 Rules be construed as
if they are included in Section 60 of the Delhi Police Act
1978 (34 of 1978) and any breach thereof shall entail
consequences envisaged in that law, as provided for
under Rule 3(2)."
"6. Procedure on receipt of the detailed accident report:
(1) The Claims Tribunals shall examine whether the
Detailed Accident Report is complete in all respects and
shall pass appropriate order in this regard. If the
Detailed Accident Report is not complete in any
particular respect, the Claims Tribunal shall direct the
Investigating Officer to complete the same and shall fix a
date for the said completion.
(2) The Claims Tribunals shall treat the Detailed
Accident Report filed by the Investigating Officer as a
claim petition under Section 166(4) of the Motor Vehicles
Act. However, where the Police is unable to produce the
claimants on the first date of hearing, the Claims
Tribunal shall initially register the Detailed Accident
Report as a miscellaneous application which shall be
registered as a main claim petition after the appearance
of the claimants.
(3) The Claims Tribunal shall grant 30 days time to the
Insurance Company to examine the Detailed Accident
Report and to take a decision as to the quantum of
compensation payable to the claimants in accordance
with law. The decision shall be taken by the Designated
Officer of the Insurance Company in writing and it shall
be a reasoned decision. The Designated Officer of the
Insurance Company shall place the written reasoned
decision before the Claims Tribunal within 30 days of the
date of complete Detailed Accident Report.
(4) The compensation assessed by the Designated Officer
of the Insurance Company in his written reasoned
decision shall constitute a legal offer to the claimants
and if the claimants accept the said offer, the Claims
Tribunal shall pass a consent award and shall provide 30
days time to the Insurance Company to make the payment
of the award amount. However, before passing the
consent award, the Claims Tribunal shall ensure that the
claimants are awarded just compensation in accordance
with law. The Claims Tribunal shall also pass an order
with respect to the shares of the claimants and the mode
of disbursement.
(5) If the claimants are not in a position to immediately
respond to the offer of the Insurance Company, the
Claims Tribunals shall grant them time not later than 30
days to respond to the said offer.
(6) If the offer of the Insurance Company is not
acceptable to the claimants or if the Insurance Company
has any defence available to it under law, the Claims
Tribunal shall proceed to conduct an inquiry under
Sections 168 and 169 of the Motor Vehicles Act and shall
pass an award in accordance with law within a period of
30 days thereafter.
(7) Where the Claims Tribunal finds that the D.A.R. and
in particular the report under Section 173, The Criminal
Procedure Code, 1974 annexed to such D.A.R. has
brought a charge of rash and negligent driving, or the
causing of hurt or grievous hurt the Claims Tribunal
shall register the claim case under Section 166 of The
Motor Vehicles Act,1988. In cases where the DAR does
not bring a charge of negligence or despite the charge of
negligence the Claimant(s) before the court chose to
claim on a no-fault basis, the Claims Tribunal shall
register a claim case under Section 163A, The Motor
Vehicles Act,1988;
(8) Provided that in cases where the accident in question
involves more than one vehicle and persons connected to
all such vehicles stake a claim for compensation, the
D.A.R. shall be treated as an application for
compensation claim case shall be presumed to be a claim
case preferred by each of them."
10. Thus, as per Rule 4 (2) of the Agreed Procedure, the
IO is required to forward a copy of the DAR to the
Nodal Officer of the Insurance Company on payment of
charges @ `10/- per page.
11. Rule 4 (5) of the Agreed Procedure lays down that
the IO shall give an advance notice to the Insurance
Company about the date of filing of the DAR before the
Claims Tribunal so that the nominated counsel for the
Insurance Company can remain present on the first
date of hearing before the Claims Tribunal.
12. Rule 6 (3) of the Agreed Procedure enjoins an
Insurance Company to communicate its reasoned
decision to the Claims Tribunal through its designated
officer within a period of 30 days on receipt of DAR.
This reasoned decision is basically a legal offer given
by the Insurance Company to the Claimant. If the same
is accepted by the Claimant, the matter comes to an end
and an order is required to be passed by the Claims
Tribunal in view of the offer by the Insurance Company
and its acceptance by the Claimant.
13. Rule 6 (6) of the Agreed Procedure talks about
situation where the legal offer is not acceptable to the
Claimant or where the Insurance Company has a
defence available to it under the law in that eventuality,
the DAR has to be inquired into as a Claim Petition
under Section 166 or 163-A of the Act."
4. In view of the above judgment, Detailed Accident Report(DAR)
ought to have been treated as the claim petition under Section
166 of the Act and decided in accordance with law.
5. The impugned order therefore, cannot be sustained; the same is
accordingly, set aside.
6. The appeal is allowed in above terms.
7. The parties are directed to appear before the Claims Tribunal on
27.02.2015.
8. Trial Court Record be returned through Special Messenger.
9. Since this accident occurred on 12.10.2011, a lot of time has
been wasted on account of passing of the impugned order and
the instant appeal. It is expected that the Claims Tribunal shall
make an endeavour to decide the petition expeditiously.
10. Pending applications stand disposed of.
11. Statutory amount of Rs.25,000/-, if any, shall also be refunded
to the Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
JANUARY 27, 2015
pst
