Delhi High Court
United India Insurance Co. Ltd. vs Bahuleyan And Ors. on 28 May, 2015
Author: G.P. Mittal
$-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th May, 2015
+ MAC.APP.1103/2012
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
Through: Ms. Suman Bagga, Advocate
versus
BAHULEYAN AND ORS. ..... Respondents
Through: Mr. Dharmender Arya,
Advocate for R-2 & 3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is directed against the judgment dated 06.07.2012
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby compensation of Rs.3,03,849/- was awarded
in favour of Respondent no.1 for having suffered injuries in a
motor vehicular accident which occurred on 05.04.2003.
2. There is twin challenge to the judgment. First, the offending
vehicle was a commercial vehicle, yet no permit was produced
despite notice issued under Order 12 Rule 8 Civil Procedure
Code, 1908(CPC). Thus, the Appellant ought to have been
granted recovery right. Second, the award of Counsel's Fee to
the extent of Rs.16,000/- directly to the counsel is not in
accordance with the Delhi High Court Rules and Orders.
Reliance is placed on the judgment of this Court in ICICI
Lombard General Insurance Co. Ltd. v. Kanti Devi and Ors.,
MAC APP No. 645/2012 decided on 30.07.2012.
3. Respondent no.1 (Claimant) before the Claims Tribunal has not
come forward to contest the appeal. The appeal is contested
only by Respondents no.2 and 3.
4. By an order dated 20.09.2013, the Appellant Insurance
Company was directed to verify the permit, copy of which was
handed over to the learned counsel for the Appellant. The
permit has been found to be genuine. It is urged by the learned
counsel for the Appellant that it was one of the conditions of
permit that the vehicle was not to be plied in the area of NCT of
Delhi as a transit route for going to other States.
5. It is well settled that the initial onus is on the Insurance
Company to prove wilful and conscious breach of the terms and
conditions of the insurance policy. No evidence was produced
by the Appellant to prove that the vehicle in question was being
used as a transit route only. Otherwise also, as per Section
149(2)(a)(i)(c) of the Motor Vehicles Act, 1988 (the Act), to
prove the breach of the terms and conditions of the insurance
policy either the vehicle should be used without permit or the
vehicle should be used for a purpose not allowed by the permit.
It is not the case here. Thus, there was no breach of the terms
and conditions of the insurance policy. The impugned
judgment making the Insurance Company liable to pay the
compensation cannot be faulted.
6. As far as award of a sum of Rs.16,000/- towards Counsel's Fee
directly to Mr. M.R. Singh Sisodiya, Advocate is concerned,
this Court in ICICI Lombard General Insurance Co. Ltd. v.
Kanti Devi and Ors., MAC APP No. 645/2012 decided on
30.07.2012 had gone into the question of granting Counsel's
Fee and concluded in Para 32 as under:
"32. To sum up, it is directed:-
(i) The Claims Tribunal is empowered to award costs
in a Claim Petition in terms of Section 35 read
with Order XXA of the Code.
(ii) The Claims Tribunal is entitled to award the
Counsel's fee in accordance with Rule 1 read with
Rule 1A and Rule 9 of Chapter 16 Volume I of the
Rules extracted earlier.
(iii) In case of compromise/settlement of the claims, the
Claims Tribunal is not entitled to go beyond the
settlement reached between the parties. If the
settlement does not provide for payment of any
Counsel's fee, it shall not be within the domain of
the Claims Tribunal to award the Counsel's fee.
(iv) If the compensation is awarded on the basis of
DAR in pursuance of the legal offer made by the
Insurer, the Claims Tribunal is not empowered to
award any costs unless it forms part of the legal
offer.
(v) The counsel fee can be directly paid to the counsel
only when a specific agreement is filed and the
Claimant requires payment of fee directly to the
counsel because only then the Claimant would be
liable to reimburse the fee or part thereof in case
the award is set aside or varied.''
7. It was thus, concluded that instead of awarding Counsel's Fee,
the Claim Petition could have been allowed with costs and
Counsel's Fee be paid only in accordance with Rules 1, 1A and
9 of Chapter 16 Vol. I of the Delhi High Court Rules and
Orders. At the most, the petition could have been allowed with
costs. Thus, award of Counsel's Fee is accordingly set aside.
8. By an order dated 12.10.2012, the entire award amount(less
counsel's fee) has already been deposited with the Claims
Tribunal and was ordered to be released to the Claimant in
terms of the orders passed by the Claims Tribunal.
9. The appeal is disposed of in above terms.
10. The statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
11. Pending applications, if any, also stand disposed of.
(G.P. MITTAL)
JUDGE
MAY 28, 2015
pst
