Delhi High Court
Oriental Insurance Co Ltd vs Sunil Kumar & Ors on 23 February, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd February, 2016
+ CM(M) 292/2011
ORIENTAL INSURANCE CO LTD
..... Petitioner
Through Mr. Tarkeshwar Nath, Mr. Randhir
Kumar and Ms. Priyanka Parida,
Advs.
versus
SUNIL KUMAR & ORS
..... Respondent
Through Mr. Anand Nandan and Mr. D S
Mishra, Advs. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The insurance company had issued a third party risk insurance policy
in respect of motorcycle bearing registration no.UP 53L 7488 (motorcycle)
which was valid for the period 11.10.2003 to 10.10.2004 including
20/21.03.2004 when the said vehicle was involved in a collision against
Mitsubishi Lancer bearing No.DL 8CG 5870 (the car). The claim petition
presented on 12.01.2005 by Sunil Kumar (the first respondent herein) sought
compensation for the injuries suffered in the said accident, inter alia,
pleading that he was a pillion rider on the motorcycle which had reached
Mexmuellar Marg near Lodhi Road at 12.30 AM (midnight) at which stage it
was hit by the car which had come from the rear side at a fast speed.
Allegations of rash/negligent driving were also made against Neeraj Niranjan
(the second respondent herein), the driver and owner of the motorcycle. The
Tribunal, by judgment dated 18.12.2010, held that the motorcycle rider was
liable to pay compensation in the sum of ₹3,08,083/- to the claimant and
since the motorcycle was insured with the appellant company, it was directed
to pay the said awarded compensation with interest.
2. The insurance company, by appeal at hand, points out that the first
issue framed by the Tribunal was to the following effect :
"Whether petitioner sustained injuries on the night intervening
20/21.03.2004 on account of rash and negligent driving of
Mitsubishi Lancer Car No.DL 8CG 5870 on the part of R-3
Hemant Gogia?"
3. The Tribunal also noted (in para 5) the effect of the deposition of the
claimant during his cross-examination before the Tribunal as under :
"...In cross examination he admitted that on the day of accident
he requested R-1 for lift as he was proceeding towards the same
direction. He denied that accident took place as the car
Mitsubishi Lancer Car hit the motor cycle driven by R-1. He
volunteered that the car was hit by the motor cycle and not vice
versa. He denied that the accident took place due to
imbalancing of heavy bag being carried by the petitioner."
4. The Tribunal concluded on the first issue quoted above that the
accident had occurred due to driving of "the offending vehicle in a rash and
negligent manner" by the motorcycle driver. Clearly, the finding recorded is
not in sync with the issue that was framed. The issue indicated that the
offending vehicle, as understood by the Tribunal, was the car rather than the
motorcycle. There was no issue framed as to the role of the driver of the
motorcycle. There was no finding recorded with regard to the conduct of the
car driver. In the face of the above facts and circumstances, the counsel for
the claimant fairly conceded that the mater has not been appropriately
inquired into and it needs fresh adjudication on the basis of issues to be
properly framed and put to trial.
5. Thus, the appeal is allowed. The impugned judgment/award is set
aside. The matter is remitted to the Tribunal for fresh inquiry in accordance
with law. The parties shall appear before the tribunal for further proceedings
on 08.03.2016.
6. By order dated 15.03.2011, the appellant insurance company had been
directed to deposit the entire award with up-to-date interest with the
Registrar General of this Court within the period specified. By the same
order, 50% of the deposited amount was directed to be released in terms of
the impugned judgment, the balance to be kept in fixed deposit receipt with a
nationalized bank initially for a period one year subject to automatic renewal,
if necessary. Having regard to the above result of the appeal filed by the
insurance company, it is directed that the balance amount lying in fixed
deposit receipt in nationalized bank shall be arranged by the Registrar
General to be transferred to the Tribunal which shall retain it in a
nationalized bank in an interest bearing account initially for a period of one
year to be renewed from time to time, to be availed of for satisfying the
balance claim of the claimant towards compensation as per fresh
determination on the conclusion of further inquiry ordered as above, though
no release shall be allowed before the expiry of the period of appeal to which
the party held accountable will be entitled.
7. Needless to add, given the old pendency of the matter, the Tribunal
shall make endeavour to conclude the inquiry and fresh adjudication
expeditiously, preferably within a period of six months from the date fixed as
above.
8. Statutory deposit, if made, shall be refunded.
9. The Tribunal's record shall be returned.
10. The appeal stands disposed of in above terms.
R.K. GAUBA
(JUDGE)
FEBRUARY 23, 2016/VLD
