Delhi High Court
Bajaj Allianz General Insurance ... vs Kamla Bist & Ors. on 23 February, 2016
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd February, 2016
+ MAC.APP. 432/2009
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD...... Appellant
Through: Mr. Rajat Brar, Adv.
versus
KAMLA BIST & ORS. ..... Respondents
Through: Mr. Bhupesh Narula, Adv. for R-1 to
4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Hikmat Singh, aged 44 years, working as Security Assistant in Lok
Sabha Secretariat, Parliament House, New Delhi suffered injuries in a motor
vehicular accident that occurred on 27.05.2002 involving a motor vehicle
bearing No.DL-2CP-1031 (the offending vehicle) which was admittedly
insured against third party risk with the appellant Insurance Company. He
preferred a claim petition under Section 166 read with section 140 of the
Motor Vehicle Act, 1988 (MV Act) before the Motor Accident Claims
Tribunal (Tribunal) on 08.08.2002, impleading the appellant insurance
company as the second respondent in addition to Suryadeo Prasad, the driver
cum owner of the offending vehicle (sixth respondent herein).
2. While the sixth respondent in his written statement denied any
involvement of the offending vehicle, the appellant insurance company
contested on the ground that the accident had occurred on account of
negligence on the part of the Hikmat Singh himself and further that the
driver of the offending vehicle was not in possession of a valid driving
licence and, thus, on account of breach of terms & conditions of the
insurance policy, the appellant could not be directed to indemnify.
3. During the pendency of the inquiry into claim petition, Hikmat Singh
died on 29.08.2006. His widow and other legal heirs (first to fifth
respondents, hereinafter referred to as the claimants) made an application on
02.07.2007 under Order 22 Rule 3 of the Code of Civil Procedure, 1908
(CPC) seeking to be substituted so as to take over the claim case. The said
prayer on their behalf was allowed and the claim petition was prosecuted
thereafter by the claimants.
4. Noticeably, before his death, the original claimant Hikmat Singh had
examined himself as PW-1. In addition he had examined Kushal Sarkar
(PW-2), Executive officer, Lok Sabha Secretariat to bring on record
documentary proof in relation to his status, employment, income and leave
availed on account of injuries suffered in the accident. After the death of
Hikmat Singh, the petition having been taken over by his legal heirs, no
further evidence was led.
5. The proceedings were concluded on the basis of claim case
prosecuted further by legal heirs of the original claimant (injured/victim) for
seeking compensation for the injuries suffered by him. The tribunal by
judgment dated 19.05.2009, modified by subsequent order dated 02.07.2009,
awarded ` 10,66,020/- as compensation mainly on account of loss of income
in the sum of `10,06,020/- in addition to expenditure on account of
conveyance and special diet of ` 15,000/-, with further additions to the
effect of permanent disability to the extent of `25,000/- and compensation
for loss of enjoyment and amenities of life in the sum of `20,000/-.
6. During the hearing on the appeal brought by the Insurance Company
challenging the quantum of the compensation, learned counsel for the
claimant fairly conceded that the compensation for the effect of permanent
disability and loss of enjoyment and amenities of life being personal in
nature, claims to that effect would not have survived after the death of
injured victim and that compensation can be claimed only for whatever
expenditure had been incurred as loss to the estate and on account of loss of
income consequent to the injuries as indeed the expenditure incurred on the
treatment, conveyance and special diet etc.
7. Leaned counsel for the claimants submitted that due to lack of proper
legal advice, necessary evidence about the loss of estate could not be
brought before the Tribunal and that the claimant may be allowed
opportunity to lead further evidence. With the submission that the impugned
judgment suffers from an error in proper calculation of the compensation, he
joined in the prayer that it be set aside but prayed that the matter be remitted
back to the tribunal for further inquiry and fresh adjudication.
8. The counsel for the appellant insurance company submitted that he
has nothing to say on the prayer for additional opportunity for evidence to be
granted.
9. In the facts and circumstances noted above, the appeal is allowed and
the impugned judgment is set aside. The matter is remitted to the Tribunal
for appropriate further proceedings in accordance with law in light of the
submissions of the parties recorded above.
10. The parties shall appear before the Tribunal on 30.03.2016.
11. By order dated 04.11.2009, the appellant has been directed to deposit
`1,00,000/- with the Registrar General of this Court within the period
specified upon which the execution of the impugned award was stayed. By
the said order the statutory amount of `25,000/- was directed to be kept in
fixed deposit initially for a period of six months to be renewed thereafter till
further orders.
11. By order dated 08.02.2010, the said entire amount of `1,25,000/- was
directed to be released with accrued interest to the claimants in equal shares.
In the facts and circumstances, the said amount shall be liable to be adjusted
appropriately upon fresh determination of the compensation awardable in
the case.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J
FEBRUARY 23, 2016/afa
