Delhi High Court
New India Assurance Co Ltd vs Sunita & Ors on 26 February, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 26th February, 2016
+ MAC.APP. 651/2010
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. K. L. Nandwani, Adv. along with
Mutika Chaturvedi, Adv. proxy
counsel.
versus
SUNITA & ORS ..... Respondents
Through: Mr. Vikas Yadav & Upma Yadav,
Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Nitin Julka, stated to be 22 years, died as a result of injuries suffered
in a motor vehicular accident that took place at about 03:00 PM on
19.06.2003 allegedly involving car bearing registration no.DL-3CV-4314
which, according to the case set up, was owned by the fifth respondent
herein and driven by her daughter fourth respondent herein, it being covered
under an insurance policy against third party respondent with the
appellant/insurance company (the insurer) for the period in question. It was
stated that the deceased was crossing the road when the car came at a high
speed in a rash/negligent manner and hit him throwing him up in the air, he
falling at some distance suffering the fatal wounds.
2. The mother, father and sister of the deceased (first to third respondent
herein), collectively called the claimants, brought claim petition under
Section 166 read with Section 140 of the Motor Vehicles Act, 1988 (the MV
Act) which was registered by the motor accident claims tribunal (the
tribunal) as suit no.438/2008 (2003), impleading the driver, owner and
insurer of the car as party respondents. The owner and driver of the car, in
their joint written statement, denied liability on their part pleading that the
deceased had statedly jumped in front of the car from out of the railing (on
the divider of the road) so as to fall on the front wind-shield of the vehicle
losing balance and suffering injuries. It was stated that the driver had
herself taken the victim to the hospital for immediate medical treatment.
The insurer, in its written statement, admitted the insurance policy.
3. The tribunal held inquiry on the basis of issues framed, the prime one
being as to whether the death had occurred due to rash/negligent driving of
the car by its driver. No eye witness was examined. The tribunal took note
of the copy of documents relating to report under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C) which had been submitted by the
investigating police in relation to the first information report (FIR)
no.379/2003 which had been registered by police station R. K. Puram, New
Delhi. It referred to the judgment of the Supreme Court in Kaushnuma
Begum vs. New India Assurance Co. Ltd. (2001) 2 SCC 9 and proceeded to
draw conclusions on the assumption that admission about the involvement
of the car itself justified a petition to be maintained under Sections 166 &
140 of the MV Act. Drawing adverse inference as the driver and the owner
of the car had not joined the inquiry or offered their own evidence, and
having regard to the documents pertaining to the chargesheet mentioned
above, the issue concerning rash/negligent driving was decided in favour of
the claimants and on that basis compensation assessed and awarded.
4. By appeal at hand, the insurance company submits that the Supreme
Court in Kaushnuma Begum (supra) had not permitted the approach to the
issue as taken by the tribunal. It is noted from the report of the judgment in
Kaushnuma Begum (supra) that the Hon'ble Supreme Court took resort to
the special provision as to payment of compensation as structured formula
basis under no fault liability principle contained in Section 163-A of the MV
Act. It needs to be noted that in Surender Kumar Arora & Anr. vs. Manoj
Bisla & Ors., (2012) 4 SCC 552, the Supreme Court had clarified that the
dictum in Kaushnuma Begum (supra) would come to the assistance of the
claimant, if a petition were to be filed under Section 163-A of the MV Act.
The view taken in earlier decision reported as Oriental Insurance Co. Ltd.
vs. Meena Variyal, (2007) 5 SCC 428 to the following effect was reiterated:-
".... Therefore, the victim of an accident or his dependants have an
option either to proceed under Section 166 of the Act or under Section
163-A of the Act. Once they approach the tribunal under Section 166
of the Act, they have necessarily to take upon themselves the burden
of establishing the negligence of the driver or owner of the vehicle
concerned. But if they proceed under Section 163-A of the Act, the
compensation will be awarded in terms of the Schedule without
calling upon the victim or his dependants to establish any negligence
or default on the part of the owner of the vehicle or the driver of the
vehicle."
5. Having perused the documents relating to the chargesheet of the FIR
of the case at hand as submitted before the tribunal, it is found that there is
no sufficient material available from which rash or negligent driving on the
part of the driver of the car could be inferred. The site plan rather shows the
stretch of the road where the accident occurred is a straight one with a
divider and no provision for pedestrians to cross over from one side to other.
In these circumstances, it was bounden duty of the claimant to produce
Santosh Kumar, the eye witness, on whose statement FIR had been
recorded. On being asked, the learned counsel for claimants submitted that
though endeavour was made to have Santosh Kumar summoned as a
witness, the said effort were given up as the tribunal had indicated that it
was inclined to grant compensation placing reliance on the decision in
Kaushnuma Begum (supra). This, in the opinion of this court, was wholly
erroneous approach. Faced with above situation, the learned counsel for the
claimant fairly conceded that the matter required further inquiry. He
submitted that the appeal of the insurance company may be allowed but the
matter may be remitted to the tribunal to give opportunity to the claimant to
prove their case under Section 166 of the MV Act, in as much as they would
not be interested in converting it into a petition under Section 163-A of the
MV Act as that is likely to result in a highly deficient award of
compensation.
6. The learned counsel for the insurance company submits that he has
nothing to say on the request of the claimants for the claim petition to be
remitted for further inquiry.
7. In the foregoing facts and circumstances, the appeal of the insurance
company is allowed. The impugned judgment and award are set aside. The
matter is remitted to the tribunal for further inquiry in accordance with law,
during which the claimants will be entitled to lead further evidence to bring
home their case on the principle of fault liability. Needless to add that the
parties which participate and contest shall be entitled to cross-examine such
witnesses as are now presented and also will be entitled to lead evidence in
rebuttal.
8. The parties shall appear for aforesaid purpose before the tribunal on
18th March, 2016.
9. By order dated 29.09.2010, the insurance company had been directed
to deposit the entire awarded compensation with the Registrar General
within the period specified and, out of such deposit, fifty percent (50%) was
allowed to be released to the claimants in terms of the impugned judgment,
the balance having been kept in fixed deposit in a nationalized bank initially
for a period of one year. The balance retained in terms of the said direction
shall now be refunded to the insurance company with the statutory deposit,
if made. The amount already released to the claimants shall be suitably
adjusted in terms of the judgment which shall now be passed by the tribunal
at the conclusion of further proceedings hereby ordered.
10. The appeal is disposed of in above terms.
11. Trial court record be returned.
R.K. GAUBA
(JUDGE)
FEBRUARY 26, 2016/ssc
