Delhi High Court
National Insurance Co Ltd vs Master Pratyaksh & Ors on 15 March, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15th March, 2016
+ MAC.APP. 721/2011 & CM APPL. 14792/2011
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
MASTER PRATYAKSH & ORS ..... Respondents
Through: Mr. Mahesh Maini & Ms. Hreeshika
Bhargava, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Rekha Shankar died in a motor vehicular accident that occurred on
19.03.2007 when the scooty bearing registration no.DL-4SBE-0941 (the
scooty), which she was riding, was statedly hit by a truck bearing
registration no.RJ-14-2G-7757 (the truck). It appears that she was married
to fourth respondent (Atul Srivastava) though both had fallen part. From out
of her wedlock, she had given birth to a son Pratyaksh (first respondent
herein) who was only six years old when death occurred. It appears that the
first respondent (the claimant) was under the care and custody of his
maternal uncle (Vikas Shankar) after the death of his mother. A claim
petition was brought before the motor accident claims tribunal (the tribunal)
by Vikas Shankar (the next friend/guardian) for and on behalf of Master
Pratyaksh (the claimant) on 17.04.2007, it having been registered as MACP
no. No.281/2010. In the claim case, the driver and owner (second and third
respondents herein) were impleaded as respondents in addition to the
appellant/insurance company (the insurer), the latter having admittedly
issued a third party insurance policy in respect of the offending vehicle for
the period in question.
2. The claim petition was contested on the ground that the accident had
occurred due to negligence on the part of the deceased. The tribunal framed
issues, the prime one being as to whether Rekha Shankar had died due to
rash/negligent driving of the truck by its driver (second respondent herein).
3. By judgment dated 03.03.2011, the tribunal awarded compensation in
the sum of Rs.31,77,824/- with interest at the rate of seven & half percent
(7.5%) per annum from the date of filing of the petition till realization
apportioning the compensation by specifying the amounts that would fall to
the share of the first respondent (son) and fourth respondent (husband). The
compensation was awarded by the tribunal after returning the finding that
the accident and death had occurred due to negligent driving of the truck by
the second respondent, this on the basis of the fact that some documents
submitted had shown that he had been prosecuted by the police on the basis
of report and investigation into first information report (FIR) and further
because the second respondent (party) had not offered himself as a witness
which, in the opinion of the tribunal, merited adverse inference to be drawn
against him.
4. The insurance company has come up in appeal questioning primarily
the finding on the question of negligence contending that conclusions have
been reached by the tribunal without any evidence whatsoever. It is further
the contention of the insurance company that the calculation of the
compensation by the tribunal was wholly erroneous, particularly on the
question of loss of income (dependency).
5. At the hearing, the learned counsel for the claimant fairly conceded
that in a claim case prosecuted under Section 166 of the Motor Vehicles Act,
1988 (the MV Act), the prime burden of proving the fault on the part of the
offending vehicle is that of the claimant. He also conceded that an eye
witness was available but was not produced. In these circumstances, the
approach of the tribunal to the matter cannot be upheld. The question of
drawing adverse inference against second respondent (the driver of the
offending vehicle) would have arisen only after the claimant had discharged
his primary burden. No such evidence having been brought on record, the
finding recorded by the tribunal on the issue of fault is perverse and, thus,
cannot be upheld.
6. Faced with above fact situation, the learned counsel for the claimant
submitted that instead of petition being dismissed on merits, in all fairness
the matter should be remitted so that the claimant can adduce proper
evidence on the question of negligence. The learned counsel for the
insurance company conceded and submitted that he would not oppose the
said request though he would insist that its contention with regard to the
calculation of the compensation be preserved to be agitated before the
tribunal. Since the computation of the compensation is an issue which
would need to be taken up only after the case has been properly made out
under Section 166 of the MV Act, in the given fact situation, the submission
of the insurance company deserves to be accepted.
7. In above view, the appeal is allowed. The impugned judgment/award
is set aside. The matter is remitted to the tribunal for further inquiry and
fresh adjudication, including on the question of assessment of the
compensation. The parties shall appear before the tribunal for further
proceedings on 25th April, 2016. The tribunal shall first afford opportunity
to the claimant to adduce further evidence. Contesting parties on the other
side shall be entitled to cross-examine the additional witness(es) of the
claimant and also lead evidence in rebuttal, if any.
8. Needless to add, the tribunal will approach all issues with open mind
not feeling bound by the view taken by the tribunal in the judgment which
was impugned before this court in the appeal at hand.
9. By order dated 09.08.2011, the insurance company had been directed
to deposit the entire awarded amount with up-to-date interest with the
Registrar General whereupon the execution was stayed. By order dated
30.08.2013, fifty percent (50%) of the said deposited amount was released to
the first respondent (the claimant). By order dated 24.09.2013, however, it
was clarified that fifty percent (50%) of the deposited amount was to be
released in favour of the first and fourth respondents of the impugned
judgment of the tribunal. The balance amount deposited by the appellant is
still lying in FDR taken out in terms of the order dated 09.08.2011. The
Registrar General shall arrange for the said FDR to be transferred to the
tribunal which shall retain the same in a nationalized bank in FDR initially
for a period of six months to be renewed from time to time.
10. Having regard to the facts and circumstances of the case, it is
desirable that the case is decided expeditiously. Therefore, the tribunal is
requested to decide the matter afresh as early as possible, preferably within
six months from the date of appearance hereby fixed.
11. The amount already released to the claimant and his father (fourth
respondent) shall be subject to fresh adjudication by the tribunal. The entire
share released to the first respondent is lying in FDR. It shall continue to be
so held though with right to draw monthly interest for his regular
maintenance. The amount retained in FDR as above shall be available to the
tribunal for appropriate utilization in light of the judgment to be passed.
12. The statutory deposit, if made, shall be refunded.
13. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 15, 2016
ssc
