Delhi High Court
Shalini & Ors vs Vijay Jindal & Ors on 17 March, 2016
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th March, 2016
+ MAC.APP. 148/2011
SHALINI & ORS ..... Appellant
Through Mr. H S Gautam, Adv.
versus
VIJAY JINDAL & ORS ..... Respondent
Through Mr. A K Soni, Adv. for insurance
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Mohit Kumar suffered injuries in a motor vehicular accident that
occurred at about 6.20 AM on 31.07.2003 when scooter No.DL 5S B9654
(the scooter) on which he was riding pillion with his brother Lokesh Kumar
was involved in an accident with motor vehicle described as DL 5C K0077
(the offending vehicle) admittedly insured against third party risk with the
third respondent (insurer) for the period in question. He filed a claim
petition before the motor accident claims tribunal (tribunal) seeking
compensation for injuries suffered by him under Sections 166 and 140 of
Motor Vehicles Act, 1988 (MV Act), which was registered as suit
No.604/2004, impleading the driver and owner of the offending vehicle in
addition to the insurer. On 19.03.2005, while inquiry was midway, he died.
On the application of his widow and two minor children under Order 6 Rule
17 of the Code of Civil Procedure, 1908 (CPC), along with another
application under Order 22 CPC, he was substituted by the said dependent
family members, who also brought in amendments to plead that the death
had occurred on account of injuries suffered in the accident, thus converting
it into a case for compensation arising out of death.
2. It appears Lokesh Kumar, brother of the deceased Mohit Kumar, who
was the driver of the scooter at the time of the accident had also suffered
injuries. He had also similarly preferred a claim petition for compensation
which had been registered as suit No.598/2004. Both the claim petitions
were clubbed for purposes of inquiry. The tribunal decided the said two
petitions by common judgment dated 04.09.2010 awarding compensation in
the sum of ₹1,15,000/- with interest in favour of the legal heirs of Mohit
Kumar (since deceased), declining to treat the claim as one arising out of
death, holding, inter alia, that the death could not be related to the injuries
suffered in the accident for the reason there have been no post-mortem
examination of the dead body.
3. The substituted claimants (legal heirs of Mohit Kumar) have come in
appeal raising grievance that the compensation awarded is inadequate. It
has been submitted at the hearing on the appeal that evidence was led in the
form of medical records to show the connection between the death and the
injuries suffered in the accident. But the same was not considered. The
learned counsel for the appellants at the same time fairly agreed that the
clinical notes which were submitted as proof could not have been proved by
the widow. In this view, the learned counsel for the appellant submitted that
the matter may be remitted to the tribunal so that the claimants can adduce
proper proof of connection between death and the injuries in the accident.
The claimants propose to bring in medical opinion and hospital records in
support.
4. The learned counsel for the insurer on being asked submitted that he
has nothing to say on this subject except that the compensation awarded by
the tribunal in the impugned judgment has already been paid and would
need to be suitably accounted for.
5. In above fact-situation, the appeal is allowed. The impugned
judgment is set aside. The claim case is remitted for further inquiry to the
tribunal wherein the claimants shall be entitled to lead further evidence in
the nature mentioned above. Needless to add, the respondents who appear
contest would be entitled to cross-examine the additional witnesses and also
lead evidence in rebuttal, if any. The tribunal shall pass a fresh judgment,
not feeling bound by the opinion expressed or the view taken on the claim
petition in question in the impugned judgment.
6. It is made clear that the amount already paid shall be liable to be
adjusted against the award that would eventually be passed.
7. The parties are directed to appear before the tribunal on 28.04.2016.
8. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 17, 2016/VLD
