Gomti Prashad vs Rajender & Anr (National ...
2016 Latest Caselaw 7014 Del

$~28

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Decision: November 21, 2016

+                             MAC.APP. 119/2016
       GOMTI PRASHAD                                      ..... Appellant
                   Through:             Mr. H.N. Pandey, Advocate

                     versus

       RAJENDER & ANR (NATIONAL INSURANCE CO LTD)
                                                ..... Respondent
                    Through: Mr.A.K. Choudhary, Advocate for
                             respondent No.1
                             Mr. Pankaj Seth, Advocate for
                             respondent No.2-insurance
                             company
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% (ORAL)

Impugned Award of 23rd September, 2015 grants compensation of `93,828/- with interest to respondent-claimant in respect of a road accident on 1st June, 2002 in which respondent-claimant had sustained grievous injuries.

The challenge to impugned Award by learned counsel for appellant-driver is on the ground that liability to pay the compensation

has been erroneously put on the owner of the vehicle in question as the insurance premium cheque does not relate to the owner of the vehicle in question.

It is submitted that no information about dishonouring of the insurance premium cheque was given to the owner of vehicle in question and the evidence is silent as to when the insurance premium cheque was presented for encashment. Reliance is placed upon a decision of co- ordinate Bench of this Court in National Insurance Co. Ltd. V. Seema Devi and Others, 2003 VII AD (Delhi) 516 to submit that in a case where no information about dishonouring of cheque/cancellation of policy is given, then in such a case the insurance company is liable to pay the awarded amount. It is also submitted that Tribunal has not apportioned the liability to pay compensation between appellant/driver and the owner of the vehicle in question. Lastly, it is submitted that the liability put upon appellant/driver is unjustified and so, appellant/driver ought to be exonerated and impugned Award needs to be accordingly modified. Nothing else is urged on behalf of appellant-driver.

On the contrary, learned counsel for respondent-claimant supports the impugned order and submits that the awarded amount is on the lower side. Learned counsel for respondent-insurance company submits that this appeal is liable to be dismissed on account of non-joinder of the parties as the owner of the vehicle in question has not been impleaded as a party. It is submitted that in the written statement filed by appellant before the learned Tribunal, the stand taken by appellant now, has not been taken by appellant or the owner of vehicle in question and they have not led any

evidence. It is submitted that the witness produced by respondent- insurance company has not been cross-examined at all and so, this appeal deserves dismissal.

Upon hearing and on perusal of impugned Award, I find that foundation for the pleas taken by appellant herein has not been laid and so, the stand taken by appellant herein cannot be considered. There is no cross-examination of the witness produced by the insurance company to substantiate the stand taken by appellant herein. In such a situation, the reliance upon Seema Devi (supra) is of no avail.

In the light of the aforesaid, I find no substance in the appeal. Accordingly, this appeal is dismissed.

(SUNIL GAUR) JUDGE NOVEMBER 21, 2016 s