Delhi High Court
Kumar Steel Inc. vs Iffco Tokio Gen Ins. Co. Ltd. & Ors. on 3 August, 2017
$~R-57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 03rd August, 2017
+ MAC.APP. 73/2009
KUMAR STEEL INC. ..... Appellant
Through: Ms. Amandeep Kaur and Mr.
Sumit Gupta, Advocates
Versus
IFFCO TOKIO GEN INS. CO. LTD. & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Adv. for R-2
to 6
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Shokender, then 28 years old, concededly an employee of the
appellant, was riding on a scooter bearing registration no.HR-10G-
9151 on 28.11.2005 when it met with an accident around 8.42 a.m.
resulting in injuries being suffered that proved fatal. His wife and
other members of the dependent family, they being second to sixth
respondents (collectively, the claimants), instituted accident claim
(petition no.323/2006) on 15.02.2006 seeking compensation, invoking
the structured formula on the principle of no fault liability under
Section 163A of the Motor Vehicles Act, 1988 impleading the
appellant herein as the first respondent, it concededly being the
registered owner of the scooter in question. In addition, Iffco Tokio
General Insurance Co. Ltd. (first respondent in the appeal) was also
impleaded as second respondent to the claim petition.
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 15.05.2008, found a case made out for
compensation to be awarded in terms of Section 163 A. It computed
the compensation in the total sum of Rs.7,82,000/-, this inclusive of an
amount of Rs.7,02,000/- calculated as the loss of dependency and
Rs.60,000/- towards loss of love and affection and Rs.20,000/-
towards funeral expenses. It, however, found that the insurance
company was not liable to indemnify and consequently exonerated the
said party from any responsibility fastening the liability on the
appellant to pay.
3. On the question of computation of compensation, learned single
Judge, then in seisin of the matter, by order dated 01.06.2010, held
that the proper compensation that was payable in terms of the
Workmen's Compensation Act, 1923 (now known as Employees'
Compensation Act, 1923) worked out to Rs.5,50,000/-, this taking into
account that the deceased was an employee of the appellant and he
was on some official errand of the company moving on the scooter of
his employer. Thus, directions were given to the appellant to pay
Rs.5,50,000/- to the claimants, this from out of the amount deposited
by the appellant in terms of the earlier directions in the order dated
03.02.2009. The said amount has already been accordingly released to
the claimants.
4. The order dated 01.06.2010 had settled the subject of fair and
just computation of compensation that can be claimed by the claimants
in these proceedings. It not having been challenged has attained
finality. The counsel for the claimants fairly conceded that given the
jurisdiction of Section 163A of the Motor Vehicles Act, 1988 that was
invoked by the claimants in the proceedings taken out before the
Tribunal, there is no case made out for any further enhancement over
and above the amount which was computed by the said order dated
01.06.2010. He, therefore, does not press for any further hearing so as
to insist on the amount of compensation awarded in the impugned
judgment to be enforced.
5. This leaves the court only with one issue pressed at the hearing
by the appellant i.e. the liability of the insurer to satisfy the award.
This plea, however, must be noted and rejected with reference to the
decisions of the Supreme Court in Oriental Insurance Co. Ltd. Vs.
Shakuntala, MACA 142/2007, decided on 02.03.2016; New India
Assurance Company Ltd. Vs. Sadanand Mukhi & Ors., (2009) 2 SCC
417; and Ningamma and Anr. Vs. United India Insurance Company
Ltd., (2009) 13 SCC 710 which has been followed by this court
consistently by various judgments including New India Assurance Co.
Ltd. Vs. Smt. Neeraj and Ors., MACA 550/2013, decided on
09.05.2016. The evidence on record clearly shows that the deceased
was an employee of the appellant which is the registered owner of the
vehicle in question. By the vehicle of the registered owner (his own
employer) being taken out and used by him, he had stepped into the
shoes of the registered owner (insurer). In these circumstances, he
would not fall in the category of a third party so as to make available
the benefit of the insurance cover taken by the appellant.
6. The appellant, however, presses one more contention at the
hearing, this with reference to Section 53 of the Employees' State
Insurance Act, 1948. This contention is found to be devoid of merit
and reference may be made in this context to the decisions of the
Supreme Court in Helen C. Rebello and Ors. Vs. Maharashtra State
Road Transport Corporation and Anr., 1999 (1) SCC 90 and Vimal
Kanwar and Ors. Vs. Kishore Dan and Ors., (2013) 7 SCC 476 and of
this court in D.T.C. Vs. Harish Ahuja and Anr., MACA 377/2005,
decided on 02.08.2017. The benefit received under the Employees'
State Insurance Corporation Scheme are fruits of the contribution that
would have been made by the deceased to the Employees' State
Insurance Corporation and the same cannot be used as pecuniary
advantage of which the appellant can claim any benefit in the claim
proceedings under Section 163-A of the Motor Vehicles Act, 1988.
7. In view of the above, the award of compensation in favour of
the claimants is restricted to the amount determined by order dated
01.06.2010 and already released pursuant thereto. The amount lying
in balance shall be refunded to the appellant alongwith the statutory
deposit.
8. The appeal is disposed of in above terms.
R.K.GAUBA, J.
AUGUST 03, 2017
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