Delhi High Court
Saroj Gupta & Anr vs Hariom Chaudhary & Ors (Tata Aig ... on 22 August, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 22nd August, 2017
+ MAC.APP. 148/2017
SAROJ GUPTA & ANR ..... Appellants
Through: Mr. Manu Shahalia, Advocate
versus
HARIOM CHAUDHARY & ORS (TATA AIG GEN INS CO
LTD) ..... Respondents
Through: Mr. Rudhra Kahlon & Ms.
Vandana Kahlon, Advocates.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The claimants are aggrieved with the judgment dated
23.09.2016 of the motor accident claims Tribunal whereby their claim
petition (MACT 3649/2016) was decided, it having been filed in the
wake of detailed accident report (DAR) submitted by the station house
officer (SHO) of police station Hazrat Nizamuddin on the basis of the
investigation into first information report no. 490/2015 respecting the
motor vehicular accident that had occurred on 30.07.2015 resulting in
death of Sakshi Gupta, aged about 26 years at the relevant point of
time. The Tribunal has awarded compensation in the sum of
Rs. 6,87,760/- fastening the liability on the third respondent, it being
the insurer against third party risk of the motor vehicle which was
statedly driven in a negligent manner that being the cause for the
accident.
2. The claimants in the appeal raise procedural issues, their
objections meriting acceptance.
3. The SHO of the police station concerned had submitted DAR,
which in terms of the prevailing norms, was registered as claim
petition under Section 166 (4) of Motor Vehicles Act, 1988 on
04.01.2016. The second appellant, younger sister of the deceased, she
statedly being also a dependent in addition to her mother (first
appellant), had appeared before the tribunal on the very day, the DAR
was submitted. Sakshi Gupta (the victim), at that time was still alive,
she being under treatment for the injuries suffered. The driver, owner
and insurer of the vehicle in question were duly represented. The
Tribunal adjourned the matter to 09.02.2016 calling upon the insurer
to submit "legal offer" and, in the alternative, for conciliation efforts
to be made or reply to be submitted.
4. On 04.03.2016, the tribunal noted that the legal offer had
already been filed by the insurance company. The Tribunal's record,
however, shows the legal offer to have been filed in writing on
23.09.2016 (page 59 of the Tribunal's record). Be that as it may, the
matter was adjourned for consideration of the legal offer to
12.05.2016.
5. Sakshi Gupta, the victim, however, expired, during the
interregnum. This fact was brought to the notice of the tribunal on
12.05.2016, and a request for time to file "fresh petition" was made on
behalf of the claimants and the tribunal adjourned the case to
27.07.2016.
6. On 27.07.2016, it was noted that claim petition had been filed
by the appellants herein which was clubbed with the DAR. The matter
was adjourned for filing of reply on 11.08.2016.
7. On 11.08.2016, the tribunal noted some deficiency in that the
post mortem was still not on record. Process was issued to the
concerned police official and the matter was adjourned to 20.09.2016
for "reply of the respondents".
8. On 20.09.2016, the insurer through counsel submitted that its
"legal offer" was already on record which was being reiterated. The
matter was adjourned to 23.09.2016 for "consideration of the legal
offer", as well as the reply of the remaining respondents.
9. On 23.09.2016, the impugned judgment was passed, the tribunal
noting on the very first page that legal offer had been filed which had
been perused. The tribunal, thereafter, proceed to calculate the loss of
dependency and added awards under the non-pecuniary heads of
damages to determine the compensation payable.
10. It is the grievance of the claimants that in the entire process,
they were not given any opportunity to lead evidence. It is submitted
that the legal offer made by the insurance company in the sum of Rs.
5,97, 455/- was not acceptable to them as it was highly deficient and
that submissions to this effect had been made to the tribunal orally on
23.09.2016 which were not taken note of .
11. Having perused the tribunal's record, this Court finds that the
procedure adopted by the tribunal was wholly misdirected. The legal
offer by the insurance company would not bind the claimants unless
they were to submit consent for an order of compensation to be passed
on its basis. If the offer made by the insurance company was not
acceptable to the claimants, the normal procedure of inquiry would
apply. The tribunal was duty bound to hold an inquiry. It could not
have assumed that the claimants would be accepting the amount
determined by it on the basis of material submitted with DAR. They
are entitled in law to present the entire facts including, and
particularly, on the subject of earnings of the deceased, the element of
future prospects and the extent of dependency loss, this in addition to,
what is also one of the grievances urged, the extent of medical
expenses that were incurred for treatment of the victim during the
period she remained alive after the accident.
12. Given the deficiency in the procedure, the impugned judgment
cannot be sustained. It is accordingly set aside. The matter is remitted
to the tribunal for proper inquiry, in accordance with law, on the claim
petition of the appellants.
13. The parties shall appear before the tribunal for further
proceedings on 19th September, 2017.
14. The presence of the driver and owner of the offending vehicle
was dispensed with during the hearing on the appeal at hand by order
dated 08.03.2017. In this view, the tribunal would be obliged to issue
requisite processes to secure their presence as well.
15. The appeal is disposed of in above terms.
R.K.GAUBA, J.
AUGUST22, 2017
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