Delhi High Court
The New India Assurance Co. Ltd. vs Usha & Anr. on 30 August, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th August, 2017
+ MAC.APP. 185/2016 and CM APPL.7023/2016
THE NEW INDIA ASSURANCE CO. LTD. .... Appellant
Through: Mr. Shoumik Mazumdar proxy
counsel for Mr. Pankaj Seth,
Advocate
versus
USHA & ANR. ..... Respondents
Through: Mr. Mayank Khurana,
Advocate for R-1.
Ms. Mamta, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1.
1. Usha, the first respondent, suffered injuries in a motor vehicular
accident that occurred on 01.09.2012, involving a motor vehicle
described as tractor bearing registration no.HR-13B-4156, admittedly
insured against third party risk with the appellant insurance company
(insurer). On her claim petition (Suit No.348/2012), the Motor
Accident Claims Tribunal (the tribunal), by judgment dated
08.01.2016, granted compensation in the sum of Rs.4,10,575.10p
directing the insurance company to pay with interest @ nine per cent
(9%) per annum.
2. The insurer is in appeal raising three contentions; one, that there
was no issue framed on the question of negligence; second, that the
tribunal ignored the disability certificate (Ex.PW-1/105) indicating the
extent of permanent disability to be 8% in relation to right lower limb
and went on to assess the functional permanent disability to be to the
extent of 10% to award loss of future earnings; and third, that though
the vehicle in question was light motor vehicle (LMV) and the driver
thereof (second respondent) did hold a licence for LMV, there was no
endorsement for purposes of a transport vehicle.
3. Having heard the learned counsel on both sides and having
perused the record, the appeal of the insurance company on all the
above noted three contentions is found to be meritless.
4. Though there was no separate issue on the question of
negligence, the tribunal did consider the question under the cover of
first issue framed where the anxiety posed was as to whether the
claimant is entitled to get compensation, it being a case of claim under
Section 166 of the Motor Vehicles Act, 1988. Having regard to the
multiple fractures in various bones in the right lower limb suffered and
the permanent effect in their aftermath, the assessment of functional
disability to the extent of 10% cannot be said to be excessive.
5. Though the tribunal was not correct in observing that the
insurance company could file separate suit to recover the
compensation from the registered owner of the vehicle, if there was
breach of the terms and conditions of the insurance policy, the ground
on which such recovery rights are pressed do not impress. The rule of
main purpose and concept of fundamental breach applies. [See
National Insurance Company vs. Swaran Singh (2004) 3 SCC 297].
6. The appeal along with accompanying application is, therefore,
dismissed.
7. By order dated 26.02.2016, the insurance company had been
directed to deposit the awarded amount with upto-date interest within
the period specified with the tribunal and out of such deposit fifty per
cent (50%) was allowed to be released, the balance ordered to be kept
in interest bearing fixed deposit receipt. The tribunal shall now release
the balance lying in deposit to the claimants in terms of the impugned
judgment.
8. Statutory deposit shall be refunded to the appellant insurance
company,
R.K.GAUBA, J.
AUGUST 30, 2017
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