Delhi High Court
Reliance General Insurance ... vs Jagbir Kaur & Anr. on 4 December, 2017
$~R-631 & 632
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 04th December, 2017
+ MAC APPEAL 1122/2012 and CM 17979/2012
RELIANCE GENERAL INSURANCE COMPANY
LTD. ..... Appellant
Through: Mr. A.K. Soni, Advocate
versus
JAGBIR KAUR & ANR. ..... Respondents
Through:
+ MAC APPEAL 171/2013
JAGBIR KAUR ..... Appellant
Through: None
versus
ADITYA AGGARWAL & ANR. ..... Respondent
Through: Mr. A.K. Soni, Adv. for R-2 /
insurance company
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On the accident claim case of Jagbir Kaur (claimant) arising out
of detailed accident report (DAR) registered on the report of the police
pursuant to investigation into first information report (FIR)
no.309/2011 of police station R.K. Puram, the Motor Accident Claims
Tribunal (Tribunal), by judgment dated 27.07.2012, awarded
compensation in her faovur in the total sum of Rs.10,49,000/-,
fastening the liability on Reliance General Insurance Company Ltd.
(insurer), it concededly having issued an insurance policy covering
third party risk in respect of the car bearing registration no.DL-8CT-
1224, driving of which in a negligent manner had resulted in the death
of Surender Gautam giving rise to the cause of action.
2. The claimant as well as the insurer instituted these appeals
feeling aggrieved with the quantum of compensation determined by
the tribunal. The prime contention of the insurer is that the tribunal
has assumed the income of the deceased at Rs.10,000/- on the basis of
statement of one Gulbir Singh (CW-1) who had been summoned as a
court witness, without veracity of such evidence being tested in any
manner. The claimants, on the other hand, have certain other sets of
grievance to agitate submitting that the compensation granted is
deficient.
3. Both appeals were put in the list of 'Regulars' as per order
dated 23.02.2016. When they are called out for hearing, there is no
appearance on behalf of the claimants. The learned counsel for the
insurer has been heard.
4. A perusal of the record of the tribunal shows that the procedure
adopted by the tribunal cannot be approved of. The claimant had
appeared as her own witness (PW-1) on the strength of her affidavit
(Ex. PW1/A) on 23.03.2012. Thereafter, the matter was adjourned for
evidence of the witness of the respondents or for arguments. On
03.07.2012, the tribunal recorded as under :-
"...It is seen from record that claimants / claiming that Sh.
Surender Gautam (now deceased) was working as a tailor
with Mosco Tailors and earning Rs.10,000/- per month
from the aforesaid vocation and to substantiate the same
the claimants placed on record a certificate issued by one
Gulbeer Singh for Mosco Tailors / proprietor / specialist
in Genets Wear in 2681 Vishwas Nagar, Sahahdra, Delhi.
In order to adjudicate the matter on merits, the
examination of Gulbeer Singh who issued a certificate
dated 05.02.2011 is imperative. Let court notice be issued
to Gulbeer Singh (the aforesaid person) through
concerned IO at state expenses. Adjourned for
RE/aforesaid purposes and arguments for 27.07.2012..."
5. Though the matter was adjourned by the above order to
27.07.2012, the file was again taken up by the Presiding Officer on
23.07.2012, when she recorded as under :-
"..From the available material on record, the following
issues were framed on 23.03.2012 :-
Issues :
1. Whether deceased suffered fatal injuries in an
accident which took place on 16.11.2011 at about
12.00 a.m. on account of rash and negligent driving
of vehicle bearing no.DL-8CT-1224 driven and
owned by respondent no.1 and insured with
respondent no.2? OPP
2. Whether petitioners are entitled to compensation? If
so, to what amount and against which of the
respondents?
3. Relief
6. The reference in the above mentioned order to the proceedings
of 23.03.2012 is unsupported by any material on record. In fact, no
proceedings bearing the date 23.03.2012 are found on the record. Be
that as it may, on 27.07.2012, to which the case had been earlier
adjourned by order dated 03.07.2012, the short order was recorded as
under :-
"Present: None
Vide separate order of even date, the award is pronounced
in the open court whereby injured is awarded compensation
Rs.10,49,000/-. Let copy of this order, award and petition
duly certified by Reader be given to Nazir. Attested copy of
award be given dasti to parties free of cost.
File be consigned to record room..."
7. The corresponding short order dated 27.07.2012 would not so
reflect but the impugned judgment which was passed on the same date
does state that Gulbir Singh, the person described as the proprietor of
Mosco Tailors, had been examined as a court witness. The testimony
of the said court witness reads thus :-
"...I am the proprietor of M/s. Mosco Tailors office at
2681, Pandav Road, Gali No.10, Vishwas Nagar,
Shahdara, Delhi-32. Copy of my letter pad of
proprietorship firm is CW1/1. The deceased Surender
Gautam S/o. Late Murari Lal Gautam R/o. 299,
Ambedkar Chowk, Munirka Village, New Delhi was
working as Tailor in my firm since last two years. I used
to give him Rs.10,000/- per month as salary and
Rs.2,000/- per month as conveyance. The deceased
Surender Gautam was very hardworking tailor and his
future was very bright. I had issued a salary certificate
on my letter pad copy of the same is already exhibited as
Ex. PW1/14 bearing my signature at point A..."
8. Neither the short order nor the judgment nor the deposition
reveal any opportunity having been given to the parties that were
contesting to cross examine the said witness. This, to say the least, is
violation of the principles of natural justice.
9. Against the above backdrop, there is no option before this court
but to set aside the impugned judgment and to remand the matter to
the tribunal for proper inquiry and fresh adjudication. It is ordered
accordingly.
10. Both the parties are directed to appear before the tribunal on
06.02.2018.
11. By order dated 16.10.2012, the insurance company had been
directed to deposit 75% of the awarded amount with up-to-date
interest with the UCO Bank, Delhi High Court branch and from out of
such deposit, fifty percent (50%) was directed to be released to the
claimants. The balance lying in deposit shall be presently refunded
alongwith statutory deposit to the insurance company. The amount
already received by the claimants shall be liable to be adjusted against
the award as determined by the tribunal by its fresh adjudication.
12. Both the appeals and the pending application are disposed of in
above terms.
R.K.GAUBA, J.
DECEMBER 04, 2017
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