Delhi High Court
The New India Assurance Company ... vs Promila Prabhakar & Ors. on 4 December, 2017
$~R-627 & 628
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 04th December, 2017
+ MAC APPEAL 1117/2012 and CM 17951/2012
THE NEW INDIA ASSURANCE COMPANY
LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
PROMILA PRABHAKAR & ORS. ..... Respondents
Through: None
+ MAC APPEAL 184/2013
PROMILA PRABHAKAR ..... Appellant
Through: None
versus
GULBIR SINGH & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Adv. for R-
3/insurance company
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Vikas Prabhakar, a bachelor, stated to be 26 years old, died due
to the injuries suffered by him in a motor vehicular accident that
occurred on 11.10.1997, statedly due to negligent driving of a bus
bearing registration no.DL-1P-3703 by the fourth respondent (driver).
His parents, first and second respondents, instituted accident claim
case (MACT 13/99/11) on 29.07.1999 impleading the siblings of the
deceased, they being fifth and sixth respondents (all collectively the
claimants) seeking compensation. In the said case, the registered
owner of the bus (seventh respondent) was impleaded in addition to
Gulbir Singh (third respondent), he being the person who is stated to
have purchased the said vehicle from the registered owner, this in
addition to the appellant (insurer) with reference to the insurance
policy issued by it in respect of the said offending vehicle for the
period in question at the instance of the seventh respondent (registered
owner).
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 23.07.2012, accepted the case that death had
occurred due to negligent driving of the bus. It awarded compensation
in the total sum of Rs.4,12,700/-, the liability being placed on the
insurer, its plea for exoneration having been rejected.
3. The insurer came up with the appeal (MACA 1117/2012)
submitting that the ownership of the bus having been transferred by
the seventh respondent in favour of the third respondent, there being
no privity of contract between the appellant and the said third
respondent, the liability could not have been fastened upon it.
4. On the other hand, the claimants by their appeal (MACA
184/2013) have submitted grievance that the award is deficient, the
prime contention urged in this regard is that the income earned by the
deceased in United Kingdom should have been the benchmark and not
the minimum wages payable in India, he being a person who was
resident of London (U.K.) where he was earning his livelihood.
5. Both appeals were put in the list of 'Regulars' as per order
dated 24.02.2016. When they are taken up for hearing in their own
turn, there is no appearance on behalf of the claimants. The learned
counsel for the insurer has been heard and with his assistance record
perused.
6. It appears that the claimants had relied on certain documents to
show the income of the deceased. But then, the same were tendered in
evidence through the testimony of Mr. S.K. Prabhakar (PW-1), one of
the claimants, there being no effort made to bring in any other witness
to formally prove the said material which would have a bearing on the
nature of avocation of the deceased or the earnings accruing
therefrom. Keeping in view the facts and circumstances of the case, it
appears just and proper that the claimant be given one more
opportunity to prove their contentions on the subject of loss of
dependency.
7. The manner in which the learned tribunal has handled the issue
of there being no privity of contract between the insurer on one hand
and the person, to whom the registered owner had sold the vehicle on
the other, during the period of contract of insurance taken out at the
instance of the registered owner leaves much to be desired. The core
issue as to who was the person in control at the relevant point of time
has not been addressed. [see judgment dated 14.09.2017 in MACA
524/2008, Sidharth Khetrapal Vs. Mohd. Hanif & Ors.]. The tribunal
has vaguely held that both the registered owner and the person to
whom the vehicle had been transferred, by sale, are jointly and
severally liable and on that account also held the insurer of the
registered owner liable to indemnify. This is not a proper approach to
the matter.
8. Consequently, the impugned judgment is set aside. The claim
case is remitted to the tribunal for fresh adjudication. The parties are
directed to appear before the tribunal on 05.02.2018.
9. By order dated 16.10.2012, the insurance company had been
directed to deposit the entire awarded amount with up-to-date interest
with UCO Bank, Delhi High Court Branch and from out of such
deposit, eighty percent (80%) of such amount was directed to be
released to the claimants. The balance lying in deposit shall be
presently refunded along with 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.
10. Both the appeals and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
DECEMBER 04 , 2017
yg
