Delhi High Court
Icici Lombard General Insurance ... vs Madhu Monga & Ors. on 8 December, 2017
$~R-669 & 669A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 8th December, 2017
+ MAC. APP. 1217/2012 & CM Nos.19722-19723/2012
ANITA BHANDARI & ANR. ..... Appellant
Through: Nemo.
versus
MADHU MONGA & ORS. ..... Respondents
Through: Ms. Kavit Tyagi, Adv. with
Mr. Navneet Goyal, Adv. for R-1.
Ms. Suman Bagga, Adv. with
Ms. Anjali Chawla for R-2.
+ MAC. APP. 134/2013 & CM No.1390/2013
ICICI LOMBARD GENERAL INSURANCE COMPANY
LIMITED ..... Appellant
Through: Ms. Suman Bagga, Advocate
versus
MADHU MONGA & ORS. ..... Respondents
Through: Ms. Kavit Tyagi, Adv. with
Mr. Navneet Goyal, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Madhu Monga (first respondents in these appeals), hereinafter
referred to as "the claimant", had instituted accident claim case
(MACT No.1141/10/08) on 25.07.2008, seeking compensation under
Sections 166 and 140 of the Motor Vehicles Act, 1988 on the
averments that while riding on the cycle rickshaw she had suffered
injuries on 02.06.2008, due to collision involving negligent driving of
car bearing registration No.DL-3CM-3193 (the car), driven by Anita
Bhandari (the first appellant in MAC APP.1217/2012 and the second
respondent in MAC APP.134/2013), hereinafter referred to as "the
driver". The car was concededly registered in the name of her husband
Col. S.K. Bhandari (the owner), second appellant in MAC APP.
1217/2012, respondent in other appeal, and was admittedly insured
against third party risk for the period in question with ICICI Lombard
General Insurance Company Limited (insurer) (appellant in MAC
APP.134/2013 and the second respondent in MAC APP.1217/2012).
The tribunal held inquiry and, by judgment dated 28.08.2012,
accepted the said claim for compensation holding the said driver
responsible for the accident. It awarded compensation in the total sum
of Rs.5,63,066/-, fastening the liability to pay on the insurer with
interest @ 12% per annum, adding that in case of default in payment
within thirty days, rate of interest would stand enhanced to 18% per
annum
2. The driver and owner of the car by their appeal (MAC
APP.1217/2012), question the finding on the issue of involvement of
the car and negligence on the part of its driver, submitting that it was
unfounded. The insurer presses its appeal (MAC APP.134/2013) only
to submit that the rate of interest levied is high and that levy of the
enhanced rate of interest in case of default was uncalled for.
3. These appeals were put in the list of 'Regulars' to come up on
their own turn. When they are taken up for hearing, appellants in
MAC APP.1217/2012 and respondents in the connected appeal have
failed to appear to assist. The counsel for the claimant and the insurer
have been heard and with their assistance the record has been perused.
4. It is noted that the claimant had explained the sequence of
events leading to the accident by her own evidence, she having
appeared as PW-1 on the strength of her affidavit (Ex.PW-1/A). She
spoke about the negligent manner in which the car had come and hit
against the cycle rickshaw leading to it turning turtle resulting in she
suffering injuries. Per contra, the first appellant (in MAC
APP.1217/2012) appeared as witness in the defence (R1W1) on the
basis of her affidavit (Ex.R1W1/A), she also relying on the evidence
of Nirankar Sangwan (R1W2), ASI Madan Lal (R1W3) and Leela
Kakaria (R1W4).
5. Having considered the aforesaid depositions, this court finds no
good reason to interfere in the finding on the issue of involvement of
the car or the negligence on the part its car driver. The witness R1W1
denied any collision, her explanation being that she had only tried to
assist the injured claimant in being shifted for medical aid. Reliance
on the testimony of R1W4 does not give much aid to her in as much
as, it is clear from the evidence that the said witness would have come
on the scene only after the collision had taken place. It may be that
the driver of the car had helped the claimant in receiving medical aid.
But then, that was part of the duty of the motorist under the law. The
findings on the preponderance of probabilities are found to be
appropriate and, therefore, affirmed.
6. The insurer's plea about the rate of interest must be accepted.
There is no special reason set out for levy of higher rate of interest. It
is, thus, reduced to nine per cent (9%) per annum from the date of
filing of the petition till realization. [see judgment dated 22.02.2016
in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi
& Ors.]. There was no justification either for any default rate of
interest to be added. The directions in that regard are set aside.
7. Thus, the appeal (MAC APP.1217/2012) is dismissed, while
MAC APP.134/2013 is partly allowed as above.
8. The statutory deposits shall be refunded to the appellant in each
case.
9. Both the appeals stand disposed of in above terms.
R.K.GAUBA, J.
DECEMBER 08, 2017
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