Delhi High Court
Usha Sherawat vs Bajaj Allianz General Insurance ... on 6 July, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 6th July, 2017
+ MAC.APP. 487/2017 and CM APPL.19915/2017 (delay)
USHA SHERAWAT ..... Appellant
Through: Ms. Prabha Sharma, Advocate
with Mr. Balraj, Advocate
versus
BAJAJ ALLIANZ GENERAL INSURANCE CO LTD & ORS
..... Respondent
Through: Mr. Arihant Jain, Advocate for
Mr. Rajat Brar, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant concededly is the registered owner of bus bearing
registration no.DL-1PB-4595 on account of negligent driving of which
an accident is stated to have taken place on 19.05.2007 giving rise to a
cause of action to claim compensation in favour of second respondent
who filed a claim petition (petition no.522/2008) before the Motor
Accident Claims Tribunal (the tribunal). The appellant herein was
impleaded as second respondent in said proceedings and was
concededly served and even filed a written statement seeking to
contest. The said proceedings eventually resulted in judgment dated
13.05.2009 whereby compensation in the sum of Rs.92,500/- was
awarded in favour of the second respondent with interest, the liability
having been fastened against the first respondent (insurer) which had
issued an insurance policy covering third party risk at the instance of
the appellant.
2. The insurer, however, had taken the plea of breach of policy
condition on the ground the vehicle was not covered by a valid permit
as on the date of the accident. This issue was considered on the basis
of evidence led and the contention of the insurer was found to be
correct. On the basis of such conclusion while being directed to pay
compensation initially to the claimant, recovery rights against the
appellant were granted by the Tribunal. She later moved an
application under Order IX Rule 13 of the Code of Civil Procedure,
1908 (CPC) it being MACT No.114/2017, which was dismissed by the
Tribunal by order dated 22.03.2017.
3. By the appeal at hand, challenge is brought to the conclusion
reached by the Tribunal in the impugned judgment on the contention
that the appellant had secured a valid permit ten days after the event
and that there was no negligence on the part of the driver, the plea of
the appellant primarily being that the claimant himself was negligent.
4. In above context reference is made to the admission in his
cross-examination (as PW-1) that he was under the influence of liquor
when he was crossing the road at the time of the accident. Mere
admission that the claimant had partaken alcohol before coming on the
road as pedestrian takes the appellant nowhere. The evidence
otherwise led proved that the prime cause of accident was negligent
driving on the part of the driver of the offending vehicle. Consumption
of alcohol is not shown by any material to have led to the faculties of
the claimant being affected to such an extent as to have resulted or
contributed to the cause for accident. The contention to such effect
required some further proof being brought out during the cross-
examination of the claimant at the time of inquiry which opportunity
was never availed by the appellant.
5. The plea of the appellant that the counsel engaged by her was
negligent has been duly considered and rightly rejected by the
Tribunal by order dated 22.03.2017. Mere engagement of the counsel
would not relieve the party of the duty to prosecute the defence
effectively in the judicial forum particularly at the stage of inquiry.
6. It is inherent in the plea concerning the permit that there was no
valid permit in existence on the date the cause of action arose.
7. In above view, the appeal is devoid of substance and is
dismissed in limine.
8. The statutory amount, if deposited, shall be refunded only upon
the liability in terms of the impugned award being satisfied.
R.K.GAUBA, J.
JULY 06, 2017
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