Delhi High Court
New India Assurance Co. Ltd. vs Sahira & Ors. on 13 July, 2017
$~28 & 29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th July, 2017
+ MAC APPEAL No.269/2017 & CM Nos. 10587-88/2017
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
SAHIRA & ORS. ..... Respondents
Through: Mr. S.K. Kashyap, Adv. for R-1
& 2.
Mr. Vageesh Sharma, Adv. for
R-3 & 4.
Mr. Neeraj Sharma, Adv. for R-
5.
+ MAC APPEAL No.289/2017 & CM Nos. 11343-44/2017
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
SAHIRA & ORS. ..... Respondents
Through: Mr. S.K. Kashyap, Adv. for R-1
& 2.
Mr. Vageesh Sharma, Adv. for
R-3 & 4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Raheesh and Babar Khan, sons of first and second respondents
in these appeals (hereinafter referred to as the claimants) were moving
on motorcycle bearing registration no. DL 4SNA 2230 (hereinafter
referred to as the motorcycle), the former driving and the latter on the
pillion on 12.12.2011, and when they had reached main traffic light of
Sectors 12 and 22 of Noida at about 9.45 p.m., bus registration No. DL
1PA 5698 (hereinafter referred to as the bus) came and collided
against them resulting in both suffering injuries, consequent
whereupon both died. Raheesh was married while Babar Khan was a
bachelor. The claimants instituted claim cases (MAC Nos. 42 and
43/2013) for compensation in each case. In the former, Farha Rani,
wife of Raheesh was impleaded as fifth respondent. The bus on
account of rash driving of which the accident statedly occurred was
owned by Raj Kumar (fourth respondent in these appeals) and it was
driven at relevant point of time by Ravi Kumar (third respondent in
these appeals), it being insured against third party risk with New India
Assurance Company Ltd. (the appellant). The driver, owner and the
insurer were impleaded as respondents in the claim proceedings.
2. The tribunal clubbed the two cases and held inquiry and, by
common judgment dated 04.01.2017, accepted the cases of deaths
having occurred due to negligent driving of the bus. Compensation in
the sum of Rs. 8,35,208/- was awarded in the case of death of Raheesh
and compensation in the sum of Rs. 5,36,452/- was awarded in the
case of death of Babar Khan. In each case, interest @ 12% per annum
was added. The insurance company was directed to satisfy the award
in terms of its statutory/contractual liability. Apportionment including
in favour of widow, Raheesh Khan, was made.
3. The insurance company by these appeals submits that the
evidence on the question of negligence was deficient. Its other
contention is that the driving license of Ravi Kumar (third
respondent), though valid for the period in question, had been got
issued on the basis of a document purporting to be a driving license
for an earlier period, which upon verification, has been found to be
fake. It is on the basis of verification report subsequently received on
14.02.2017 to this effect that opportunity is sought to lead evidence
under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (CPC),
the insurance company is also aggrieved with the interest levied, its
submission being it is too excessive.
4. Having heard the learned counsel on all sides and having gone
through the tribunal's record, this Court is of the opinion that the
finding returned by the tribunal on the issue of negligence cannot be
questioned. The claimants had examined PW-2 as an eye witness,
also the person on whose statement the police had registered the
corresponding criminal case. His statement clearly shows that the
motorcycle of the deceased persons had been hit by the bus from
behind, it having come to the junction of the two roads at a high speed
which apparently was beyond the control of its driver. The evidence of
PW-2 was not controverted by the driver by any effective cross-
examination. He (the driver of the bus) was not called upon to depose
to give his version of the sequence of events leading to the collision.
With his explanation having been kept out, there is no reason why the
testimony of PW-2 should be disbelieved. The plea of the insurance
company on this ground is, thus, rejected.
5. The rate of interest levied by the tribunal is unduly high.
Following the consistent view taken by this Court, the award is
modified to that extent. The rate of interest shall be 9% per annum on
which the insurance company would be liable to satisfy the award in
each case.
6. In view of the decision dated 12th July, 2018 in CM(M)
1104/2013 titled as M/s the New India Assurance Co. Ltd. vs. Sh Zakir
Hussain & Anr., the plea based on document which was used for
obtaining license for the period in question being fake, cannot be
accepted, particularly in absence of any material indicating that the
owner of the vehicle (the person insured) was party to any such
design.
7. The appeals stand disposed of in above terms.
8. By order dated 17.03.2017 on the file of MAC Appeal No.
269/2017 and by order dated 22.03.2017 on the file of MAC Appeal
No. 289/2017, the insurance company was directed to deposit the
entire awarded amount with interest in each case with the tribunal.
The tribunal shall release the amounts to the claimants in terms of the
award, as modified above, refunding the excess to the insurance
company.
9. Statutory amounts shall be refunded.
R.K.GAUBA, J.
JULY 13, 2017/nk
