Delhi High Court
Asha Rani & Ors. vs National Insurance Co. Ltd. & Anr on 19 July, 2017
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th July, 2017
+ MAC APPEAL No. 374/2008
ASHA RANI & ORS. ..... Appellants
Through: Mr. R.K. Kohli, Adv.
versus
NATIONAL INSURANCE CO. LTD. & ANR ..... Respondents
Through: Mr. Pradeep Gaur, Adv. for R-
1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Vinod Kumar, the husband of the first appellant, he being the
son of the second appellant and the father of the other appellants,
suffered burn injuries on 14.09.2005 and died in the consequence.
This appears to have become subject matter of inquiry into the cause
of death vide daily diary entry no. 11A dated 14.09.2005, followed by
DD entry no. 6A dated 16.09.2005, both logged in police station
Timarpur.
2. The appellants instituted accident claim case (suit no. 488/2006)
on 22.02.2006, impleading the respondents as the parties on the other
side, claiming compensation in terms of Section 163-A of Motor
Vehicles Act, 1988, inter alia, alleging that the injuries had been
suffered because petrol had suddenly overflown out of the carburettor
of motorcycle bearing registration no. DL 1SP 2122 (the motorcycle)
and had caught fire at a time when the deceased was in the process of
cleaning it. The plea raised was that it was an accident on account of
use of a motorcycle within the meaning of the provision contained in
Section 163-A of Motor Vehicles Act, 1988. The second respondent
was impleaded in these proceedings on the plea that it was the
registered owner of the motorcycle, the first respondent herein being
statedly the insurer for the relevant period.
3. The insurer, upon being served with the notice, came with an
application under Order 7 Rule 11 of the Code of Civil Procedure,
1908 (CPC) seeking rejection of the claim petition. The tribunal, upon
consideration of the said application, decided to examine the
maintainability of the claim petition in the light of two questions
namely as to whether the accident had occurred at a public place and,
second, as to whether it had arisen out of "use" of the motor vehicle.
On examining the documents on record, particularly copies of the
proceedings of police in the context of inquiry into the cause of death,
the tribunal answered both the questions against the appellants, and
therefore, dismissed the claim petition at the threshold.
4. Having heard the learned counsel on both sides and having gone
through the tribunal's record, this Court is of the opinion that the
provision contained in Order 7 Rule 11 CPC could not have been
invoked or applied in the facts and circumstances of the case in the
manner done. For considering as to whether the petition is to be
rejected, it is the averments in the petition which only had to be seen.
In the said averments, the claim was that petrol had suddenly come out
of the carburettor and had caught fire engulfing the vehicle and the
deceased resulting in the mishap. The tribunal has instead gone by
certain documents which are on record, particularly yet
unauthenticated copy of document purporting to have been written by
one of the sons of the deceased seeking waiver of the post-mortem
examination on the ground that the incident had occurred per chance.
It does appear that, in the said request for waiver of the post-mortem
examination, the incident is described differently. But then, the
claimants were entitled to prove facts as had been pleaded in the
petition. Such opportunity was never made available as the petition
was rejected rather than being put to inquiry.
5. For the foregoing reasons, the impugned order is set aside. The
claim petition is restored on the file of the tribunal which shall proceed
further in accordance with law and take a fresh decision. Needless to
add, for proceeding further, the tribunal shall call upon the
respondents to first file their written statements in answer to the claim
petition. It is such pleadings which shall result in the inquiry and fresh
adjudication which, of course, must be based on evidence, for which
opportunity will have to be given to all sides.
6. The parties shall appear before the tribunal on 17th August,
2017.
7. The appeal is disposed of in above terms.
R.K.GAUBA, J.
JULY 19, 2017/nk
