Shri Ram General Ins Co Ltd vs Naina & Ors
2017 Latest Caselaw 3462 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Decided on: 20th July, 2017
+      MAC APPEAL No. 4/2016

       SHRI RAM GENERAL INS CO LTD                      ..... Appellant
                            Through:    Mr. Priyadarsi Acharya,
                                        Advocate
                            versus

       NAINA & ORS                                  ..... Respondents
                            Through:    Mr. Raghav Mendiratta,
                                        Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                        JUDGMENT (ORAL)

1. The first respondent was travelling in car make Swift bearing no. HR 72A 4045 (the car) on 11.06.2013 as a passenger, with certain other persons, half an hour after midnight when the car met with an accident, it colliding against truck bearing no. HR 38L 0287 (the truck) in the area of Silver Oak Chowk Red Light near Mehrauli. As a result of collision, she suffered injuries while another person travelling in the car, named Nasiran @ Usha, died. The two claim petitions were instituted, one (case no.530/2013) on account of injuries of Naina (first respondent), the other on account of death of Nasiran @ Usha, both in the wake of detailed accident report (DAR) submitted by the local police. Both cases were inquired into together and were decided by common judgment dated 15.10.2015. The tribunal held that the

accident had occurred due to negligence on the part of the truck driver and awarded Rs. 2,99,951/- as compensation with interest @ 9% in favour of the first respondent directing the insurance company to pay. The tribunal, however, also accepted the submission of the insurance company, based on the evidence led, that there was breach of terms and conditions of the insurance policy since the driver of the truck was not holding a valid or effective driving license. On that basis, the insurance company was granted recovery rights against the driver and owner (second and third respondents herein).

2. The insurance company is in appeal raising the contentions that there was negligence also on the part of the car driver and, therefore, the liability should have been apportioned, the award of Rs.50,000/- towards pain & suffering towards special diet & conveyance is uncalled for since there was no disability and, finally, that instead of being called upon to pay, the insurance company should have been exonerated on account of breach of terms and conditions of the policy.

3. Having heard the submissions, this Court finds the appeal is devoid of substance and must be dismissed.

4. The insurance company may have taken the defence that there was negligence on the part of the car driver. But, it did not lead any evidence to refute the testimony of the petitioner, based on her affidavit (Ex.PW-1/A) supported by relevant documentary evidence. The evidence of PW-1 clearly brought out that the accident took place squarely on account of negligent driving of the truck. The truck driver was not even called upon by any of the respondents to enter the witness box to depose facts to the contrary.

5. The evidence led by the first petitioner proved that she had suffered multiple injuries including left tension hemopnueumo hemithorax (ICD IN SITU) with multiple rib fractures with pulmonary contusion and collapse besides displacement of mediatinum laterally and diaphragm inferiorly with mild pneumomediatinum minimal pneumothrax right apcal region subcutaneous emphysema, hemoperitoneum, mild peripancreatic and perisplenic fluid, multiple spinous process fracture C6 to D6, fracture bialateral clavicle, multiple facial fracture and lacerations/abrasions. She underwent prolonged medical treatment. In these circumstances, the awards under the heads of pain & suffering and special diet & conveyance cannot be grudged.

6. The insurance company having been granted recovery rights, there is no justification made for the plea for it to be exonerated.

7. The appeal is dismissed.

8. By order dated 04.01.2016, the insurance company had been directed to deposit the entire awarded amount with interest with the Registrar General and out of such deposit 50% was allowed to be released, the balance kept in fixed deposit account. The balance shall also now be released to the claimant.

9. The statutory deposit shall be refunded.

R.K.GAUBA, J.

JULY 20, 2017 nk