Delhi High Court
Surinder Pal vs Nic & Ors. on 25 July, 2017
$~R-97
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th July, 2017
+ MAC APPEAL No.455/2009
SURINDER PAL ..... Appellant
Through: None.
versus
NIC & ORS. ..... Respondents
Through: Mr. Pradeep Gaur & Mr. Amit
Gaur, Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Chanda, aged 10 years, was moving on foot with her father
Mangna (third respondent) on 7.10.2006 at about 4.00 p.m. in the area
of Chaudhary Hira Singh Park, Azadpur, and when she was near a
stationary tempo bearing registration no. HR 06 GA 0343, admittedly
of the appellant, another tempo bearing no. UP 15 9987 driven by the
second respondent herein came, hitting against the former tempo,
which, in turn, hit her, resulting in injuries causing her death. The
parents of Chanda, third and fourth respondents (claimants), instituted
accident claim case (petition no. 1203/2006) on 03.11.2006 initially
invoking Section 166 of Motor Vehicles Act, 1988 to seek
compensation impleading, besides the driver-cum-owner of the latter
vehicle, the appellant and insurer of his vehicle, it being the first
respondent herein. During the proceedings, on the request of the
claimants, the petition, was converted into one based on structured
formula on principle of no-fault liability under Section 163-A of
Motor Vehicles Act, 1988.
2. The tribunal, after inquiry, returned finding affirming the case
that the death had occurred in the accident involving use of both the
vehicles. It awarded compensation in the sum of Rs. 2,50,000/- , but
directed the insurer of the vehicle of the appellant to pay. The insurer
had taken the plea of breach of terms and conditions of the insurance
policy on the ground that the driver did not hold a valid or effective
license on the date of the accident and that there was another breach of
terms and conditions of the policy since there was no valid permit for
the Union Territory of Delhi. On this ground, the defence was
accepted and the insurer (first respondent) was granted recovery rights
against the appellant.
3. The appeal was filed in September, 2009. The appellant assails
the view taken by the tribunal in the impugned judgment. The second
respondent, though served, has failed to appear to put in any contest.
The appeal was put in the list of 'regulars' as per order dated
15.04.2010. When it is taken up for hearing no one has appeared for
the appellant. Be that as it may, since the appeal is one of the oldest
on the board of this Court, having heard the learned counsel for the
insurance company and, having gone through the tribunal's record, it
is found that it was improper, unfair and unjust to fasten the entire
liability on the appellant in an accident which had involved two
vehicles, particularly because the vehicle of the appellant was
stationary, it having been hit by the vehicle of the second respondent.
4. The contentions of the appellant with regard to negligence
cannot be given any credence since such issues would be
inconsequential in a claim case arising out of 163-A of Motor
Vehicles Act, 1988. The conclusion of the tribunal about breach of
terms and conditions of the insurance policy on account of there being
no valid driving licence on the relevant date, however, is debatable in
view of the ruling in Supreme Court in National Insurance Company
V. Swaran Singh (2004) 3 SCC 297. The evidence clearly shows that
the appellant had a driving licence which was valid till 10.09.2006. It
was renewed on 28.10.2006 after the accident had occurred on
07.10.2006. It cannot be said, in these circumstances, that the
appellant was disqualified from holding a driving licence or that the
accident had occurred on account of he not being capable of driving.
5. But, the fact remains that the vehicle had entered Delhi without
a valid permit. In these circumstances, the breach of terms and
conditions of the insurance policy was duly proved and, therefore, the
right to recovery was correctly granted.
6. This Court is of the opinion that there was no reason why the
second respondent should have been let off without any liability being
fastened on him. After all, it was his vehicle which was on the move.
It was his vehicle which had hit the vehicle of the appellant making it
move forward crushing the child to death. In these circumstances, use
and involvement of the vehicle of the second respondent had also been
duly proved and consequently the liability should have been equally
apportioned amongst the appellant and the second respondent.
7. For the foregoing reasons, the impugned judgment is partially
modified. The first respondent is given liberty to recover the amount
paid as compensation, in equal proportions from the appellant and
second respondent with corresponding interest. For such purposes, the
insurance company may take out appropriate proceedings before the
tribunal.
8. With these observations, the appeal is disposed of.
R.K.GAUBA, J.
JULY 25,2017
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