Delhi High Court
National Insurance Co Ltd vs Smt. Sunila Gupta And Ors. on 1 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: March 01, 2017
+ MAC.APP. 4/2009
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Manoj R. Sinha, Advocate.
Versus
SMT. SUNILA GUPTA & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. In this Appeal, Appellant/Insurer seeks to wriggle out of the
liability to pay the awarded compensation. Vide impugned Award of 27th
September, 2008, compensation of `12 lacs with interest at the rate of 9%
per annum has been awarded to respondent-claimant on account of death
of Dr. C.B. Gupta in a road accident on 17th January, 1994. Vide
subsequent order of 31st October, 2008, the arithmetical mistake in
calculation of awarded amount stands corrected by learned Motor
Accident Claims Tribunal (hereinafter referred to as the 'Tribunal') and
the rectified compensation granted is `11,02,000/- with the same rate of
interest.
2. The facts of this case are already noted in the impugned Award and
so needs no reproduction, as challenge to the impugned award is not on
quantum of compensation granted but is on the liability aspect. Suffice to
note the accident took place on 7th January, 1994 and driving license of
driver who was driving the vehicle in question, had lapsed on 5th
September, 1993 and it was got renewed after about four months of the
accident i.e. on 19th January, 1994 i.e. two days after the accident in
question. Learned Tribunal has relied upon Supreme Court decision in
Ishwar Chandra Vs. Oriental Insurance Company & ors. 2007 ACJ 1067
to grant recovery rights to appellant against owner and driver of vehicle
in question.
3. As per order of 21st April, 2010, service is complete. Respondent
no. 4 and 5, who are the driver and owner of vehicle in question have
been served by publication but none has appeared on their behalf.
However, counsel for respondent-claimant had initially appeared. While
entertaining this appeal, appellant was called upon to deposit the entire
awarded amount. Vide order of 22nd July, 2009, it was directed that the
entire deposited amount with interest be released to respondent-claimant.
Contesting respondents No.4 and 5, who are the owner and driver of
vehicle in question are unrepresented.
4. With assistance of learned counsel for appellant, impugned Award,
evidence on record and the Three Judge Bench decision of Supreme
Court in Malla Prakasrao Vs. Malla Janaki & ors. (2004) 3 SCC 343 has
been perused. The precise submission advanced by learned counsel for
appellant is that in view of Supreme Court's decision of Three Judge
Bench in Malla Prakasrao (supra) holding that where the driving license
was not valid, there is no liability of the Insurer to pay the awarded
compensation. It is submitted that learned Tribunal has erred to rely upon
the decision of Two Judge Bench and earlier decision of Three Judge
Bench would prevail and so, appellant deserves to be absolved from the
liability to pay the awarded compensation.
5. Supreme Court in Three Judge Bench decision in Sohan Lal Passi
v. P. Sesh Reddy, (1996) 5 SCC 21 has already reiterated the settled legal
position on the liability aspect which is as under:-
" While interpreting the contract of insurance, the tribunals
and courts have to be conscious of the fact that right to claim
compensation by heirs and legal representatives of the victims
of the accident is not defeated on technical grounds. Unless it
is established on the materials on record that it was the
insured who had wilfully violated the condition of the policy by
allowing a person not duly licensed to drive the vehicle when
the accident took place, the insurer shall be deemed to be a
judgment-debtor in respect of the liability in view of sub-
section (1) of Section 96 of the Act. It need not be pointed out
that the whole concept of getting the vehicle insured by an
insurance company is to provide an easy mode of getting
compensation by the claimants, otherwise in normal course
they had to pursue their claim against the owner from one
forum to the other and ultimately to execute the order of the
Accident Claims Tribunal for realisation of such amount by
sale of properties of the owner of the vehicle. The procedure
and result of the execution of the decree is well known."
6. Pertinently, Supreme Court in a later Three Judge Bench decision in
Malla Prakasrao (supra), has not considered its earlier Three Judge
Bench decision in Sohan Lal (supra). In case of conflict between two
decisions by Bench of same strength, Supreme Court in Union of India
Vs. S.K. Kapoor (2011) 4 SCC 589 has authoritatively reiterated that
decision of earlier Bench of the same strength would prevail. The dictum
of Supreme Court in S.K. Kapoor (Supra) is that if a subsequent
coordinate Bench of equal strength wants to take a different view, it can
only refer the matter to a larger Bench, otherwise the prior decision of a
coordinate Bench is binding on the subsequent Bench of equal strength.
7. As already noted above, later Three Judge Bench decision of
Supreme Court in Malla Prakasrao (supra) has not considered the earlier
Three Judge Bench decision in Sohan lal (supra),so earlier decision of
Sohan Lal (supra) shall prevail. Applying the dictum of Three Judge
Bench in Sohan lal (supra) to the facts of the instant case, it is held that
appellant-Insurer cannot be absolved of its liability to pay the awarded
compensation (which has been purportedly paid) and learned Tribunal
has rightly granted recovery rights to appellant.
8. In view of the aforesaid, finding no substance in this, it is
dismissed. Statutory deposit, if any, be refunded to appellant as per rules.
(SUNIL GAUR)
JUDGE
MARCH 01, 2017
ac
