Delhi High Court
Cholamandalam Ms General ... vs Master Tehseem @ Ahsen & Ors on 2 November, 2017
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 2nd November, 2017
+ MAC.APP. 1021/2016 & CM No. 44782/16
CHOLAMANDALAM MS GENERAL INSURANCE
COMPANY LTD ..... Appellant
Through: Mr. Pankaj Gupta along with Ms.
Suman Bagga, Advs.
versus
MASTER TEHSEEM @ AHSEN & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent had instituted accident claim case
(MACA.No. 223/2013) on 09.09.2013 seeking compensation on the
grounds that while travelling in jeep bearing registration no. HR-39B-
3692 (in Delhi) on 08.08.2013, it being driven by the second
respondent in a negligent manner, he had suffered injuries since the
said driver had lost control over the vehicle and hit the side wall of the
flyover. The jeep is shown by the evidence on record to have been
registered in the name of the third respondent and insured against third
party risk for the period in question with the appellant (insurer). The
said driver, owner and the insurer were impleaded as party
respondents before the tribunal. The driver and owner, by their joint
written statement, resisted the claim denying that any such accident
had occurred. The insurer by its written statement took the defence
that the claimant was an unauthorized gratuitous passenger. During
the course of inquiry, however, the insurer also took the plea that it
could not be called upon to indemnify since the jeep was registered as
a private car, it having the capacity of ten persons including the driver,
while, the evidence would show that, it was used for commercial
purposes carrying 15-16 passengers beyond the authorized capacity.
2. The tribunal, by judgment dated 12.08.2016, accepted the claim
of the first respondent about accident having occurred due to
negligent driving by the second respondent (the driver), it having
resulted in injuries being suffered by him. The tribunal awarded
compensation in the total sum of Rs.21,85,175/- directed the insurer to
pay the compensation with interest at the rate of 12% per annum. The
plea of the insurer about breach of terms and conditions of the
insurance policy, however, was rejected primarily on the ground that
the insurer had not led any evidence with regard to the registration of
the vehicle as a private vehicle.
3. The insurer has come up with the appeal questioning the levy of
interest at 12% per annum and also seeking recovery rights to be
granted against the owner of the vehicle (the third respondent).
4. On 23.08.2017, this Court heard the appeal and passed the
following order as under:-
"The learned counsel for the insurance company
submits that insofar as the impugned judgment
granting compensation in favour of first respondent is
concerned, the only grievance is in respect of the levy
of interest @ 12 % per annum, it being excessive. The
learned counsel for the claimant (first respondent)
fairly concedes that no special reasons have been set
out by the tribunal in the impugned judgment to levy
such rate of interest.
Following the consistent view taken by this court in
[see Oriental Insurance Co Ltd v. Sangeeta Devi &
Ors., MAC.APP. 165/2011, decided on 22.02.2016],
the rate of interest is reduced to 9% per annum. The
award to the extent it granted compensation in favour
of first respondent stands modified accordingly.
The insurance company has deposited the
awarded amount with interest @ 9% per annum in
terms of order dated 02.12.2016. Rs. 3 lakhs was
released to the first respondent from such deposit by
order dated 01.05.2017. The balance shall now be
released to the first respondent (claimant) in terms of
the impugned judgment.
The appeal, thus, is to be considered further
restricted to the claim of the insurance company for
recovery rights against second and third respondents,
this on the grounds that the evidence, particularly of
PW-2 (claimant), shows that the vehicle in question
was being used for commercial purposes, even the
claimant having deposed having taken it on hire
against charges paid, the vehicle carrying 15-16
passengers, in breach of the terms of the insurance
policy which was issued in respect of a vehicle for use
as a private car, the maximum capacity being of 10
persons including driver.
The third respondent inspite of service has not
appeared. The second respondent is present through
counsel who seeks adjournment on the ground he
needs to seek instructions.
Reply, if required, may be filed within four
weeks.
Be listed for hearing on 2nd November, 2017".
5. When the matter is taken up for hearing today, there is no
appearance on behalf of the second or third respondents. No reply has
been filed by the said respondents inspite of the opportunity granted.
6. The submission of the learned counsel for the insurer is correct
to the effect that the liability of the insurer is primarily governed by
the contract of insurance policy, which was proved during the inquiry
by Jitender Dabhai, Assistant Manager (R3W1), deposing on the
strength of his affidavit (Ex-R3W1/A). The said witness proved the
certificate of insurance (R3W1/1) which clearly shows that the third
respondent (the registered owner of the vehicle) had taken up the third
party risk insurance cover declaring the vehicle to be a private vehicle
with a seating capacity of ten persons. The evidence of PW2, in
contrast, has brought out vividly that the vehicle was being used for
commercial purposes, the claimant (PW2) also having travelled in it
after paying hire charges. Even the maximum capacity of passengers
was exceeded, the evidence showing the vehicle to be carrying 15-16
persons at the time of mishap.
7. Clearly, the above are breaches of terms and conditions of the
insurance policy. The plea of the insurance company for recovery
rights against the second and third respondent is, therefore, granted.
For enforcing such rights, the insurance company will have the liberty
to take out execution proceedings before the tribunal.
8. The statutory amount shall be refunded to the insurance
company.
9. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 2, 2017
umang
