Delhi High Court
National Insurance Company Ltd. vs Deepak & Ors. on 8 November, 2017
$~R-435
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 08th November, 2017
+ MAC.APP. 1165/2011 and CM 23415/2011 and 5670/2016
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Galib Kabir, Advocate
versus
DEEPAK & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Adv. for R-4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The motor vehicle described as Tata Sumo bearing registration
no.DL-2CH-3419 (offending vehicle) was admittedly insured against
third party risk with the appellant / insurance company (insurer) for
the period in question, the said vehicle said to have been driven by the
third respondent (Sandeep) having come to be involved in an accident
on 28.01.2008 resulting in the death of Gaurav, a child, aged 11 years.
The first and second respondents (collectively, the claimants) being
the parents of the deceased child instituted accident claim case
(petition no.175/2010) on 01.03.2008 seeking compensation on the
allegations that the accident had occurred due to negligent driving of
the said vehicle by the third respondent. Gopi Chand, fourth
respondent in this appeal, son of Sunder Ram who has since died and
substituted by his legal representatives (fourth to sixth respondents)
was impleaded in the claim case as second respondent before the
tribunal on the averments that he was the owner of the offending
vehicle.
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 27.09.2011, returned a finding that the death
had occurred in the accident due to the negligent driving of the said
vehicle by the third respondent thereby holding him and the owner of
the vehicle jointly and severally liable. The insurer had raised the plea
that it could not be called upon to indemnify since the vehicle was
meant to be used as a private car but had been given on hire, such use
not being covered by the insurance policy. This plea was accepted by
the tribunal. It, however, called upon the insurer to pay the
compensation and, thereafter, recover it from the driver or the
registered owner of the vehicle.
3. The present appeal was filed by the insurer contending that in
the given facts and circumstances, the liability could not have been
fastened upon it and, rather than being called upon to pay and then
recover, it should have been exonerated. Reliance is placed on
Oriental Insurance Company Ltd. Vs. Sudhakaran K.V. and Ors.,
(2008) 7 SCC 428.
4. In the considered view of this court, the approach of the tribunal
in the given facts and circumstances was correct. The third party
interest cannot be allowed to be defeated. The interest of the insurer
having been protected, its plea for total exoneration cannot be
accepted. The appeal is dismissed.
5. An application (CM 5670/2016) was moved during the
pendency of this appeal by the legal representatives of the deceased
fourth respondent contending that their father was wrongly impleaded
in the inquiry before the tribunal as his parentage is different. It is
noted that Gopi Chand, second respondent before the tribunal inspite
of being served, did not appear before the tribunal. In these
circumstances, the plea now raised by his legal representatives cannot
be accepted. The application is dismissed.
6. By order dated 22.12.2011, the insurance company had been
directed to deposit the entire awarded amount with up-to-date interest
with the Registrar General. By subsequent order dated 13.04.2015,
fifty percent (50%) was permitted to be released to the claimants. The
balance shall now be released to the claimants in terms of the
impugned judgment.
7. The statutory amount is forfeited as costs in favour of Delhi
High Court Legal Services Committee.
8. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
NOVEMBER 08, 2017
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