Delhi High Court
National Insurance Co Ltd vs Alagu @ Halku & Ors on 15 November, 2017
$~15
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th November, 2017
+ MAC.APP. 997/2017 & CM No.41230/2017(for ex parte stay)
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Ms. Shuchi Singh, Adv.
versus
ALAGU @ HALKU & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By judgment dated 29.07.2017, the motor accident claims
tribunal decided two claim cases, one (petition no.76308/2016)
instituted by the first respondent (the claimant) Alagu @ Halku and
the other (petition no. 77240/2016) by Ram Babu, both having
arisen out of the same set of facts, it having been alleged that on
24.10.2009, a motor vehicular accident had taken place at 02:30 hrs
on the main road in front of Gupta Farm House, wherein TATA
tempo bearing registration number DL-1LD-4194 (the tempo) had
collided against container truck bearing registration no. RJ-11-GA-
1487 (container truck). The claimant Alagu @ Halku was
admittedly travelling in the tempo as a helper, it being driven by
the other claimant Ram Babu. The truck, on the other hand, was
proved at the inquiry to have been driven by Shokat Ali (the second
respondent), it being registered in the name of Balvinder Kaur (the
third respondent, owner) at whose instance it had been insured
against third party risk for the period in question with the appellant
(the insurer). The case of the two claimants before the tribunal was
that the accident had occurred on account of negligence on the part
of the truck driver. Evidence was adduced in the course of which
the claimants were examined, Ram Babu as PW1 and Alagu @
Halku as PW2. It is clear from the record that the truck driver was
not examined by any of the contesting parties including the
appellants. The contest was primarily on the ground that there was
no negligence on the part of the truck driver, the accident having
occurred solely on account of rash driving by the tempo driver.
The tribunal rejected the plea inter alia observing that no evidence
has been adduced to affirm the fact that the driver of the truck was
not driving the offending vehicle at the relevant period of time.
2. By the appeal at hand, the insurance company questions the
impugned award passed in favour of the first respondent only on
the ground that this was a case of contributory negligence on which
account the liability should have been apportioned.
3. There was no effort made at the stage of inquiry before the
tribunal to implead the tempo driver or anyone connected with the
tempo as party respondents. Even if the plea of the contributory
negligence were to be accepted, it would only mean in the case of
first respondent to be a case of composite negligence. The choice
of the claimant to proceed against the truck driver to seek
compensation cannot be questioned.
4. The appeal and the application filed petition therewith are
dismissed in limine.
R.K.GAUBA, J.
NOVEMBER 15, 2017
umang
