National Insurance Co Ltd vs Pompy Dutta & Ors
2017 Latest Caselaw 5739 Del

$~13

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Decided on : 16th October, 2017
+      MAC.APP. 796/2016
       NATIONAL INSURANCE CO LTD               ..... Appellant
                      Through: Mr.L.K.Tyagi, Adv.

                         versus

       POMPY DUTTA & ORS                             ..... Respondents
                   Through:             Mr.R.K.Bachchan, Adv. for R-1
                                        and R-2.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                            ORDER (ORAL)

1. The accident claim case MAC No. 172/2016 was instituted by the first and second respondent (claimants) under Section 166 of the Motor Vehicle Act, inter alia, against the appellant insurance company seeking compensation on account of death of Barun Datta on 22.01.2011 allegedly due to the injuries which he had suffered in a motor vehicular accident that had occurred on 06.07.2010 involving negligent driving of car bearing registration No. DL 3CM-5139, a vehicle owned by the third respondent who is described also as the driver.

2. The Tribunal by judgment dated 01.07.2016 upheld the contentions that the death had occurred due to the injuries suffered in the said accident rejecting the plea to the contrary raised by the insurance company resisting the case.

3. The appeal at hand questions the finding to above fact pointing out that the evidence shows that having suffered injuries in the accident that had taken place on 06.07.2010 the victim had remained under treatment as an indoor patient in different medical institutions but eventually was discharged and had even resumed normal life by joining duty, in the first week of October, 2010. It is pointed out that the claimants have led evidence, by examining, inter alia, Dr. Kapil PW-1, Gopal Dutt (PW-2) besides the first respondent (claimant), appearing as her own witness (PW-4) mainly relying on the documents relating to the treatment during July, 2010. There is no clarity in the evidence with regard to the circumstances in which the death occurred in January 2011, PW-4 in the course of her testimony vaguely claiming that it was due to the injuries suffered in the accident. The Tribunal has proceeded on the assumption that a person aged about 40 years could not have died due to natural causes and so the death would have occurred due to the head injuries suffered, such conclusions being based merely on surmises and conjectures rather than any concrete material. The counsel for the insurance company referred to the copy of the post-mortem examination report dated 23.01.2011 purportedly issued by a Hospital in Noida (U.P.), inter alia, stating that the cause of death could not be ascertained and that viscera had been preserved, the report whereof was awaited.

4. The counsel for the claimant, on being asked, was unable to explain as to under whose instructions the dead body was sent for post-mortem examination to the hospital in Noida in January, 2011, particularly against the backdrop of the facts that the victim had been

initially discharged from the hospital after treatment for the injuries suffered in the accident in July, 2010 and having even resumed duties. There is no clarity as to in what circumstances the death came to be reported to the authorities.

5. After some hearing, the counsel for the claimant fairly admitted that the evidence with regard to the nexus between the injuries suffered and the death is deficient. While conceding to the prayer in appeal to be allowed and the impugned judgment to be set aside, he requested that the claimants may be given further opportunity to lead additional evidence so that their claim to compensation be not curtailed.

6. For the foregoing circumstances, the impugned judgment is set aside. The claim case of the first and second respondent is revived for further inquiry in the course of which the claimants would be entitled to lead additional evidence. Needless to add that the parties that contest will also be given opportunity to lead additional evidence, if any, in rebuttal. The parties are directed to appear before the Tribunal on 16.11.2017.

7. The amount awarded by the tribunal with interest that has been deposited by the insurance company in terms of directions in the order dated 03.10.2016, along with statutory deposit shall be presently refunded.

8. The appeal is disposed of in above terms.

R.K.GAUBA, J.

OCTOBER 16, 2017 mr