Reliance General Insurance Co. ... vs Meena & Ors.
2017 Latest Caselaw 5783 Del

$~R-338
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Decided on: 23rd October, 2017
+      MAC APPEAL No. 456/2011

       RELIANCE GENERAL INSURANCE CO. LTD. .... Appellant

                          Through:    Mr. Pankaj Seth, Adv.

                          versus

       MEENA & ORS.                               ..... Respondent
                          Through:    Mr. Amit Kumar Pandey, Adv.
                                      for R-1,2 & 4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                      JUDGMENT (ORAL)

1. On accident claim case (Suit no. 16/2010) of the first to fourth respondents (collectively, the claimants) instituted on 29.10.2009, the motor accident claims tribunal, by its judgment dated 07.04.2011, returned a finding, inter alia, on the issue of involvement of vehicle described as TATA Truck bearing registration No. DL 1G B-5871 and negligence in its driving by the sixth respondent leading to the accident resulting in the death of Amar and on such basis granting an award of compensation in the total sum of Rs. 8,41,000/-.

2. The insurance company filed the present appeal taking exception to the procedure followed by the tribunal so as to hold the said driver responsible for the occurrence of the accident, its main

contention being that such conclusions were not founded on any evidence adduced before the tribunal, questions also being raised as to computation of compensation.

3. A learned Single Judge of this Court vide order dated 20.01.2015 set aside the findings on the issue of negligence observing thus:-

"4. It may be noted that as per the case set up before the Claims Tribunal, there was an eye witness to the incident. He was not examined. The police had simply placed on record a photocopy of the FIR and a photocopy of the site plan which too is illegible. The Respondents (claimants) ought to have discharged the initial onus of proving negligence at least on the touchstone of preponderance of probabilities. The finding on the issue of negligence cannot be sustained. The same is hence, set aside. The appeal is kept pending".

4. Pursuant to the directions in the said order dated 20.01.2015, the matter was remitted to the tribunal with direction to record the testimony of the witness, who stated that he had seen the accident in the course of occurrence and any other evidence as may be produced and for the matter to be re-submitted to this Court. The tribunal has re-submitted its record after recording evidence of two witnesses, they being Rahul Kumar (PW-2) and Yaad Ram (PW-3), it having concluded its proceedings recorded on 26.03.2015 as under:-

"Present: "Ms. Kanta Chaudhary, counsel for the petitioner.

None for driver and owner.

Ms. Manu Kushwaha, counsel for insurance company. Counsel for petitioner submits that she does not want to examine any other witness and statement of PW3 eye witness Ct. Yadram has been recorded today. He is examined, cross examined and discharged.

In view of order of Hon'ble High Court of Delhi in MAC appeal no. 456/2011 dated 20.01.2015 in paragraph no. 4 and 5 which is as under:-

"4. It may be noted that as per the case set up before the Claims Tribunal, there was an eye witness to the incident. He was not examined. The police had simply placed on record a photocopy of the FIR and a photocopy of the site plan which too is illegible. The respondents (claimants) ought to have discharged the initial onus of proving negligence at least on the touchstone of preponderance of probabilities. The findings on the issue of negligence cannot be sustained. The same is hence, set aside. The appeal is kept pending.

Trial Court record is ordered to be remitted to the Trial Court with the direction to record the testimony of the alleged eye witness as sought by the police or any other evidence which may be produced by the respondents (claimants) and remit the same of this court within 12 weeks. Let the present file be sent back to the Hon'ble High Court of Delhi immediately.

Ahlmad is directed to send the file complete in all respect".

5. The tribunal's record shows that it has not returned any finding on the issue of negligence on the basis of the evidence that has come up additionally on record during the remand proceedings. Since the finding on the issue of the negligence by the earlier order dated 07.04.2011 had been set aside, the procedure followed by the tribunal

cannot be approved of. It is essential that the tribunal returns clear findings on the issue of negligence. Given this backdrop, it is proper that the tribunal be called upon to pass a fresh judgment, not only on the issue of negligence but also on the question of compensation. It is ordered accordingly. Contentions of both sides are reserved.

6. Impugned judgment dated 07.04.2011 is, thus set aside. The claim case is remanded to the tribunal for fresh adjudication. The parties shall appear before the tribunal on 21.11.2017.

7. In terms of the order dated 23.05.2011, the insurance company had been directed to deposit the entire awarded amount with upto date interest with the Registrar General and out of such deposit 50% was allowed to be released, the balance kept in fixed deposit receipt. The balance lying in deposit with accrued interest shall be presently refunded to the Insurance Company. The amount already received by the claimants shall be liable to be adjusted against the award that may be passed by the tribunal in terms of above directions.

8. The statutory amount shall be refunded.

R.K.GAUBA, J.

OCTOBER 23, 2017/umang