Delhi High Court
Oriental Insurnace Co. Ltd. vs Mohd. Sahil & Ors. on 27 October, 2017
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th October, 2017
+ MAC APPEAL No. 160/2009
ORIENTAL INSURNACE CO. LTD. ..... Appellant
Through: Mr. Ravi Sabharwal, Adv.
versus
MOHD. SAHIL & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (claimant) was amongst the 25-30 persons
who were travelling on board vehicle described as Swaraj Mazada
bearing registration no. HR 46 F 7542, admittedly registered in the
name of third respondent (the registered owner), it being driven at the
relevant point of time by the second respondent (the driver) and
insured against third party risk with appellant insurance company
(insurer) on 02.10.2006, it having been deployed for purposes of
ceremonies connected with Durga Visarjan on account of negligent
driving of the said vehicle, it over-turned near Inter-State Bus
Terminus, Delhi, resulting in injuries being suffered by several
persons including the claimant. On accident claim case (petition no.
404/2008) instituted on 22.02.2007, the tribunal held inquiry and, by
judgment dated 13.01.2009 it was held that the accident had occurred
due to negligent driving of the said vehicle. It awarded compensation
in the sum of Rs. 4,31,280/- with interest in favour of the claimant.
While resisting the said claim case, the insurer had raised the
plea that it could not be called upon to pay the compensation as the
vehicle in question is a goods carriage vehicle, not meant for carrying
passengers, and that since the claimant was a gratuitous passenger, its
liability to indemnify the registered owner would not arise. Evidence
on this subject was adduced including by the registered owner who
appeared as his own witness (R2W1). The tribunal accepted the plea
of the insurance company but then called upon it to pay the
compensation to the claimant granting it, at the same time, recovery
rights against the registered owner (third respondent).
2. By the appeal at hand, the insurance company argues that
instead of being called upon to pay the compensation and getting it
recovered, it should have been fully exonerated.
3. It is noted that in terms of the directions in the order dated 24 th
March, 2009, the appellant was directed to deposit the entire awarded
amount with interest with the tribunal as a pre-condition to stay
against execution. By order dated 27.08.2009, Rs. 25,000/- was
released from out of such deposited amount to the claimant subject to
outcome of the appeal. By order dated 13.09.2013, the said order was
modified and 50% of the awarded amount was permitted to be
released to the claimant, the balance kept in fixed deposit receipt. In
the given facts and circumstances, it would be proper that the
insurance company follows the dispensation ordered by the tribunal
and recover the amount from the registered owner. It has to be borne
in mind that the case concerns a benevolent legislation where third
party interests are involved. Since the interest of the insurance
company is duly protected by the grant of recovery rights, this court
would rather not interfere at this stage.
4. The appeal is disposed of with the observations that the
insurance company may recover the amount in entirety from the third
respondent (the registered owner). The remainder lying in deposit
shall be released to the claimant.
5. The statutory amount shall be refunded.
R.K.GAUBA, J.
OCTOBER 27, 2017
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