Delhi High Court
Oriental Insurance Co Ltd vs Baij Nath Prasad & Ors on 30 October, 2017
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th October, 2017
+ MAC.APP. 763/2015 & CM No. 22620/2015
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. Pradeep Gaur, Adv.
versus
BAIJ NATH PRASAD & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By judgment dated 04.08.2015 in the accident claim case
(MAC-P No.167/2009) instituted on 06.07.2009 by the first to fourth
respondents (collectively, the claimants), the motor accident claims
tribunal returned a finding that Dharamshila, aged 33 years, had
suffered injuries on 11.06.1997 due to negligence on the part of the
fifth respondent in driving a bus bearing registration no. DL 1P 3837
(the bus), making her fall down and, on that basis, held the said fifth
respondent (driver) and the sixth respondent (registered owner of the
bus), jointly and severally liable to pay compensation. It awarded
total compensation in the sum of Rs. 8,52,040/- and fastened the
liability to initially pay, on the appellant insurance company, it
admittedly having issued an insurance policy against third party risk in
respect of the bus for the period in question, though also granting it
recovery rights against the fifth and sixth respondents.
2. The appeal at hand was filed by the insurance company
questioning not only the computation of calculation but also the
finding on the issue of negligence submitting that the same was
unfounded. The claimants inspite of service have failed to appear to
assist.
3. Having heard the submissions of the appellant and having
perused the tribunal's record, it is found that the contention of the
insurance company against the finding on the issue of negligence is
correct. The tribunal has gone by the testimony of Baij Nath Prasad
(PW-1) who was the sole witness and was examined on behalf of the
claimants on the strength of his affidavit (Ex.PW-1/A). Baij Nath
Prasad is the husband of the deceased and during cross-examination
had admitted that he was not present at the time when the accident
took place. It appears the tribunal has gone by the record of the
corresponding criminal case. Perusal of the said record brings out no
such material, prima facie, on which any clear conclusions could be
drawn without assistance of the investigating police officer.
4. In MAC Appeal No. 165/2013 New India Assurance Co. Ltd.vs.
Devki & Ors. the decision of the Supreme Court in Oriental Insurance
Company Ltd. v. Meena Variyal 2007 (5) SCC 428 was noted as
under: -
"On a careful understanding of the decision in Gujarat State
Road Transport Corporation (supra) we cannot understand it
as having held that in all claims under the Act proof of
negligence as the basis of a claim is jettisoned by the scheme of
the Act. In the context of Sections 166 and 163A of the Act of
1988, we are persuaded to think that the so called obiter
observations in Minu B. Mehta's case (supra) govern a claim
under Section 166 of the Act and they are inapplicable only
when a claim is made under Section 163A of the Act. Obviously,
it is for the claimant to choose under which provision he should
approach the Tribunal and if he chooses to approach the
Tribunal under Section 166 of the Act, we cannot see why the
principle stated in Minu B. Mehta's case should not apply to
him. We are, therefore, not in a position to accept the argument
of learned counsel for the respondents that the observations in
Minu B. Mehta's case deserve to be ignored."
5. This Court in Devki & Ors. (supra) observed thus:-
"8. In the facts and circumstances, this Court finds it difficult to
follow the view taken in Pushpa Rana (supra). Since the law
declared by the Supreme Court in Meena Variyal (supra) is
binding, there is no escape from the conclusion that it is the
burden of the claimants in a petition under section 166 of MV
Act to prove negligence. Should they find it difficult to prove
evidence with regard to negligence, the option to have resort to
no- fault liability on the structured formula under Section 163A
of MV Act is always available to seek just compensation. The
case of Bimla Devi (supra) cannot be an illustration to hold
otherwise inasmuch as it is clear from the narration of facts
noted therein that an eye witness was available and the
conclusion on facts had been reached on the basis of his
testimony".
6. In the above facts and circumstances, the approach of the
tribunal cannot be approved of. The impugned judgment is set aside.
In order to ensure, however, that the claimants are not denied just
compensation, it is deemed proper that they are called upon and given
opportunity to lead necessary evidence on the issue of negligence and,
for such purposes, the claim case is remitted to the tribunal for further
inquiry.
7. The parties are directed to appear before the tribunal on 30th
November, 2017. Since the claimants have not appeared at the final
hearing on the appeal, it is directed that in the event of default in their
appearance before the tribunal on the appointed date, it shall issue
court notices to secure their presence before proceeding further.
8. All contentions on other issues are reserved. It is noted that by
order dated 03.11.2015, the insurance company had been directed to
deposit the entire awarded amount with the Registrar General and 50%
of the said amount was permitted to be released. If any such amount
has been received by the claimants, the same shall be liable to be
adjusted or regulated in terms of the fresh adjudication at the end of
the further inquiry, as ordered above. The amount held back in
deposit shall presently be refunded to the insurance company
alongwith the statutory deposit.
9. The appeal is disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 30, 2017
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