Delhi High Court
Icici Lombard Gen. Ins. Co. Ltd vs Pinki And Ors on 4 September, 2017
$~6 & 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th September, 2017
+ MAC.APP. 359/2017
ICICI LOMBARD GEN. INS. CO. LTD ..... Appellant
Through: Mr. Garud M.V., Adv.
versus
PINKI AND ORS ..... Respondents
Through: Mr. Anshuman Bal, Adv. for R-
1 to 4.
+ MAC.APP. 371/2017
ICICI LOMBARD GEN. INS. CO. LTD ..... Appellant
Through: Mr. Garud M.V., Adv.
versus
RAKESH KUMAR AND ORS ..... Respondents
Through: Mr. Anshuman Bal, Adv. for R-
1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 23.04.2012, a motor vehicular accident occurred at about
9.30 a.m., in which a tempo bearing registration no. UP 14CT 8531
turned turtle, it resulting in injuries being suffered, amongst others, by
two persons namely Pintu and Rakesh, both of whom were travelling
in the said goods vehicle at the relevant point of time, the former
(Pintu) dying in the process. Two accident claim cases, one (MACT
No. 209/2012) on account of death of Pintu instituted by his wife and
other members of the family dependent upon him (they being first to
fourth respondents in MAC Appeal no. 359/2017) and, the other
(MACT No. 227/2012), by Rakesh Kumar (first respondent in MAC
Appeal No. 371/2017 were instituted on 31.05.2012. In each, the
driver (Sunil Kumar), the owner (Noor Ahmed) and ICICI Lombard
General Insurance Company Ltd. (insurer) of the tempo were
impleaded as party respondents, the said insurer now being the
appellant in these appeals before this Court. The tribunal clubbed the
two cases and after inquiry, by judgment dated 20.01.2017, upheld the
claim of compensation on the basis of finding that the accident had
occurred due to negligent driving of tempo by the said driver Sunil
Kumar (respondent in these appeals). It has awarded compensation in
favour of the respective claimants fastening the liability on the insurer
of the tempo to pay.
2. The appeals are pressed by the insurer on the ground that Sunil,
driver of the tempo, after the accident had addressed the local police
official in writing (Ex.PW-2/10), inter alia, stating that the victims
had boarded the vehicle on their own without seeking his prior
permission, even while the tempo was on its way with the cargo
(vegetables) that had been purchased from a local market. On the
basis of such material introduced in the evidence through witness
(R3W1) examined on behalf of the insurance company, it has been
submitted that the victims were gratuitous passengers and, therefore,
no liability can be fastened against the insurer, such use being in
breach of terms and conditions of the insurance policy.
3. The tribunal considered the above-said submission of the
insurer but rejected the same with the following observations:
"... Insurance Company has examined R3W1 who
deposed as per Ex.PW2/10, both the injured and the
deceased had climbed the vehicle without the permission
of the driver and that they were gratuitous passengers.
Therefore, the insurance company is not liable to pay any
compensation. However, Ex.PW2/10 itself shows that
respondent No.1 Sunil Kumar was carrying vegetables in
his vehicle at the time of the accident. He has further
stated that the vegetable sellers sitting in the vehicle at
the time of accident were injured. This averment by R-1,
in the complaint to the SHO Ex.PW2/10 itself shows that
the deceased persons were traveling in the offending
vehicle as owner of goods and were not gratuitous
passengers."
4. This Court finds the reasons set out by the tribunal for rejecting
the contention of the insurance company to be correct and proper. It
may be added that Sunil Kumar obviously was not telling the entire
truth when he addressed the above-mentioned letter (Ex.PW-2/10) to
the local police officer. He tried to disown responsibility for the
accident on the ground that the rear right wheel of the tempo had come
out. Noticeably, while putting in contest, the registered owner of the
vehicle (Noor Ahmed), impleaded as second respondent before the
tribunal, in his written statement, had clearly stated that the vehicle
had been purchased only fifteen days prior to the occurrence and,
therefore, there was no question of bad condition of the tyre being the
cause for the accident. Pertinent to add, the driver was not called upon
even by the insurance company to enter the witness box to elaborate
on what had been stated by him to the police. Such version of the
driver given to the police during investigation by it, without it being
tested during the inquiry, cannot be acted upon.
5. The appeals are, therefore, devoid of substance and
consequently they with the accompanying applications are dismissed.
6. By order dated 18.04.2017, the insurance company had been
directed to deposit the entire awarded amounts with interest with the
registry of this Court. The same was directed to be kept in an interest
bearing fixed deposit account without any disbursement. The amounts
deposited by the insurance company shall now be released to the
respective claimants in terms of the impugned judgment.
7. The statutory deposits shall be refunded.
R.K.GAUBA, J.
SEPTEMBER 04, 2017
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