Delhi High Court
National Ins. Co. Ltd. vs Ganesh Chander Jha & Ors. on 13 September, 2017
$~R-193 to 197
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th September, 2017
+ MAC APPEAL No. 236/2010
NATIONAL INS. CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
GANESH CHANDER JHA & ORS. ..... Respondents
Through: None.
+ MAC APPEAL No. 237/2010
NATIONAL INS. CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RADHA DEVI & ORS. ..... Respondents
Through: None.
+ MAC APPEAL No. 239/2010
NATIONAL INS. CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
HARI KRISHAN JHA & ORS. ..... Respondents
Through: None.
MAC Appeal No. 236/2010 & conn. Page 1 of 5
+ MAC APPEAL No. 241/2010
NATIONAL INS. CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RAJJO DEVI & ORS. ..... Respondents
Through: None.
+ MAC APPEAL No. 245/2010
NATIONAL INS. CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
MANJULA JHA & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. These five appeals arise out of common judgment dated
24.11.2009 of the motor accident claims tribunal whereby the claim
petitions of the first respondents in MAC Appeal No. 236/2010,
237/2010, 239/2010, 241/2010 and of the first to sixth respondents in
MAC Appeal No. 245/2010 were decided, awards of compensation
having been granted for the injuries suffered by the said four persons
and the last on account of death of Vishnu Kumar Jha in motor
vehicular accident that had occurred on 24.04.2004 involving an
unidentified truck on one hand and Maruti Omni car bearing
registration no. HR 51 H 1057 (the car) on the other. The car, as per
the pleadings and evidence adduced, was driven by Het Ram (a
respondent in these appeals), it being registered in the name of
Krishan Singh, owner (another respondent in these appeals) at whose
instance it was insured against third party risk with the appellant
insurance company (insurer), also in the fray of respondents in all the
claim cases before the tribunal.
2. As per the case of the claimants in the five petitions seeking
compensation, all the four injured persons and Vishnu Kant Jha (the
deceased), being members of the same family were on their way from
Badarpur to Haridwar having taken "on hire" the van. They alleged
that the driver of the van was negligent in driving and it was on this
account that it came to be involved in a collision against the truck
moving ahead. It may be added here that the claim petition on account
of death of Vishnu Kant Jha, however, was pressed only under Section
163 A, Motor Vehicles Act, 1988, the claims on account of injuries to
the four persons being on the principle of fault liability under Section
166, Motor Vehicles Act, 1988.
3. The insurance company while putting in contest by its written
statements raised preliminary objection that its liability would arise
subject to proper compliance with the provisions of the Motor
Vehicles Act, 1988 having been shown.
4. During the inquiry, the record of the tribunal reveals, insurance
company sought opportunity and was allowed to lead evidence. It
examined its assistant, Dharmender Arya (R3W1) through whom the
insurance policy (Ex.R3W1/1) and the copies of the registration
certificate (ExR3W1/2) were proved in addition to notice under Order
12 Rule 8 of the Code of Civil Procedure, 1908 (CPC), as per copy
(Ex.R3W1/3), sent to the registered owner by post (per receipts
Ex.R3W1/4 to 6), to which there was no response. R3W1 testified
that since the vehicle had been taken on hire, there had been a
commercial use of the vehicles in breach of terms and conditions of
the insurance inasmuch as the vehicle was registered and insured
meant for use as a private vehicle only.
5. The tribunal while granting the compensation in each of the five
cases wrongly assumed that the insurance company had been taken in
defence. The impugned judgment is conspicuously silent with regard
to the evidence adduced by the insurance company during the inquiry.
There is neither a reference to the defence raised nor any discussion of
the evidence adduced nor any finding returned.
6. These appeals are pressed by the insurance company only to
seek recovery rights. At the hearing, the learned counsel for the
insurance company submitted it will be fair that the matters are
remanded to the tribunal for complete adjudication, though such
remand may be restricted only for the adjudication of the recovery
rights without disturbing the compensation awarded and already paid
to the claimants in five cases.
7. Inspite of notice and having even appeared earlier neither the
driver nor the owner of the vehicle have appeared at the final hearing.
In view of the above deficiency in the impugned judgment, the appeals
are allowed. While not disturbing the determination of compensation
and directions respecting its payment to the respective claimants by
the impugned judgment, the matter restricted to the claim of the
insurance company for recovery rights is remanded to the tribunal for
proper adjudication. For such purposes, the tribunal shall take up the
proceedings on 24th October, 2017 when the parties shall be duty
bound to appear. In all fairness, before proceeding further, the tribunal
shall issue fresh notices to the owner and driver of the vehicle in
question.
8. The statutory amount shall be refunded.
R.K.GAUBA, J.
SEPTEMBER 13, 2017
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