Delhi High Court
The Orental Insurance Company ... vs Nidhi Sadh & Ors. on 1 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: August 01, 2018
+ MAC.APP. 256/2013
+ MAC.APP. 257/2013
THE ORENTAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. JPN Shahi, Advocate
versus
HITESH SADH & ORS.
NIDHI SADH & ORS. .....Respondents
Through: Mr. S.N. Parashar, Advocate for
respondents-Claimants
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
(ORAL)
1. The above-captioned two appeals arise out of common impugned
Award of 12th December, 2012 vide which the Motor Accident Claims
Tribunal-02, South District, Saket Courts, New Delhi (hereinafter
referred to as 'the Tribunal') grants compensation of `6,15,000/- to
Injured-Hitesh Sadh and `2,74,000/- to Injured-Nidhi Sadh, who were
grievously injured in a vehicular accident which took place on 17th June,
2006. The Tribunal holds that appellant is the Insurer of offending vehicle
in question and even though the driving licence of driver of insured
vehicle was found to be fake, it chooses not to exonerate appellant-
Insurer while relying upon Supreme Court's decision in Kamala
Mangalal Vavayni & Ors. v. United India Insurance Co. Ltd. and Others,
(2010) 12 SCC 488. However, recovery rights have been granted to
appellant-Insurer while relying upon Supreme Court's decision in
National Insurance C. Ltd. v. Vasdev Kukreja & Ors., II (2010) ACC
148.
2. The facts and the breakup of the compensation granted by the
Tribunal, as already noticed in the impugned Award, are not required to
be adverted to, as the appellant-Insurer seeks exoneration to pay the
awarded compensation. There is no challenge to impugned Award on the
quantum aspect.
3. Attention of this Court is drawn to a statement made by Jaideep
Kumar to local police regarding nobody being at fault in happening of
this accident. So, it is submitted by appellant's counsel that appellant-
Insurer deserves to be exonerated from paying the awarded
compensation.
4. On the other hand, learned counsel for respondents-Claimants
supports the impugned Award and submits that appellant has been rightly
saddled with liability to pay the awarded compensation. The driver and
owner of insured vehicle in question have not come forward to contest
these appeals.
5. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions referred to above, I find that Supreme Court in
Manuara Khatun and Others v. Rajesh Kumar Singh and Others, (2017)
4 SCC 796 has declared that it is the duty of the Insurer to satisfy the
Award first and to observe so, principle of 'pay and recover' has been
invoked. In the facts and circumstances of this case and in light of
Supreme Court's decision in Manuara Khatun (supra), this Court, while
invoking the principle of 'pay and recover', is not inclined to exonerate
appellant-Insurer to pay the awarded compensation.
6. The Tribunal has rightly granted the recovery right to appellant
with rider to first pay the awarded compensation and then to recover from
the driver and owner of the vehicle in question. Applying the ratio of
Supreme Court's decision in Manuara Khatun (supra) to the facts of
instant case, both the appeals are hereby dismissed. Statutory deposit, if
any, be refunded to appellant-Insurer. The Registry is directed to release
the awarded compensation deposited by appellant to the respondents-
Claimants in the manner as indicated in the impugned Award.
7. With aforesaid directions, the above captioned two appeals are
disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 01, 2018
s
