Delhi High Court
Future Generali India Insurance ... vs Manik Sheikh & Ors. on 30 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 30, 2018
+ MAC.APP. 1103/2017
FUTURE GENERALI INDIA INSURANCE CO. LTD.
.....Appellant
Through: Mr. Amit Kumar Maihan,
Advocate
Versus
MANIK SHEIKH & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Advocate
+ MAC.APP. 5/2018
FUTURE GENERALI INDIA INSURANCE CO. LTD.
.....Appellant
Through: Mr. Amit Kumar Maihan,
Advocate
Versus
MONIKA SHEIKH & ANR. . .... Respondents
Through: Mr. Anshuman Bal, Advocate
+ MAC.APP. 6/2018
FUTURE GENERALI INDIA INSURANCE CO. LTD.
.....Appellant
Through: Mr. Amit Kumar Maihan,
Advocate
Versus
MANIK SHEIKH & ANR. ..... Respondents
Through: Mr. Anshuman Bal, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
MAC.APP. 5/2018
MAC.APP. 6/2018
1. The above captioned first appeal arise out of impugned Award of
7th September, 2017 vide which Motor Accident Claims Tribunal
(henceforth referred to as the "Tribunal") has awarded compensation of
`12,04,720/- with interest @ 9% p.a. to Claimants on account of death of
a Labourer- Sheikh Mansoor Ali, aged 46 years, in a vehicular accident
which took place on 30th January, 2016.
2. In this unfortunate accident in question, Monika & Manik were also
injured and the Tribunal vide common Award of 7th September, 2017, has
granted compensation of `10,000/- each with interest @ 9% p.a. to them,
which is also under challenge in the above captioned second and third
appeal.
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Brief facts of the case is that on 30.01.2016 at
about 02.30 PM, deceased Sheikh Mansoor Ali alongwith
his son Manik Sheik and minor daughter Monika Sheikh
were going from their village to Kolkata in ambulance
bearing registration No.UP-23T-3468 with the dead body
of Shabnam Sheikh who was mother of Manik Sheikh and
Monika Sheikh. Above-said ambulance was being driven
by its driver in a rash and negligent manner. When the
ambulance reached Noida Agra Expressway (73
kilometer mile stone), driver lost the balance of
ambulance due to high speed and hit against pavement
resulting in injuries to Manik Sheikh and Monika Sheikh
and fatal injuries to Sheikh Mansoor Ali."
MAC.APP. 5/2018
MAC.APP. 6/2018
4. To render the impugned Award, the Tribunal has relied upon
evidence of Claimants/ legal heirs of deceased and other evidence on
record. On the strength of evidence recorded, impugned Award has been
rendered.
5. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased -Sheikh Masnsoor Ali is as under:-
1 Loss of dependency `9,54,720/-
2 Funeral Expenses `50,000/-
3 Loss of Love & Affection `1,50,000/-
4 Loss of estate `50,000/-
Total `12,04,720/-
6. Since these three appeals arise out of one vehicular accident,
therefore, with the consent of learned counsel for the parties, these
appeals have been heard together and are being decided by this common
judgment.
7. The challenge to the impugned Award by learned counsel for
appellant-Insurer is not on quantum of compensation awarded but is on
the ground that the actual driver, who was driving the insured vehicle, has
been shielded and in his place, Rajinder Kumar, who is the owner of the
insured vehicle, has come forward to claim that he was driving the
insured vehicle. Reliance is placed upon evidence of Gagan Sharma
(R2W1), who had shifted the injured to the hospital, to submit that as per
this witness, the insured vehicle was not driven by said Rajinder Kumar.
Reliance is also placed upon evidence of Jagdish Narayan Singh (R2W2),
who has pulled out the driver from the insured vehicle after cutting it. It is
MAC.APP. 5/2018
MAC.APP. 6/2018
submitted that it is impossible that the driver of the insured vehicle would
not have sustained any injury and Rajinder Kumar had not sustained any
injury. It is submitted that MLC of Rajinder Kumar is not on record.
Attention of this Court is drawn by counsel for appellant-Insurer to
evidence of Amit Yadav (R2W4), an Officer of appellant-Insurance
Company, to submit that despite service of Notice u/O 12, Rule 8 CPC,
owner of the insured vehicle had not responded to it. It is submitted by
counsel for appellant-Insurer that criminal proceedings are still pending.
So, it is submitted on behalf of appellant-Insurer that in the instant case,
recovery rights ought to have been granted by the Tribunal to appellant-
Insurer to recover the awarded compensation from the owner and driver
of insured vehicle.
8. On the contrary, counsel for respondents-Claimants submits that
Rajinder Kumar, owner of insured vehicle, has been already charge-
sheeted in the criminal case and so, the liability to pay the awarded
compensation is of the Insurer and no case is made out to grant recovery
rights to appellant-Insurer to recover the awarded compensation from
owner and driver of the insured vehicle.
9. Upon hearing and on perusal of impugned Award, I find that from
the evidence of Amit Yadav (R2W4), it cannot be inferred that Rajinder
Kumar has substituted himself in place of driver of the insured vehicle.
Relevantly, witness-Gagan Sharma (R2W1) in his cross-examination has
admitted that he had not witnessed the accident in question and he has not
deposed that Rajinder Kumar was not driving insured vehicle when this
accident took place. Possibility cannot be ruled out that in an accident, the
MAC.APP. 5/2018
MAC.APP. 6/2018
driver of a vehicle escapes without injuries. On the basis of evidence
relied upon by appellant's counsel, it cannot be concluded that there is
any substitution of driver of insured vehicle. Pendency of criminal
proceedings cannot be a bar for the Tribunal to arrive at a finding on the
negligence aspect. In the considered opinion of this Court, on the plea of
substitution of driver of the insured vehicle, appellant cannot escape the
liability to pay the awarded compensation, which appears to be just and
reasonable. Resultantly, finding no substance in these appeals, they are
dismissed.
10. The above captioned three appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 30, 2018
r
MAC.APP. 5/2018
MAC.APP. 6/2018
