Delhi High Court
Mahesh Kumar vs National Insurance Company Ltd. & ... on 18 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 18, 2018
+ MAC.APP. 826/2015 & C.Ms. 24221-22/2015
MAHESH KUMAR ..... Appellant
Through: Mr. M.C. Sharma, Advocate
Versus
NATIONAL INSURANCE COMPANY LTD. & ORS.
..... Respondents
Through: Mr. D.K. Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 31st October, 2014 grants compensation of
`11,30,000/- with interest @ 9% p.a. to respondents-claimants on account
of death of one Yogender Sahu, aged 46 years, in a vehicular accident on
3rd September, 2013.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"It is the case of the petitioners that on 03.09.2013 at
about 21.00 hours the deceased namely Yogendra Sahu @
Jogender Sahu s/o Shri Khudhai Sahu, aged about 46 years,
who was the bus driver had stood his vehicle on the side and
was coming after eating the food on foot with his
helper/conductor. During the said process when the deceased
was crossing the road as per manner and proper side of the
road and when the deceased reached Near Petrol Pump,
Sohna Road, Islampur, Gurgaon, PS Sadar Gurgaon,
Haryana all of a sudden one vehicle bearing No. DL-1Y-D-
1746 (Maruti Eco Car) came in high speed, from the side of
Sohna, which was being driven by the respondent No.1 in a
rash and negligent manner and in contravention of the rules
of traffic without blowing any horn and without giving any
indicator, and hit the deceased with very great force and due
to the forceful impact the deceased fell down on the road and
sustained fatal injuries, after that the respondent No. 1 took
the body of the deceased in his offending vehicle and threw
the deceased in the Community Center, Secotr-47, Gurgaon
and the respondent No. 1 ran away and the deceased died on
the spot. It is averred that the deceased was removed to
Government Hospital, where the post mortem was conducted
by the doctors of the concerned hospital as per the statement
of the eye-witness/conductor of the deceased‟s vehicle. It is
averred that the accident occurred due to the rash and
negligent driving of the respondent No. 1 who was driving
the offending vehicle at the time of the accident in rash and
negligent manner, and due to his act an innocent person
became the victim of the same. It is stated that in respect of
the accident FIR No. 598/13 under Sections 279/304A/201
IPC was registered at PS Sadar Gurgaon. It is averred that
Rs. 50,000/- were spent on the last rites and funeral expenses
of the deceased and the deceased died on the spot."
3. On the basis of evidence led, impugned Award has been rendered
by Motor Accident Claims Tribunal (henceforth referred to as "the
Tribunal") and the breakup of compensation awarded is as under:-
1.) Loss of dependency : `9,60,000/-
2.) Love and affection : `1,00,000/-
3.) Loss of consortium : `50,000/-
4.) Loss of estate : `10,000/-
5.) Funeral expenses : `10,000/-
_________
Total : `11,30,000/-
4. The challenge to impugned Award by learned counsel for
appellant-owner and driver of insured vehicle is on the ground that grant
of recovery rights to respondent-Insurer against appellant is wholly
unjustified, as on the day of accident, appellant was holding „Learner‟s
license for light motor vehicles (commercial)‟.
5. On the contrary, learned counsel for respondent-Insurer disputes
the aforesaid stand taken on behalf of appellant and supports the
impugned Award and submits that there is no infirmity in it and so, this
appeal deserves dismissal.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that as Insurance Policy in question stipulates that a
driver of the insured vehicle should hold an effective driving licence on
the day of accident. It also stipulates that he/she should not be
disqualified from holding or obtaining such a licence. Undisputedly,
appellant was holding a valid learner's driving licence for light motor
vehicles (commercial) i.e. Maruti Eco Taxi in question. The evidence on
record is silent on the aspect whether a person duly licensed to drive the
said vehicle was accompanying the appellant or not. In the considered
opinion of this Court, there is no conscious breach of the Insurance Policy
in question. Therefore, grant of recovery rights by the Tribunal to
respondent-Insurer is unjustified. Impugned Award is modified to the
extent that the liability to pay the awarded compensation would be of the
Insurer and not of the appellant-owner and driver of the vehicle in
question.
7. With aforesaid modification, this appeal and the applications are
disposed of.
(SUNIL GAUR)
JUDGE
JULY 18, 2018
r/v
