Delhi High Court
The National Insurance Co. Ltd vs Shankar Dass & Ors on 21 April, 2009
Author: J.R. Midha
Bench: J.R. Midha
36
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.420/1998
Date of Decision: 21st April, 2009
%
THE NATIONAL INSURANCE CO. LTD ..... Appellant
Through : Mr. Pankaj Seth, Adv.
versus
SHANKAR DASS & ORS ..... Respondents
Through : Mr. Ashok Popli, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
JUDGMENT (Oral)
1. The appellant is the insurer of the offending vehicle. The appellant was proceeded ex-parte before the learned Tribunal and an ex-parte award was passed.
2. The appellant filed an application for setting aside of the ex-parte award which was dismissed by the learned Tribunal and is under challenge in this appeal.
3. The accident dated 27th February, 1991 resulted in the death of a young boy aged 23 years earning his livelihood from the work of builder of bodies of motor vehicles. The FAO No.420/1998 Page 1 of 4 deceased was survived by his parents who filed the claim petition before the learned Tribunal. The deceased was earning Rs.2,200/- per month. However, the learned Tribunal did not accept the evidence and took the minimum wages to compute the compensation.
4. The learned Tribunal deducted 50% towards personal expenses and applied the multiplier of 9 to compute the compensation at Rs.69,228/-. Rs.2,000/- was awarded towards funeral expenses, Rs.2,500/- was awarded for loss of estate and Rs.5,000/- was awarded towards loss of love and affection. The total compensation comes to Rs.78,728/-, rounded off to Rs.79,000/-.
5. The amount awarded by the learned Tribunal is grossly inadequate. The learned Tribunal has not followed the spirit of Section 168 of the Motor Vehicles Act which provides that the Tribunal shall conduct an inquiry upon receipt of the complaint. Onus has been casted on the learned Tribunal to ascertain the facts and compute the compensation. In the present case, the claimants are the poor persons unable to prosecute their case properly. Nothing prevented the learned Tribunal to summon the employer to find the income of the deceased. However, the learned Tribunal dealt with this case as ordinary civil case. The learned Tribunal grossly erred in not conducting the inquiry in accordance with law.
6. There is no merit in the appeal but considering that the Tribunal has not followed the due process of law, I set aside FAO No.420/1998 Page 2 of 4 the impugned order and restore the petition and direct the learned Tribunal to conduct de novo inquiry into the complaint as envisaged by under Section 168 of the Motor Vehicle Act. The appellant shall also be given an opportunity to cross-examine the claimants/witnesses and also to lead evidence. The learned Tribunal may summon and examine the necessary material witnesses to ascertain the correct facts. In the interest of justice, the amount already deposited by the appellant under the award dated 26 th November, 1998 be released to the claimants to be adjusted against the final award that may be passed by the learned Tribunal as the liability of the appellant shall be more than the impugned award.
7. The claimants/respondents have stopped appearing in this matter. Considering that there is an ex-parte stay which is continuing for the last more than 10 years and the claimants did not get single penny in this case, I appoint Mr. Madhurendra Kumar, as amicus curiae in this case to assist the learned Tribunal. Copy of this order be sent to the claimants. Copy of this order be also sent to the counsel for the claimants/respondent Nos.1 and 2.
8. The parties are directed to appear before the learned Tribunal on 25th May, 2009.
9. The appeal stands disposed of.
FAO No.420/1998 Page 3 of 4
10. The LCR be returned back immediately through special messenger.
11. Copy of this order be given Dasti to learned counsel for the appellant as well as to the amicus curiae.
J.R. MIDHA, J APRIL 21, 2009 mk FAO No.420/1998 Page 4 of 4