Delhi High Court
Oriental Insurance Co.Ltd. vs Urmila Devi & Ors. on 22 April, 2009
Author: J.R. Midha
Bench: J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22nd April, 2009
%
+ MAC.APP. No.306/2006, CM Nos.5268/2006,
13392/2006, 14104/2006, 6195/2007 and
5564/2009
ORIENTAL INSURANCE CO.LTD. ..... Appellant
Through : Mr. L.K. Tyagi, Adv.
versus
URMILA DEVI & ORS. ..... Respondents
Through : Mr. S. D. Wadhwa, Adv.
+ MAC.APP. 309/2006, CM Nos.5279/2006,
13396/2006, 14105/2006, 5642/2009 and Cross
objections No..................
ORIENTAL INSURANCE CO.LTD. ..... Appellant
Through : Mr. L.K. Tyagi, Adv.
versus
URMILA DEVI & ORS. ..... Respondents
Through : Mr. S. D. Wadhwa, Adv.
+ MAC.APP. 382-86/2006, CM Nos.13959/2009 and
5563/2009
URMILA DEVI & ORS. ..... Appellants
Through : Mr. S. D. Wadhwa, Adv.
versus
ARUN KUMAR YADAV & ORS. ..... Respondents
Through : Mr. L.K. Tyagi, Adv.
for R - 3.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may No
be allowed to see the Judgment?
2. To be referred to the Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
MAC .APP.Nos.306/2006, 309/2006 and 382-86/2006 Page 1 of 5
JUDGMENT (Oral)
1. The appellant in MAC.APP.Nos.306/2006 and 309/2006 has challenged the common award of the learned Tribunal whereby compensation of Rs.10,25,000/- has been awarded in respect of the death of Ram Gopal Shah and the award of Rs.1,73,000/- in respect of the injuries to Urmila Devi.
2. The accident dated 1st August, 2001 between Matiz car bearing No.UP-32AA-6605 and commander jeep bearing No.UP-60B-6442 resulted in the death of Ram Gopal Shah and injuries to his widow, Urmila Devi who was travelling in the car.
3. Ram Gupta Shah was survived by his widow and three sons and a married daughter who filed the claim petition before the learned Tribunal. Urmila Devi filed the second petition in respect of the injuries suffered by her. Both these petitions were filed against the driver, insurer and owner of the jeep. The appellant raised the defence in both petitions that the accident occurred due to the rash and negligent driving of the car and, therefore, the appellant/insurance company is not liable to pay any compensation.
4. The learned Tribunal held the driver of the jeep to be rash and negligent and passed the award against the appellant who is the insurer of the jeep in question.
5. The appellant has filed this appeal on various grounds inter-alia that the driver of the car was negligent. The MAC .APP.Nos.306/2006, 309/2006 and 382-86/2006 Page 2 of 5 appellant has referred to and relied upon the statement of the driver of the jeep who appeared in the witness box and deposed that the driver of the car was negligent. No FIR was registered in this case. Learned counsel for the claimants/respondents refer to and rely upon the statement of the driver of the car who also appeared in the witness box and deposed that the driver of the jeep was negligent. However, the perusal of the lower Court record reveals that driver of the car was not cross-examined and, therefore, his statement is not evidence in the eyes of law.
6. The claimants/respondents in both the cases are claiming enhancement of the compensation. MAC.APP. No.382-86/2006 has been filed claiming enhancement in respect of the death of Ram Gopal Shah. With respect to the injury case, cross-objections have been filed in MAC.APP.No.309/2006.
7. The claimants/respondents have filed CM No.5564/2009 for remanding back the case to the learned Trial Court for cross-examination of the driver of the car. The claimants/respondents have filed another application bearing CM No.5563/2009 for impleading the driver, owner and insurance company of the car in question.
8. Learned counsel for the appellant/insurance company does not oppose both these applications which are allowed.
9. With the consent of the parties, both impugned awards are set aside and the petitions are remanded back to the MAC .APP.Nos.306/2006, 309/2006 and 382-86/2006 Page 3 of 5 learned Tribunal for de novo trial after impleading the driver, owner and the insurance company of the car in question. The appellant shall be given opportunity to cross-examine the driver of the car who appeared before the learned Tribunal as a witness but could not be cross-examined. The parties shall also have the liberty of leading further evidence in support of their case. After recording of the evidence of both the parties as well as newly added parties, the learned Tribunal shall decide the claim petitions afresh. The learned Tribunal shall also consider and adjudicate the grounds raised by the appellant for denying the liability as well as by the claimants/respondents for enhancement of the compensation.
10. The appellant has deposited the entire award amount with the Registrar General of this Court in pursuance to the interim order and 40% of the award amount has been released to the claimants/respondents in MAC.APP.No.306/2006 and Rs.1 lakh has been released to the claimants/respondents in MAC.APP.No.309/2006. The remaining amount is lying deposited with the Registrar General of this Court. It is agreed between the parties that claimants/respondents shall retain the amount already released to them subject to the final adjustment against the final order passed by the learned Tribunal and the remaining amount along with interest thereon lying deposited with the Registrar General of this Court be returned back to the MAC .APP.Nos.306/2006, 309/2006 and 382-86/2006 Page 4 of 5 appellant in MAC.APP.Nos.306/2006 and 309/2006.
11. Ordered accordingly. The claimants/respondents shall retain the amount received by them in terms of the interim order passed by this Court. The Registrar General is directed to refund the remaining amount lying deposited in MAC.APP.Nos.306/2006 and 309/2006 along with interest accrued and the statutory amount of Rs.25,000/- back to the appellant in both the cases.
12. The parties are directed to appear before the learned Tribunal on 13th May, 2009.
13. The learned Tribunal shall take the amended memo of parties on record and issue notice to the newly impleaded parties in terms of the above order.
14. Noting that the case relates to the accident dated 1 st August, 2001, the learned Tribunal is directed to dispose of these petitions within a period of six months.
15. All pending applications in these cases stand disposed of. All interim orders stand vacated.
16. Copy of this order be given 'Dasti' to learned counsel for both the parties under signatures of Court Master.
J.R. MIDHA, J APRIL 22, 2009 mk MAC .APP.Nos.306/2006, 309/2006 and 382-86/2006 Page 5 of 5