Delhi High Court
New India Assurance Co. Ltd. vs Badlu And Another on 11 September, 2013
Author: Suresh Kait
Bench: Suresh Kait
R~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11th September, 2013
+ MAC.APP. 280/2005
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
BADLU AND ANOTHER ..... Respondents
Through: Mr. Ravinder Garia, Adv. for R1.
Mr. Rohit Minocha and Mr. D.K. Pradhan,
Advs. for R2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant appeal has been preferred against the impugned award dated 20.11.2004 whereby the ld. Tribunal has granted compensation to the tune of Rs.2,53,328/- with interest @ 7%.
2. Ld. Counsel appearing on behalf of the appellant has argued only on the issue that the respondent no. 1 / injured was travelling in Truck No. HR-38E-7082 along with other two persons. He was going towards Vyavar from Shahpura, Jaipur. The truck was being driven by its driver Sumer Singh, who also died in the said accident.
3. Ld. Counsel for the appellant submits that the Truck is a commercial vehicle and was insured with the appellant. The respondent no. 1 / injured MAC.APP. 280/2005 Page 1 of 3 was a gratuitous passenger, despite that the ld. Tribunal has not granted any recovery rights in favour of the appellant and against the respondent no. 2 / owner.
4. On the other hand, ld. Counsel appearing on behalf of respondent no. 2 / owner of the vehicle submitted that respondent no. 2 specifically stated in its written statement that respondent no. 1 / claimant was not travelling in the truck no. HR-38E-7082. He further submits that appellant could not produce any witness or material document on record to prove that the said truck was not meant for passengers and was the goods carrying vehicle. Therefore, ld. Tribunal has rightly not granted any recovery right against respondent no. 2. Moreover, respondent no. 2 has placed on record the award of MACT, Shahpura, District Jaipur, wherein the interim award for a sum of Rs.25,000/- was passed by ld. Tribunal, Sahpura in favour of Mohd. Umar, co-injured in the same accident, under Section 166/140 of Motor Vehicles Act.
5. PW1/ claimant in his cross-examination deposed that he left Delhi for Vyavar along with his Guru B.K. Reddy and his son Munna Raja. From Vyavar to Kishanganj they reached by bus. Then they talked to a truck driver. In his evidence by way of affidavit he stated that on the unfortunate day of 27.12.2001 at about 4.30 PM he was sitting in the driver's cabin of truck bearing no. HR-38E-7082 along with other two persons with driver of the truck. He was going towards Vyavar from Shahpura, Jaipur. He further stated that the said truck was being driven by its driver Sh. Sumer Singh at a very fast speed rashly and negligently and in contravention of the traffic rules.
MAC.APP. 280/2005 Page 2 of 36. In cross-examination, he specifically deposed he was not employed by the owner of the truck, but he was travelling in the said truck after paying Rs.300/- to the driver for 3 persons as fare charges.
7. I note, appellant has taken preliminary objections of claimant being gratuitous passenger in its written statement; however, there is no discussion on this issue in the impugned award.
8. Undisputedly, the case of respondent no. 1 / injured is that he was travelling in truck no. HR-38E-7082. The said truck was not a passenger carrying vehicle.
9. Therefore, keeping in view the evidence on record, I am of the considered opinion, that respondent no. 1 / injured was travelling as a gratuitous passenger.
10. Accordingly, recovery rights are given in favour of the appellant to recover the amount from respondent no. 2.
11. Accordingly, Instant appeal is allowed.
12. Statutory amount be released in favour of the appellant.
SURESH KAIT, J SEPTEMBER 11, 2013 Jg/RS MAC.APP. 280/2005 Page 3 of 3