National Insurance Co.Ltd v. Surat Singh and Others

V.B.GUPTA, J. Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.247 of 2004 % Judgment reserved on: 9th July, 2008 Judgment delivered on:24th July, 2008 National Insurance Co. Ltd. Regional Office-II, 2-E/9, Jandewala Extension Delhi-110055 ….Appellant Through: Mr.L.K.Tyagi, Adv. Versus 1.Surat Singh, S/o Sh.Bagari Ram, 2.Smt.Tara Wati, W/o Sh.Surat Singh Both residents of RZ-422/5A, Gali No.24, Sadh Nagar, Palam Colony, New Dlehi-110045. 3. Ramesh Chand, S/o Prakash Chand, 149, Transport Centre, Punjabi Bagh, New Delhi. Aslo at: Gwalior Roadways, SN-32B, Gwalior. (M.P.) 4. M/s Chadha Motors, 1724, Naya Bazar, Delhi. …Respondents. Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. This appeal under Section 173 of Motor Vehicles Act, 1988 (for short as "Act") has been filed by the Insurance Company against the impugned award dated 21st April, 2004 passed by Sh. J.R.Aryan, Judge, MACT, Delhi. 2. The relevant facts for the disposal of the present appeal are that Devender Kumar, deceased aged 18 years died in an accident on 1.2.95. On the said date, there was some cultural program for the students at Ram Lal Anand College situated in the vicinity of Dhaula Kuan, Delhi. After the programme was over, the students including the deceased came out of the college. Meanwhile, the offending tempo no. DL-1CA-0215 arrived and stopped near the gate of the college. Students including the deceased, asked driver to carry them up to Dhaula Kuan and driver agreed after accepting charges for their transportation. All the students boarded the tempo to go Dhaula Kuan. The tempo driver is alleged to have driven vehicle in a very high speed and lost control over the vehicle and it overturned on the way near South Campus at about 5.15 pm. As a result of the same, the deceased and other students sustained injuries. The deceased was taken to Safdarjang Hospital wherein he died on 02.02.95 because of the injuries sustained in the accident. 3. The claim petition was filed by the parents of the deceased. 4. The Respondent no.3 herein i.e. the Driver filed his written statement wherein he had denied his negligence. 5. Respondent no.4, the owner of the offending tempo remained ex parte and did not file any written statement. 6. The Appellant/Insurance Company herein has filed its written statement, wherein it was specifically pleaded that the Respondent no.3 was not having a valid driving licence at the time of accident and that the deceased was a gratuitous passenger who had been carried in the goods vehicle in breach of terms of the insurance policy and thus, the Appellant is not liable to pay any amount of compensation. 7. Vide impugned judgment, the Tribunal awarded the compensation of Rs.1,50,000/- along with the interest @ 8% from the date of filing of the petition. 8. Notice of this appeal was issued to all the Respondents. 9. Initially, Counsel for all the four Respondents appeared, but later on they absented. 10. On 19th March 2008, no one was present for the Respondents, hence in the interest of justice the order was deferred and matter for renotified on 9th July, 2008. 11. On 9th July, 2008, the matter was passed over since none appeared for the Respondents. 12. As none appeared for Respondents on two consecutive dates, the arguments advanced by Ld. Counsel for Appellant / Insurance Company were heard. 13. It has been contended by the Learned Counsel for Appellant that the tempo is a goods vehicle and carrying of passengers is not permitted and therefore, the deceased who was travelling in the said tempo was an unauthorized passenger. The Policy of Insurance is not required to cover risk of an unauthorized and gratuitous passenger under section 147 of the Act. Thus, the Tribunal has erred in directing the Insurance Company to pay the award amount and then recover from