National Insurance Co.Ltd v. P.V.Lonan & Ors

V.B.GUPTA, J. rs/Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.410/2008 & CM No.10331/2008 % Judgment reserved on: 4th September, 2008 Judgment delivered on:25th September, 2008 National Insurance Co. Ltd., 1st Floor, Palika Bhawan, R.K. Puram, New Delhi-66. Also at: DRO-II, 2E/9, Jhandewalan Extension, New Delhi ….Appellant Through: Mr. P.K. Seth, Adv. Versus 1) Sh. P.V. Lonan, S/o. Lt. Sh. P.C. Vareed, Parekkat House, Kalliyad, Vill: Thirumakkulam, Post Kundoor 680734, District Trissur (Kerala). 2) Smt. Mary Lonan, W/o. Sh. P.V. Lonan, Parekkat House, Kalliyad, Vill: Thirumakkulam, Post Kundoor 680734, District Trissur (Kerala). 3) Shri Gurmeet Singh, R/o. Q-214, Dilshad Garden, New Delhi 4) Shri Naresh Kumar, S/o. Shri. D.D. Sharma, A-31/140, Maujpur, 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. National Insurance Company/appellant herein, has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short as "Act") against the award dated 13th March, 2008 passed by Sh. J.P.S. Malik, Judge, MACT (for short as "Tribunal"), New Delhi, vide which claimants were awarded compensation to the tune of Rs.3,79,968/- along with simple interest @ 9% p.a. from the date of filing of the petition till realization. 2. Brief facts of this case are that on 9th February, 2002, Late Latish Kumar was going to Mayur Vihar Phase III from Connaught Place, New Delhi as a pillion rider on motorcycle No.DL-3SE-7813, which was being driven by Mr. Rajesh Kumar and they were proceeding via Pragati Maidan, ITO Road. It is alleged that when deceased and Rajesh Kumar reached near Nizamuddin bridge and were taking a turn towards the bridge and near the merging point, they were hit by a chartered bus No. DL-1P-A-5581, which was being driven in a rash and negligent manner. The scooter was hit by the bus from behind, due to which Rajesh Kumar and deceased fell down on the road and both of them sustained injuries. Rajesh Kumar suffered minor injuries whereas, deceased Latish Kumar suffered grievous injuries. Deceased was shifted to Jeevan Anmol Hospital, Mayur Vihar but he succumbed to his injuries and died on 9th February, 2002. 3. The offending bus was being driven by respondent No.4/Naresh Kumar and it was owned by respondent No.3/Gurmeet Singh and was insured with the appellant/Insurance Company. 4. Driver and owner of the offending bus had filed joint written statement stating that there is no cause of action against these respondents, as no accident has taken place on the given date and time. It is further stated that the deceased was a pillion rider on a two wheeler vehicle and the driver of two wheeler was very rash and negligent and was driving the same in a zig- zag manner on the Nizamuddin bridge. However, the bus driven by respondent/driver had over took the motorcycle while the bus was on the right side of the motorcycle and the motorcyclist perhaps lost his balance and struck the motorcycle on the road and sustained injuries and thus the motorcyclist himself was rash and negligent. 5. On the other hand, the appellant/Insurance Company in its written statement has stated that the accident, if any, has been caused due to rash and negligent driving of the driver of the scooter and respondent No.3/Gurmeet Singh, was not the driver of the bus and he was not driving the above bus at the time of the accident. 6. Further, it is stated that the bus in question was not insured with the appellant at the time of the alleged accident. The respondent/owner has deposited the cheque of the premium and the appellant had issued receipt of the premium of policy, subject to realization. Later on, the cheque was dishonoured with the remarks "insufficient fund" and the appellant had intimated respondent/owner, but respondent/owner had not turned t