The New India Assurance Co. Ltd v. Brijesh Maji @ Viresh & Ors

V.B.GUPTA, J. Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.419 of 2008 % Judgment reserved on: 31st July, 2008 Judgment delivered on: 7th August, 2008 The New India Assurance Co.Ltd. CDV C-2, Mahavir Bhawan, 4th Floor, Karampura Comm. Complex, New Delhi. ….Appellant Through: Mr.Mohan Babu Aggarwal, Adv. Versus 1.Brijesh Maji @ Viresh S/o Sh.Baij Nath R/o Jhuggi No.A-700, Ambedkar Basti, New Delhi. 2.Mustkim S/o Sh.Nasir Ahmed, R/o B-49, Kusumpur Pahari, Basant Kunj, New Delhi. 3.Ashok Kumar Chawla, S/o Sh.S.C.Chawla R/o B-77, Raghubir Nagar, New 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. The present appeal under section 173 of the Motor Vehicles Act, 1988 (for short as the "Act") has been filed by the Appellant/Insurance Company against the impugned award dated 16.05.08 passed by Ms. Neena Bansal Krishna, Judge, Motor Accident Claims Tribunal (for short as the "Tribunal"). 2. The necessary facts for the disposal of this appeal are that on 19.10.05, Brijesh Maji @ Viresh, Respondent No.1 herein, was going on his bicycle to his house. At about 10.30 p.m., when he reached at Sector-I, R.K.Puram red light, a Tata Sumo No. DL-1 VB-2332 which was being driven by Respondent No.2 herein in a rash and negligent manner hit into the Respondent No.1"s cycle due to which he fell and sustained grievous injuries. He was taken to Safderjung Hospital for treatment. 3. The Respondent No.1 filed the claim petition claiming Rs.1,00,000/- against the Respondent No.2 being the driver of the offending vehicle, Respondent No.3 being the owner of the offending vehicle and Appellant, as the offending vehicle was insured with them. 4. Respondent No.2 in his written statement took the preliminary that he has been falsely implicated in this case. 5. Respondent No.3 in his written statement took the preliminary objection that he is not aware of any accident having been caused by his vehicle though FIR was registered against his vehicle and his vehicle was impounded in the criminal case. On merits, all the allegations made in the petition are denied. 6. Appellant in its written statement took the preliminary objection that it is not liable to pay compensation if it is found that the driver of the offending vehicle was not holding a valid license or was disqualified from holding the same. On merits, all the averments made in the petition were denied, though it is admitted that the vehicle was insured with it. 7. Vide impugned judgment, the Tribunal awarded compensation of Rs. 71,000/- (rounded off) along with the interest @ 7.5% from the date of institution till the date of payment. 8. It has been contended by the Ld. Counsel for the Appellant that the Tribunal has not considered the fact that as per the investigating report and evidence produced before the Tribunal, the offending vehicle is a Tata Sumo and the same was also insured as Passenger Carrying Commercial Vehicle and also the Registration Certificate of Vehicle is for Passenger Carrying Commercial Vehicle and as per MLO record proved before the Court, the Driving licence is valid for light motor vehicle (Non-Transport Vehicle) and not for commercial transport vehicle or for commercial plying etc. The driver of the offending vehicle was not in possession of a valid driving licence. Thus, there is clear violation of insurance policy by the driver and owner of the vehicle and so, the Insurance Company has no liability of any kind for payment to the claimant. 9. Though Respondent No.2 and Respondent No.3 in their written statement denied the accident but in the cross examination of the Respondent No.1, had given a suggestion that accident occurred since the Respondent No.1 abruptly came in front of the vehicle while crossing the road. 10. Thus, the Respondents No.2 & 3 have admitted the fac