Oriental Insurance Co. Ltd v. Om Prakash & Ors

V.B.GUPTA, J. rs/Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.441/2008& CM No.11237/2008 % Judgment reserved on: 9th September, 2008 Judgment delivered on: 26th September, 2008 The Oriental Insurance Co. Ltd. Regional Office No.1, 88, Janpath New Delhi 110001. ….Appellant Through: Mr. R.B. Shami, Adv. Versus 1. Om Prakash S/o. Sh. Hukam Chand 2. Smt. Murti W/o. Sh. Om Prakash Both R/o. H. No.16/1701, Sangam Vihar, New Delhi Claimants 3. Sukhbir Singh S/o. Sh. Gurdial Singh Permanently Resident of Vill. Hasanpur Post Fauvar, PS: Machivada Distt. Lidhiana, Punjab. Driver 4. Paramjeet singh S/o. Sh. Harbans Singh R/o. H. No.21, Mini Market, DDA Flats Kalakaji, New Delhi Owner …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 appellant/Insurance Company has filed present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short as "Act") against the award dated 3rd May, 2008 passed by Ms. Deepa Sharma, MACT (for short as "Tribunal"), New Delhi. 2. Brief facts of this case are that on 28th October, 2003, respondent No.1 was coming on his scooter No.DL-4-SC-1977 along with his brother Phol Singh and his daughter Riya, aged 3½ years, who was standing on scooter in front of respondent No.1. While coming from Janak Puri and going towards Sangam Vihar via alof palame Marg at about 8.15 a.m., when they reached Sector 3, Masjid, R.K. Puram Red Light, respondent No.3/Sukhbir Singh came driving taxi No.DL-IT-3078 in a rash and negligent manner and at a high speed, and overtook the scooter and suddenly applied brakes. Due to sudden application of brakes by respondent No.3, the scooter of respondent No.1 got hit at the back of the taxi and as a result thereof, his daughter sustained injuries as the handle of the scooter struck in her chest. She was taken to the Hospital South Point, GK-II, Masjid Moth. After giving first aid, she was referred to Govt. hospital and was brought to Safdarjung hospital where she was declared brought dead. The accident has taken place due to rash and negligent driving on the part of respondent No.3. 3. The offending vehicle was owned by respondent No.4/Paramjeet Singh and it is insured with appellant/Insurance Company. 4. Vide impugned award, the Tribunal granted compensation of Rs.2,75,000/- to respondents No.1 and 2, who are the claimants. 5. Respondents owner/driver filed joint written statement before the Tribunal stating that respondent No.3/driver of taxi was having a valid driving licence at the relevant date and time. It is not disputed that respondent No.4 was the owner of offending taxi. The factum of accident has been admitted. However, it is stated that the taxi was going ahead and respondent No.1 has failed to maintain the minimum distance from the taxi. The taxi never overtook the scooter and while the taxi had halted, respondent No.1 could not apply brakes of his scooter and thus he could not control the scooter, which hit the back of the taxi and consequently, there was impact on the chest of little girl and thus accident occurred due to negligence on the part of respondent No.1. 6. Appellant/Insurance Company has admitted the factum of accident. However, it is stated that the driver of the taxi was not having any valid and effective driving licence for particular category of the vehicle which he was found to be driving at the time of alleged accident, therefore, the appellant is not liable at all on account of breach of terms and conditions of the Insurance policy. 7. It has been contended by the learned counsel for the appellant that the present claim petition has been filed under section 163A of the Act and the Tribunal could not have passed award for more amount than the amount fixed as per Second Schedule of the Act. The Tribunal, wrongly relied upon the decisions of Apex Court and Hig