New India Assurance Co. Ltd v. Mohd. Jabir & Ors

V.B.GUPTA, J. rs/Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.439/2008 & CM No.11233/2008 % Judgment reserved on: 4th September, 2008 Judgment delivered on:23rd September, 2008 The New India Assurance Co. Ltd., 12/1, Asaf Ali Road, Jeevan Raksha Building, IInd Floor, New Delhi ….Appellant Through: Mr. P.K. Seth, Adv. Versus 1) Sh. Mohd. Jabir, S/o. Sh. Mohd. Islam, 2) Smt. Sairun Nisha, W/o. Sh. Mohd. Jabir, Respondents No.1 and 2 R/o. H. No.149, Village4 Loam, Anchal Darbhanga, Distt. Darbhanga, Bihar. 3) Sh. Ashok Goyal, S/o. Sh. Madhu Sudan Goyal R/o. Triputi Automobiles, H. No.8, Katputali, Jaipur, Rajasthan. …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. CM No.11234/2008 Allowed subject to all just exceptions. Application stands disposed of. MAC App. No.439/2008 & CM No.11233/2008 New India Insurance Company/the appellant has filed the present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short as "Act") against the award dated 2nd June, 2008 passed by Sh. Suresh Chand Rajan, Judge, MACT (for short as "Tribunal"), New Delhi. 2. Vide impugned judgment, the Tribunal awarded compensation to the tune of Rs.6,73,600/- along with interest @ 7% p.a. from the date of filing of petition till its realization. 3. The facts in brief are that one Mohd. Kazim, aged 20 years, suffered fatal injuries in a road accident on 7th June, 2006. The accident was allegedly caused by respondent No.3/Ashok Goyal, who was driving vehicle No.HR-47-8418 at a fast speed and in a rash and negligent manner. 4. On 7th June, 2006, deceased was waiting outside the jhuggis for the daily job of labour, in the meantime the truck in question carrying the cement sacks came there and the driver offered to work for unloading the truck to the deceased and engaged him for work. Deceased boarded the truck and the driver took the truck towards the main nala patri, in spite of warning from the co-labourer that the road is narrow. In spite of this, the driver kept on driving the truck on the said park, which was not fit for driving and was in a bad condition, due to which the truck turned turtle and deceased fell down. He was removed to Rao Tula Ram Hospital where he was declared brought dead. Respondent No.3 was the driver as well as the owner of the offending vehicle and the vehicle was duly insured with the appellant at the time of the accident. 5. Respondent No.3 was duly served but did not appear in the trial court and as such vide order dated 6th January, 2007, he was proceeded ex-parte. 6. The appellant in its written statement filed before the trial court admitted that the vehicle in question was insured with it. However, it is stated that on the facts and circumstances of the present case, no accident as narrated in the claim petition has taken place. The driver of the offending vehicle while driving the vehicle should have a valid and effective driving licence and unless and until the same is proved, no liability can be imposed against the appellant. 7. Aggrieved with the judgment passed by the Tribunal, the appellant has filed the present appeal. 8. The first contention of learned counsel for appellant is that the impugned order has been passed under section 163A of the Act and under this section no future prospects can be considered. The general damages cannot exceed beyond the Second Schedule of the Act and since the order has been passed under section 163A of the Act, provision of section 170 of the Act are not applicable to the impugned order. 9. As per the title of the petition, this petition has been filed under section 163A of the Act in the Tribunal. However, the Tribunal has been registered this petition under section 166 and 140 of the Act, as per its Order dated 3rd August, 2006. 10. In the impugned judgment also, it has been stated