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2009 DIGILAW 140 (DEL)

New India Assurance Co. Ltd. v. Om Vati

2009-02-02

J.R.MIDHA

body2009
JUDGMENT : J.R. MIDHA, J. 1. Late Mr. Kishan Gopal was travelling in tempo bearing number DEL-6417 on 20.11.1982, when there was head-on collision between said tempo and truck bearing number JKP-8611. The deceased sustained severe injuries resulting into his death. 2. The deceased was aged about 40 years at the time of his death and was survived by respondents No. 1 to 6 who filed the claim petition before the Learned Tribunal. 3. The Learned Tribunal passed an award for Rs. 1, 44,000/- along with interest at the rate of 12% per annum in favour of respondents No. 1 to 6. 4. The Learned Tribunal held that the drivers of both the vehicles were negligent and, therefore, the award was passed jointly and severally against the appellant and respondents No. 7 to 10. 5. The appellant is the insurer of tempo bearing number DEL-6417. The truck bearing number JKP-8611 was not insured. 6. The contention of the learned Counsel for the appellant is that being the insurer of the tempo, the liability of the appellant is restricted to 50% of the award amount and the remaining 50% should be borne by the driver and the owner of the truck and, therefore, the Learned Tribunal fell in error in holding all the respondents jointly and severely liable. 7. Learned Counsel further submits that the Learned Tribunal was also in error in holding that both the vehicles were insured with New India Insurance Company. 8. The learned Counsel further submits that the appellant was the insurer of the tempo only and not of the truck. 9. The learned Counsel for respondents No. 1 to 6 refers and relies upon the Division Bench judgment of this Court in the case of Om Wati and Others Vs. Mohd. Din and Others, (2002) ACJ 868 where it was held as under: 12. We, therefore, hold that it was a case of composite negligence in case of Shiv Singh and Sat Pal and their claimants had an option to file the claim petition either against all or any one of the joint tort-feasors and their failure to implead the tort-feasors of the car was not fatal for their claim and that First Appellate Court had wrongly forfeited their 30% share of awarded compensation amount for this which they were entitled to recover from the Appellate company, being insurer of tort-feasors of truck. It was then be open to the company to recover such amount from the owner/insurer of the car jointly or severally. 10. This case is squarely covered by the ratio of the above case and claimant is entitled to claim the entire award amount from the appellant. The appeal is, therefore, dismissed. 11. Learned Counsels for the parties state that the entire award amount has been deposited with this Court in pursuance to the interim order dated 18.10.1994 and 50% of the award amount has been released to respondents No. 1 to 6 without security and remaining 50 % has been released against bank guarantee. 12. Since the appellant has already deposited entire award amount, the award stands satisfied with respect to respondents No. 1 to 6. The bank guarantee furnished by respondents No. 1 to 6 is discharged and the Registrar is directed to return the same to respondents No. 1 to 6 through their counsel.