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2014 DIGILAW 925 (DEL)

United India Insurance Co. v. Jagpal

2014-03-18

SURESH KAIT

body2014
Judgment Suresh Kait, J. 1. The present appeal is preferred against the impugned judgment dated 27.01.2010, whereby the learned Tribunal has awarded compensation for an amount of Rs.1,28,830/-with interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization of the amount. 2. It is pertinent to mention here that respondent No.3 was proceeded ex parte vide order dated 02.05.2011 passed by this Court and respondent No. 2 had been served through publication, despite, appearing none on their behalf. 3. Learned counsel appearing on behalf of the appellant/Insurance Company submitted that the main grievance is that the driver of the offending vehicle was not holding valid driving licence on the date of the accident, despite that the learned Tribunal has not granted recovery rights in favour of the appellant company and against respondent Nos. 2 and 3. 4. As per PW1/ the claimant, on 24.01.2005 at about 2.30 pm, while he was going on a motorcycle towards his house, another motorcycle bearing No.DL-7S-AM-0244 came from the front side, i.e., Ganga Vihar side, and hit against his motorcycle, as a result of which he fell down on the road and sustained injuries. 5. While deciding the issue No.1, it was observed by the learned Tribunal that as per the statement of PW1 it is established that the accident occurred on 24.01.2005 due to rash and negligent driving of motorcycle bearing No.DL-7S-AM-0244. 6. Vide order dated 06.02.2008, an additional issue was framed and it was recorded by the learned Tribunal that the case of the respondent No.3 was that he was not driving the offending vehicle at the time of the accident. 7. On the other hand, learned counsel for the respondent No.2 contended before the learned Tribunal that the offending motorcycle bearing No.DL-7S-AM-0244 was stolen on 24.01.2005 at about 2.00 pm and when he went to lodge an FIR in the Police Station, he came to know that the said motorcycle was recovered from one Mr. Parvej and that it was involved in the accident. 8. Accordingly, it was observed by the learned Tribunal that the contention of respondent No. 2 could not be considered because he did not lead any evidence to prove that the said motorcycle was stolen and at the time of the accident, he was not in possession of the said vehicle. Parvej and that it was involved in the accident. 8. Accordingly, it was observed by the learned Tribunal that the contention of respondent No. 2 could not be considered because he did not lead any evidence to prove that the said motorcycle was stolen and at the time of the accident, he was not in possession of the said vehicle. Moreover, the respondent No.1/claimant has admitted in his cross-examination dated 16.05.2006, that the offending vehicle was driven by Parvej. However, he did not identify the driver of the offending vehicle. Thus, the learned Tribunal opined that respondent No. 2 was not driving the offending motorcycle at the time of accident. 9. Qua issue No.2, the learned Tribunal opined that as regards the liability, respondent No.2, i.e., owner of the offending vehicle is liable to pay compensation. Despite that, the learned Tribunal has not granted recovery rights in favour of the appellant company and against the respondent No.2. 10. In view of the evidence on record, I am of the considered opinion that the learned Tribunal has lost sight while not granting recovery rights. Therefore, keeping in view the facts and circumstances of the case, the appellant/Insurance Company is entitled to recover the amount from respondent No.2, i.e., owner of the offending vehicle. 11. Learned counsel for the appellant has also argued that the learned Tribunal has wrongly granted a sum of Rs.25,000/- on account of actual and estimated medical expenses. 12. However, keeping in view the injuries sustained by the respondent No.1/claimant and the fact that he remained under treatment for about eight months, I do not find any substance on this issue raised by the counsel of the appellant. 13. Hence, the appeal is partially allowed. 14. Consequently, the Registry of this Court is directed to release the statutory amount in favour of the appellant/Insurance Company and the balance compensation in favour of the respondent No.1/injured in terms of the award dated 27.01.2010.