Full Text
$-16 & 17 HIGH COURT OF DELHI
Date of Decision: 02nd March, 2015
THE NEW INDIA ASSURANCE CO LTD. ..... Appellant
Through: Mr.Pankaj Seth Gaur, Advocate
Through: Mr. Aman Shankar, Advocate
THE NEW INDIA ASSURANCE CO LTD. ..... Appellant
Through: Mr.Pankaj Seth Gaur, Advocate
Through: Mr. Aman Shankar, Advocate
JUDGMENT
1. The only ground urged by the learned counsel for the Appellant 2015:DHC:2019 at the time of hearing of the appeals is that since the offer given by the Appellant Insurance Company was not accepted by the Respondents(claimants), the Claims Tribunal instead of going into the question of negligence, directly proceeded to determine the quantum of compensation. The learned counsel for the Appellant has urged that once the offer given by the Appellant was not accepted, it was obligatory on the part of the Claims Tribunal to have first proceeded to decide the question of negligence.
2. On the other hand, the learned counsel for the Respondents (claimants) submits that since in three other matters arising out of this very accident, the offer given by the Appellant Insurance Company was accepted by the Respondents, this would amount to admission of the liability by the Appellant and hence, while hearing the two remaining claim petitions out of which these two appeals have risen, the Claims Tribunal was not under any obligation to go through the question of negligence.
3. I am not inclined to agree with the submissions raised on behalf of the Respondents. The settlement on the basis of Detailed Accident Report(DAR) procedure will not be binding upon the insurer on the question of negligence. I had the occasion to examine in detail the Claims Tribunal Agreed Procedure in Oriental Insurance Co Ltd. v. Asha Kalra, CM(M).749/2012 decided on 30.07.2012 and I held that in a petition under Section 166 of the Motor Vehicles Act, 1988 it will be obligatory for the claimant to prove negligence on the part of the driver of the insured vehicle to claim compensation. Paras 8 to 13 of the report in Asha Kalra(supra) are extracted hereunder:
address supplied by the Claimant to the investigating police officer, free of charge;
(iii) To the owner/driver at the addressed supplied by the owner /driver to the police investigating officer, at a cost of Rs. Five per page;
(iv) To the nodal officer of the concerned Insurance
Company at a cost of Rs. ten per page. (3) The Investigating Officer of the Police shall also furnish a copy of Detailed Accident Report along with complete documents to Secretary, Delhi Legal Services Authority, Central Office, Pre-Fab Building, Patiala House Courts, New Delhi. Delhi Legal Services Authority shall examine each case and assist the Claims Tribunal in determination of the just compensation payable to the claimants in accordance with law. (4) Where the Investigating Officer is unable to complete the investigation of the case within 30 days for reasons beyond his control, such as cases of hit and run accidents, cases where the parties reside outside the jurisdiction of the Court cases, where the driving licence is issued outside the jurisdiction of the Court, or where the victim has suffered grievous injuries and is undergoing treatment, the Investigating Officer shall approach the Claims Tribunal for extension of time whereupon the Claims Tribunal shall suitably extend the time in the facts of each case. (5) The Investigating Officer shall produce the driver, owner, claimant and eye-witnesses before the Claims Tribunals along with the Detailed Accident Report. However, if the Police is unable to produce the owner, driver, clamant and eye-witnesses before the Claims Tribunal on the first date of hearing for the reasons beyond its control, the Claims Tribunal shall issue notice to them to be served through the Investigating Officer for a date for appearance not later than 30 days. The Investigating Officer shall give an advance notice to the concerned Insurance Company about the date of filing of the Detailed Accident Report before the Claims Tribunal so that the nominated counsel for the Insurance Company can remain present on the first date of hearing before the Claims Tribunal. (6) The duties enumerated in Clause (3) and (4) above shall, as per Rule 3(2) of the 2008 Rules be construed as if they are included in Section 60 of the Delhi Police Act 1978 (34 of 1978) and any breach thereof shall entail consequences envisaged in that law, as provided for under Rule 3(2).”
10. Thus, as per Rule 4 (2) of the Agreed Procedure, the IO is required to forward a copy of the DAR to the Nodal Officer of the Insurance Company on payment of charges @ `10/- per page.
11. Rule 4 (5) of the Agreed Procedure lays down that the IO shall give an advance notice to the Insurance Company about the date of filing of the DAR before the Claims Tribunal so that the nominated counsel for the Insurance Company can remain present on the first date of hearing before the Claims Tribunal.
12. Rule 6 (3) of the Agreed Procedure enjoins an Insurance Company to communicate its reasoned decision to the Claims Tribunal through its designated officer within a period of 30 days on receipt of DAR. This reasoned decision is basically a legal offer given by the Insurance Company to the Claimant. If the same is accepted by the Claimant, the matter comes to an end and an order is required to be passed by the Claims Tribunal in view of the offer by the Insurance Company and its acceptance by the Claimant.
13. Rule 6 (6) of the Agreed Procedure talks about situation where the legal offer is not acceptable to the Claimant or where the Insurance Company has a defence available to it under the law in that eventuality, the DAR has to be inquired into as a Claim Petition under Section 166 or 163-A of the Act.”
4. In view of this, the impugned judgments cannot be sustained. The same are accordingly set aside.
5. The cases are remanded back to the Claims Tribunal for deciding the issue of negligence first before determining the compensation amounts. The Claims Tribunal shall go into the quantum of compensation afresh and both the parties shall be at liberty to raise all grounds available to them.
6. Parties are directed to appear before the Claims Tribunal on 07.04.2015.
7. A copy of the order be transmitted to the concerned Claims Tribunal through the District & Sessions Judge concerned.
8. The Claims Tribunal shall endeavour to dispose of the case expeditiously and, in any case, within three months of the date of appearance before the Claims Tribunal.
9. Pending applications, if any, also stand disposed of.
10. Statutory amount, if any, deposited shall be refunded to the Appellant Insurance Company.
JUDGE MARCH 02, 2015 pst