Judgment:
$~14 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:
09. h August, 2017 + MAC.APP. 319/2009 and CM93432009 NEW INDIA ASSURANCE CO. LTD. ..... Appellant Through: Mr. D.K. Sharma, Advocate versus CORAM: HON'BLE MR. JUSTICE R.K.GAUBA NISHANT RAWAT & ORS JUDGMENT (ORAL) Through: Mr. Amit Dubey, Adv. for R-2 & 3 ........ RESPONDENTS
1. The first respondent, then aged 15 years, was travelling in a school bus bearing registration no.MP-09-K-4271 on 14.09.2005 in the area of Village Rampur, Uttaranchal (now the State of Uttarakhand) when the vehicle came in contact with a tractor bearing registration no.UP-06-9445 (the tractor) moving on road with a trolley attached to it. The child suffered injuries in the right upper limb which had to be amputated rendering him permanently disabled. The accident claim case (suit no.119/8) was filed seeking compensation on his behalf impleading the appellant herein as the first respondent, it admittedly being the insurer in relation to the tractor, the other respondents being the owner and driver of the said vehicle, with averments made to the effect that the accident had occurred due to the MAC Appeal No.319/2009 Page 1 of 3 negligence on the part of the tractor / driver.
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry, and by the impugned judgment dated 28.02.2009, upheld the contention of the claimants based on principle of fault liability upholding the tractor driver negligent. The compensation in the total sum of Rs.6,47,000/- was awarded with interest in favour of the claimants and the liability was fastened against the appellant insurance company. The insurer had taken the plea that since only the tractor was insured, the fact that it was moving on road with a trolley attached amounted to breach of the terms and conditions of the policy and therefore, sought exoneration. This plea was repelled by the Tribunal.
3. This appeal by the insurer is pressed only to seek recovery rights against the owner and driver of the tractor, it being reiterated that the attachment of the trolley amounted to breach of the terms and conditions of the policy. Reference was made in the course of arguments to the admission by the owner through its Director Sumit Lokhotia (R2W1) that trolley was not separately insured, this coupled with the statement of Surender Singh (R1W1), an official of the appellant / insurance company, to the effect that the premium was paid only to cover the tractor against the insurance policy towards third party risk.
4. The above contention of the insurer must be rejected. The Tribunal has observed, and rightly so, that the accident had occurred due to the negligent driving of the tractor. There is nothing in the evidence to show that the attachment of the trolley was the cause for the collision. In these circumstances, the rule of main purpose applies MAC Appeal No.319/2009 Page 2 of 3 [see National Insurance Company V. Swaran Singh (2004) 3 SCC297. Consequently, the appeal is dismissed.
5. The insurance company had deposited the awarded amount in terms of the interim order from which a part was allowed to be released. The balance shall also now be released to the claimants.
6. 7. The statutory amount shall be refunded. The appeal and the pending application are disposed of in above R.K.GAUBA, J.
terms. AUGUST09 2017 yg MAC Appeal No.319/2009 Page 3 of 3