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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 949/2016
QATAR AIRWAYS Q.C.S.C ..... Plaintiff
Through: Ms. Marisha Shukla, Advocate.
versus
BIRD WORLDWIDE FLIGHT SERVICES INDIA PVT LTD..... Defendant
Through: Mr. Virender Mehta, Advocate with
Mr. Gautam Mehta, Advocate and
Mr. Tarak Saha, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
ORDER
% 03.01.2018 I.A. No.2/2018 (for condonation of delay)
1. For the reasons stated in the application, delay of 25 days in filing the O.A. is condoned.
I.A. stands disposed of.
O.A. No.1/2018
2. By this chamber appeal, the sole defendant in the suit impugns the order of the Joint Registrar dated 10.11.2017 by which the Joint Registrar has dismissed the application under Order 1 Rule 10 of Code of Civil Procedure, 1908 (CPC) filed by the appellant/defendant for adding CS(COMM) No.949/2016 page 1 of 4 National Insurance Company Ltd as a second defendant in the suit.
3. The subject suit is filed by the plaintiff seeking recovery of money on account of damage caused to the plaintiff's aircraft by the defendant. The defendant has pleaded in the present application as also in the written statement that the defendant is insured for the event in terms of an insurance policy taken out from the National Insurance Company Ltd. Copy of this insurance policy has been filed with the documents of the defendant and a prima facie reading of the same shows that in case there is any loss caused to the defendant on account of any accident to the aircraft of the plaintiff, then possibly the loss may have to be paid by the insurance company. Basically the insurance company, namely National Insurance Company Ltd is sought to be added as an additional defendant in the suit by pleading joint and severe liability of the existing defendant with National Insurance Company Ltd and ultimately taking over of liability of the existing defendant by National Insurance Company Ltd.
4. Learned counsel for the plaintiff opposes the appeal however counsel for the plaintiff has no answer to the fact that plaintiff is not in any manner going to be prejudiced by adding National Insurance Company Ltd CS(COMM) No.949/2016 page 2 of 4 as an additional defendant in the suit because by adding National Insurance Company Ltd it is not as if that the liability of the existing defendant will go away. Liability if fastened upon the existing defendant when the suit is decreed will be joint and several of National Insurance Company Ltd with the existing defendant. I may note that issue in favour of the defendant may also be possibly covered in terms of Section 41 of the Contract Act, 1872 and the judgment of the Supreme Court reported as Kapur Chand Godha Vs. Mir Nawab Himayatalikhan Azamjah AIR 1963 SC 250. To give examples where insurance companies are added as defendants/respondents, we can take reference to claims filed under the Motor Vehicles Act and Employees Compensation Act.
5. Accordingly, since there is no prejudice to the plaintiff by addition of National Insurance Company Ltd as an additional defendant in the suit, impugned order of the Joint Registrar dated 10.11.2017 is set aside and the National Insurance Company Ltd is added as a second defendant in the suit. At the cost of repetition, it is clarified that this Court has made no final observations one way or the other with respect to any claim of the plaintiff on account of the addition of National Insurance Company Ltd or CS(COMM) No.949/2016 page 3 of 4 that as if the existing defendant will not be liable (in addition to the liability of the National Insurance Company Ltd) and which aspects will be decided finally at the time of disposal of the suit.
6. O.A. is accordingly allowed. Amended memo of parties be filed by the existing defendant within two weeks from today by making National Insurance Company Ltd as defendant no.2 in the suit. CS(COMM) No.949/2016
7. Let summons in the suit now be issued to the newly added defendant no.2 on the existing defendant filing process fee, both in the ordinary method as well as by registered post AD, returnable before the Joint Registrar on 9th February, 2018, the date already fixed.
VALMIKI J. MEHTA, J
JANUARY 03, 2018
Ne
CS(COMM) No.949/2016 page 4 of 4