[Cites 9, Cited by 0]
Bombay High Court
Kotak Mahindra General Insurance Co. ... vs Meena Mahendra Singh And Anr. on 9 February, 2026
2026:BHC-AS:6788 FA-2015-2024.DOC
Rekha Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2015 OF 2024
Kotak Mahindra General Ins. Co. Ltd.
Registered Office at 27, BKC, C-27,
G Block, Bandra Kurla Complex, Bandra,
Mumbai 400051. ...Appellant
Versus
1. Meena Mahendra Singh
Age: 48 years, Occu: Housewife
(Mother of the deceased)
R/o. 304, Om Sai Apartment, Digha Naka,
Old Belapur Road, Behind Digha Bus Stop,
Digha, Airoli, Navi Mumbai -400708.
2. Pooja Anil Agarwal
R/at. Flat No. 201, Bldg. No. 18,
NG Suncity Phase-8, Thakur Village,
Kandiwali (E), Mumbai 400 101 ...Respondents
Mr. Sarthak S. Diwan, for the Appellant.
Mr. T. J. Mendon with Mrs. Rina Kundu, for the Respondents.
CORAM : R. M. JOSHI, J.
RESERVED ON : 20th JANUARY 2026
PRONOUNCED ON : 09th FEBRUARY, 2026
JUDGMENT :
1. In this Appeal, the appellant/insurer has raised an issue
REKHA
PRAKASH
PATIL with regard to the maintainability of the proceeding against a
FA-2015-2024.DOC
dead person and as to whether without the owner of the offending
vehicle being made as a party-respondent to the proceeding under
Section 166 of the Motor Vehicles Act ("M.V. Act"), the insurer of
such vehicle can be held solely liable for payment of compensation
to the claimants.
2. The facts in this case are not in dispute i.e. the mother of
the deceased Sagar, who died in an accident occurred on 10 th
March, 2020, involving motor car bearing No. MH-47-W-4479
wherein he sustained injuries and succumbed thereto, filed claim
under Section 166 of M.V. Act. In the said petition, Pooja Anil
Agarwal i.e. owner of the vehicle and Kotak Mahindra General
Insurance Company Limited i.e. insurer of the vehicle were joined
as respondent Nos. 1 and 2, respectively. Admittedly, the
proceedings before the Tribunal were conducted ex-parte against
the respondent No.1 in view of the order dated 27 th September,
2023. An Application filed thereafter by the claimants for joining
legal representatives of respondent No.1 on record came to be
rejected. This order was not challenged by the claimants or insurer
at the relevant time. The claim, therefore, proceeded against the
respondent No.2 insurer and finally culminated into passing of the
impugned Judgment and Award.
3. Learned Counsel for the appellant/insurer submits that the
insurer led evidence before the Tribunal in order to show that
respondent No.1 died on 2nd July, 2019 i.e. prior to issuance of
insurance policy on 17th August, 2019 and also occurrence of
accident on 10th March, 2020. It is his contention that the claim
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petition was filed on 25th November, 2020, which is against a dead
person and hence, not maintainable.
4. It is his further submission that the contract of insurance is
void ab initio, being with dead person as such, the insurer is not
liable to pay compensation to the claimants. It is his submission
that in any case since the legal representatives representing the
estate of the deceased were not joined as party-respondent, the
Judgment impugned is not maintainable and hence, the Appeal
deserves to be allowed by relegating back the matter to the
Tribunal for joining legal representatives of the deceased
respondent No.1 on record and for decision of the claim petition
afresh.
5. Learned Counsel for the claimants opposed the said
contention, firstly on the ground that the appellant/insurer did
not challenge the order passed by the Tribunal for refusing to join
legal representatives of deceased respondent No.1 on record and
the same is exempted under Sub Rule 4 of Rule 4 of Order XXII of
the Code of Civil Procedure ("CPC"). It is his contention that even
in this Appeal no specific ground has been raised by the
appellant/insurer taking exception to the said order. On the point
of the liability of the insurer to pay the compensation, he placed
reliance on the following judgments.
i) United India Insurance Company Limited vs. Santro
Devi and Ors. (2009) 1 Supreme Court Cases 558.
FA-2015-2024.DOC
ii) A. Robert vs. United Insurance Co. Ltd. (1999) 8
Supreme Court Cases 226.
iii) Oriental Insurance Co. Ltd. vs. Nanjamma and Ors.
2005 ACJ 1534 (High Court of Karnataka at Bangalore).
iv) Pushpa Bajirao Thorat and Ors. vs. Dnyaneshwar
Kondaji Auti and Anr. 2019 ACJ 1658 (High Court of
Bombay -Aurangabad Bench).
6. It is his submission that in view of the provisions of Section
155 of the M.V. Act, the cause of action would survive against
estate of the deceased or against the insurer. Thus, it is contended
that in such case it was open for the claimants to claim
compensation only from the insurer and therefore, no error has
been committed by the Tribunal in passing impugned Judgment
and Award.
7. The appellant has not specifically challenged the order
passed by the Tribunal refusing to bring legal representatives of
respondent No.1 on record, taking help of provision of Order XXII
Rule 4 sub Rule 4 of the CPC, learned Counsel for the appellant,
however, sought leave of the Court to challenge the said order.
Since the facts of the present case on the face of it indicate that
this is the case wherein proceeding is filed against a dead person
and the said fact is ignored by the Tribunal, while passing order
on application to implead legal representatives of deceased
respondent No.1 on record by placing reliance on Order XXII Rule
4 Sub Rule 4 of the CPC, this Court found it appropriate to grant
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such leave to the appellant. No prejudice has been caused to
respondents /original claimants as the Counsel was given an
opportunity of hearing on the said ground.
8. It is not in dispute that the policy of insurance in respect of
offending vehicle insuring the owner thereof has been issued on
17th August, 2019. The accident occurred on 10 th March, 2020,
whereas the claim petition came to be filed on 25 th November,
2020. However, on the basis of unimpeachable evidence on
record, respondent No.1 died on 2 nd July, 2019 i.e. prior to
issuance of insurance policy, occurrence of accident, so also filing
of the claim petition.
9. It would be appropriate at this stage to take note of Section
155 of the M.V. Act, on which heavy reliance was placed by the
learned Counsel for the claimant, which reads thus,
"155. Effect of death on certain causes of action. -
Notwithstanding anything contained in section 306 of the
Indian Succession Act, 1925, the death of a person in
whose favour a certificate of insurance had been issued, if
it occurs after the happening of an event which has given
rise to a claim under the provisions of this Chapter, shall
not be a bar to the survival of any cause of action arising
out of such event against his estate or against the insurer."
10. A bare perusal of the said provision indicates that the death
of a person in whose favour certificate of insurance had been
issued, if it occurs after happening of an event which has given
rise to a claim under the provisions of this Chapter, there shall be
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no bar for the survival of any cause of action arising out of the
said event against the estate or against the insurer. It is thus clear
that in order to apply the said provision the insurance certificate
must have been issued to a person who is alive and if he dies after
happening of an event i.e. issuance of certificate of insurance,
accident or filing of the claim petition against him and in such
case there shall not be a bar to the survival of any cause of action
against his estate or against the insurer. In the instant case,
however, since the respondent No.1 i.e. owner of offending vehicle
died on 2nd July 2019 i.e. prior to happening of an event which
has given rise to the claim, the said provision has no application to
the instant case.
11. Now coming to the order passed by the Tribunal refusing to
join the legal representatives of deceased respondent No.1 to the
claim petition is concerned, though the claim proceeded ex-parte
against respondent No.1, however, the Tribunal has failed to take
into consideration the proved fact that the respondent No.1 had
already died even before filing of the claim petition. Thus, merely
because an order came to be passed proceeding ex-parte against
her the Tribunal ought not to have exempted the impleadment of
the legal representatives of the respondent No.1 to the petition.
The Tribunal ought not to have ignored the fact that the
practically the claim petition came to be filed against a dead
person, which is not maintainable.
12. Even otherwise, in the facts of the case there would be no
justification for the Tribunal to rely upon provisions of Order XXII
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Rule 4 Sub Rule 4 of the CPC in order to exempt bringing legal
representatives of respondent No.1 on record. It would be
relevant to take note the said provision which reads thus;
"ORDER XXII- DEATH, MARRIAGE AND INSOLVENCY
OR PARTIES-
4. Procedure in case of death of one of several
defendants or of sole defendant-
(4) The Court whenever it thinks fit, may exempt the
plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed to
file a written statement or who, having filed it, has
failed to appear and contest the suit at the hearing; and
judgment may, in such case, be pronounced against the
said defendant not withstanding the death of such
defendant and shall have the same force and effect as if
it has been pronounced before death took place."
13. The said provision does not contemplate the situation in
which there is a proceeding filed against a dead person. It deals
with a situation wherein any defendant/respondent is served and
fails to appear before the Court or fails to contest the proceeding
by filing Written Statement, in that case it is open for the Court/
Tribunal to exempt bringing legal representatives of such
defendant/respondent if he dies during the continuation of the
proceeding.
14. The Tribunal, therefore, in the instant case has erred in
exempting the bringing of legal representatives of respondent
No.1 on record by placing reliance on above provision. Even if
any order was passed by the Tribunal to proceed ex-parte against
respondent No.1, once it was brought on record that the said
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respondent was already dead before filing of proceeding itself, it
was the duty of the Tribunal to recall the order of refusing to bring
legal representatives of respondent No.1 to bring on record and
ought to have brought them on record for appropriate decision of
the proceeding.
15. It needs to be appreciated that the insurer is not principally
liable for payment of any compensation under Section 147 of the
M.V. Act is liable to indemnify the person or classes of persons
specified in the policy in respect of any liability which the policy
purports to cover. Needless to say that liability of payment of
compensation is tortious liability of owner and driver of the
offending vehicle. The liability of Insurer is to indemnify the same.
As such, unless the case is covered by section 155 of M.V. Act, no
order of payment of compensation could be passed only against
insurer. In the instant case, since the claim is filed against the
dead person, practically the claim is only against the insurer and
hence, the claim was not tenable itself, in the from in which it was
presented.
16. Having regard to the nature of proceeding and facts
involved in the case, the Tribunal ought to have allowed the legal
representatives of the deceased respondent No. 1 to be brought on
record and thereafter could have proceeded and decided the
claim. This exercise cannot be done in the present Appeal as an
opportunity to defend the proceeding to such legal representatives
of the deceased would be denied. This Court, therefore, finds it
appropriate to set aside the impugned Judgment and Award and
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to relegate the matter back to the Tribunal for decision afresh after
joining the legal representatives of deceased respondent No.1 as
party-respondent to the proceeding and after hearing them.
17. It is clarified that this court has not set aside the judgment
and award on merits of the case.
18. As a result of above discussion, following order is passed:
ORDER
a) The Appeal stands allowed.
b) The impugned Judgment and Award dated 7th
October, 2024 passed by the Tribunal is set
aside.
c) The proceeding in MACP No. 739 of 2020 be
relegated back to the Tribunal for decision
afresh after joining the legal representatives of
deceased respondent No.1 as party-respondent
to the said proceeding and after giving them an
opportunity of being heard.
19. The Appeal stands disposed of accordingly.
(R. M. JOSHI, J.)
FA-2015-2024.DOC
20. At this stage, learned counsel for the appellant drawn
attention of this Court to the fact in this appeal that appellant
has deposited entire amount of compensation as per the impugned
judgment and award, out of which 50% is permitted to be
withdrawn by the respondents/original claimants.
21. It is clarified that the amount deposited in the Tribunal, so
also the 50% amount which is permitted to be withdrawn by the
original claimants shall be subject to the outcome of the
proceedings before the Tribunal.
(R. M. JOSHI, J.)
