Rajinder Kumar vs Vidhata Devi & Ors
2010 Latest Caselaw 2269 Del

                                                   UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                              FAO No.319/2008


                                     Date of Decision: April 28, 2010


       RAJINDER KUMAR                ..... Appellant
                    through Mr. Ranjit Singh, Advocate


                     versus


       VIDHATA DEVI & ORS                ..... Respondents
                     through Mr. SPS Rathore, Advocate for
                     respondents No.1 to 5.
                     Mr. K.L.Nandwani, Advocate for R-6.


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

By an order dated August 26, 2006 passed by the Motor

Accident Claims Tribunal (hereinafter referred to as the Tribunal), the

appellant before me who was the owner of the offending vehicle was

fastened with the liability to pay a sum of Rs.1,55,356/- with interest

@ 6% per annum to respondents No.1 to 5. The said order was

passed in the absence of the appellant as despite service, none had

appeared for him. Consequent upon the passing of the order dated

August 26, 2006, the appellant filed an application under Order 9

Rule 13 of the Code of Civil Procedure for setting aside of the ex-parte

order against him and therein the appellant took the plea that the

vehicle in question was insured with the United India Insurance

Company and hence, it was the said company which was liable to pay

the awarded amount. The Tribunal dismissed the aforesaid

application on July 09, 2008 holding that the appellant himself had

admitted in the application that notice on his behalf was received by

his father. The Tribunal has also held that the Insurance Company

which was made a party to the proceedings only in the application

under Order 9 Rule 13 of the Code of Civil Procedure denied the

factum of the insurance of the offending vehicle at the time of the

accident and the appellant never placed on record the original

insurance policy.

Having heard learned counsel for the appellant as well as the

counsels for the Insurance Company and the other respondents, I find

no infirmity in the impugned order dated July 09, 2008. The

Insurance Company was not a party to the original proceedings. The

Insurance Company came into the picture only after the appellant

moved an application under Order 9 Rule 13 of the Code of Civil

Procedure. As already noticed above, the Insurance Company denied

the factum of the insurance of the vehicle. The appellant who claimed

that the offending vehicle was insured at the relevant time with the

Insurance Company ought to have filed the original insurance policy.

The same having not been filed, the Tribunal rightly rejected the

submission of the appellant.

For the foregoing reasons, the appeal is dismissed. However, it

will be open to the appellant to take appropriate proceedings against

the Insurance Company as per law.

REKHA SHARMA, J.

APRIL 28, 2010 PC/ka