National Insurance Co. Ltd. vs Ravinder & Anr.
2011 Latest Caselaw 6001 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: 7th December, 2011
                                           Pronounced on: 8th December, 2011

+        C.M. (M) 518/2011

         NATIONAL INSURANCE CO. LTD.        ..... Petitioner
                 Through: Ms. Shantha Devi Raman, Adv.

                                         Versus

         PINKI SHARMA & ORS.              ..... Respondents
                  Through: Mr. Anshuman Bal, Adv. for R-1 to
                           R-6.

+        C.M. (M) 505/2011

         NATIONAL INSURANCE CO. LTD.        ..... Petitioner
                 Through: Ms. Shantha Devi Raman, Adv.

                                         Versus

         RAVINDER & ANR.                                 ..... Respondents
                 Through:                Mr. Anshuman Bal, Adv. for R-1.

+        C.M. (M) 519/2011

         NATIONAL INSURANCE CO. LTD.        ..... Petitioner
                 Through: Ms. Shantha Devi Raman, Adv.

                                         Versus

         PUSHPA & ORS.                                  ..... Respondents
                  Through:               Mr. Anshuman Bal, Adv. for R-1 to
                                         R-15.




C.M. (M) 518/2011, 505/2011 & 519/2011                           Page 1 of 4
          CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL
                       JUDGMENT

G. P. MITTAL, J.

1. The Petitioner National Insurance Co. Ltd. impugns the orders dated 06.12.2010 passed in three claim petitions bearing Nos.518/2011, 505/2011 & 519/2011 whereby an application under Order VI Rule 17 read with Order I Rule 10 and Section 151 of Code of Civil Procedure for impleading the driver/ owner and Insurer of vehicle No.DL-1RE-8486 (TSR) was dismissed by the Tribunal.

2. The ground set up in the application before the Tribunal was that during investigation of the FIR No.234/2008, Police Station, New Friends Colony, it transpired that the accident took place on account of the rash and negligent driving of the TSR driver and that is why a closure report was submitted before the Court on 15.01.2009 by the SHO of the Police Station.

3. The application was resisted by the Respondents by refuting the averments made in the application. It was submitted before the Tribunal that closure report was submitted in the FIR because of some extraneous consideration.

4. The Tribunal relied on New India Assurance Co. Ltd. v. Omwati & Ors., 2010 ACJ 2281 and held that in case of composite

negligence the Claimant had a choice to sue any or either of the tortfeaser. Thus, the application was rejected being devoid of any merit.

5. It is urged by the learned counsel for the Appellant - Insurance Co. that it was to be seen only during the course of inquiry whether there was any composite negligence or not. It is possible, argued the learned counsel, that the accident took place solely on account of negligence of the TSR driver. The learned counsel for the Appellant relied on National Insurance Co. Ltd. v. Sita Devi & Ors., C.M. (M) No.511/2008 decided on 17.08.2009 and IFFCO Tokio General Insurance Co. Ltd. v. Chitra & Ors., C.M. (M) No.987/2010 decided on 21.09.2010.

6. In Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd., (2010) 7 SCC 417 the Supreme Court held that the general rule with regard to impleadment of parties was that the plaintiff in a suit being dominus litis could chose the person against whom he would litigate. The plaintiff, it was held, could not be compelled to sue a person against whom he did not seek any relief. Further, it was observed that the general rule was subject to the provisions of Order I Rule 10(2) of the Code of Civil Procedure where a party was a necessary party to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The Supreme Court held that a necessary party was a person who ought to have been joined as

a party and in whose absence no effective order could be passed at all by the Court. In this case the Respondents do no seek any relief against Insured and the Insurer of the TSR, its driver being already dead. If the Respondents are unable to establish their case against the Appellants (Respondents in the claim petition filed before the Tribunal), they would suffer the consequences.

7. It is urged by the learned counsel for the Respondents that the TSR had to take a turn because of a cylinder blast at DND flyover and the traffic was diverted by the police. At this stage I need not go into these questions as it would be open to the Respondents to rely and prove whatever they want in the inquiry before the Tribunal. In view of the settled law in Mumbai International Airport Pvt. Ltd. (supra) the application under Order I Rule 10 CPC was rightly dismissed by the Tribunal.

8. The impugned orders do not call for any interference. The appeals are devoid of any merit; they are accordingly dismissed. No costs.

(G.P. MITTAL) JUDGE DECEMBER 8, 2011 hs