Delhi High Court
J.L.Chawla & Anr. vs Surya Kanta & Ors. on 13 December, 2011
Author: G.P. Mittal
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th December, 2011
+ FAO 118/2001
J.L. CHAWLA & ANR. ..... Appellants
Through Mr. Jawahar Chawla, Advocate
versus
SURYA KANTA & ORS ..... Respondents
Through Mr. A.K. Soni Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G.P. MITTAL, J. (ORAL)
1. The Appellants impugn the award dated 04.10.1997 passed by
the Motor Accident Claims Tribunal (the Tribunal) whereby a
compensation of ` 59,750/- was granted in favour of
Respondent No.1 Smt. Surya Kanta and the subsequent
dismissal of the application under Order 9 Rule 13 CPC by the
Tribunal by order dated 11.09.2000.
2. Respondent No.1 Smt. Surya Kanta suffered grievous injuries in
an accident which took place on 22.08.1986 at 4:10 AM in front
of Gali No.14, Andha Mughal, Partap Nagar, Police Station
Subzi Mandi. A total compensation of ` 59,750/- along with
interest @ 14% was awarded by the Tribunal.
3. It is contended by the Appellant No.1 who has appeared in
person that the insurance cover note in respect of Maruti Car
No.DBC 1951 was placed on Tribunal's record. In spite of this,
the same was not taken note of by the Tribunal and the liability
was fastened on the Appellants to pay the amount of
compensation.
4. Mr. A.K. Soni learned counsel for Respondent No.2 Oriental
Insurance Company Limited contends that the cover note was
placed on record by the Petitioner only on 19.04.1995. Oriental
Insurance Company which was Respondent No.3 before the
Tribunal was proceeded ex-parte and therefore, this cover note
was not in the notice of the Insurance Company. It is urged that
the Appellants now having satisfied the award cannot claim
reimbursement of the amount paid in execution of the award.
5. It is urged that the Appellants had also filed a civil suit too
against the Insurance Company during the pendency of these
proceedings. As the same has been dismissed by the learned
Civil Judge, this Appeal is not maintainable. The Appeal is also
pending disposal against the dismissal of the civil suit.
6. A perusal of the Trial Court record reveals that the Oriental
Insurance Company Limited was impleaded as Respondent
No.3 since the very beginning. A written statement was filed by
Respondents No.1 and 2 (Appellants herein) where a plea was
taken that the car in question having been insured by
Respondent No.3 (before the Tribunal), the liability if any is of
the Insurance Company to pay the compensation.
7. It seems that the matter dragged on before the Tribunal and it
was only on 29.04.1994 that the cover note number 231780
along with 173 Cr.P.C. report of the criminal case and other
documents (obtained from the court of Metropolitan Magistrate)
were placed on record by the Respondent No.1 herein (who was
the claimant before the Tribunal).
8. During the pendency of this Appeal directions were issued to
Respondent No.2 Oriental Insurance Company to verify the
cover note placed on record before the Tribunal. The cover
note could not be verified on the ground that it was an old
record which has been weeded out.
9. It is important to note that Respondent No.2 Insurance
Company was a party before the Tribunal since the very
beginning. The cover note was placed on record by Respondent
No.1 in April, 1994 i.e. two years and six months before passing
of the award. It was the duty of the Insurance Company to have
verified the cover note during the inquiry before the Tribunal
and now that the record of the Insurance Company have been
weeded out, it cannot escape liability.
10. A civil suit for recovery of this very amount was dismissed by
the learned Civil Judge on the ground that there was a finding
by the Tribunal that there was no contract of insurance between
the Appellants and Oriental Insurance Company. In view of
this finding, it was held in that the suit was not maintainable. In
my view, this finding will not stand in the way of the Appellants
(owner of the offending vehicle) to recover the amount from
Respondent No.2, if the vehicle was insured.
11. As per Section 149 of the Motor Vehicles Act, 1988 an Insurer
is liable to pay to the person entitled to the benefit of the decree
any sum not exceeding the sum insured payable thereunder, if a
certificate of insurance has been issued in favour of a person
under Section 149 (3) and a judgment or award is passed in
respect of any liability as is required to be covered by a policy
under Section 147 (1) (b) of the Act. Sub-section (2) of Section
149 is in the shape of a proviso to Section 149 inasmuch as the
Insurer would be liable only if the insurance company is
impleaded in the proceedings in which the judgment or award is
given.
12. Since the Insurance Company has failed to show that the cover
note was not genuine it shall have to be assumed that the
vehicle number DBC 1951 was insured with Respondent No.2
on the date of the accident. It is also note worthy that the
accident took place in the first year of the purchase of the
vehicle i.e. Maruti Car No. DBC 1951.
13. During the execution proceedings recovery of ` 1,31,000/-
along with interest was sought as the claim pertains to the year
1986. A sum of ` 90,000/- was paid in distress by the
Appellants. The Appellants themselves were also to be blamed
for the latches & delay as they preferred not to disclose the
particulars of the insurance in the written statement filed by
them. In the circumstances, the Appellants would have a right
of recovery of ` 90,000/- only.
14. Respondent No.2 Oriental Insurance Company Limited is
directed to pay the amount to Appellant No.2 who is owner of
the vehicle within a period of six weeks failing which the
Appellants would be entitled to interest @ 7.5% per annum
from the date of payment of this amount i.e. 14.11.2003 till the
date of payment.
15. The Appeal is allowed in above terms.
16. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 13, 2011
vk/hs
