Oriental Insurance Co.Ltd. vs Mukesh Kumar & Ors.
2011 Latest Caselaw 384 Del

                                UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    MAC. APP. 661/2010


ORIENTAL INSURANCE CO LTD                 ..... Appellant
                    Through: Mr. Pradeep Gaur and
                             Mr. Amit Gaur, Advocates
             versus

MUKESH KUMAR & ORS                                    ..... Respondents
                Through:              None


%                         Date of Decision : January 21, 2011


CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                          J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

CM No.18022/2010

Exemption granted subject to all just exceptions.

The application stands disposed of.

CM No.18021/2010

This is an application praying for condonation of 37 days'

delay in filing the appeal. In view of the ground given in the

application, the delay is condoned.

The application stands disposed of.

MAC.Appeal. No.661/2010 and CM Nos. 18019/2010 (stay) and 18020/2010 (under Order XLI Rule 27 CPC)

This appeal has been preferred by the appellant - Insurance

Company against the judgment dated 20th May, 2010 passed by the

Motor Accidents Claims Tribunal, Patiala House Courts, New Delhi

awarding a sum of ` 26,000/- in favour of the respondent No.1 as

compensation for the injury sustained by the respondent No.1 in a

road accident, which allegedly took place on account of the rash and

negligent driving of the respondent No.2. The vehicle was owned by

the respondent No.3 and the appellant - Insurance Company was

stated to be the owner thereof.

2. Notice of the claim petition instituted by the respondent No.1

was duly served upon the appellant - Insurance Company and the

respondents No.2 and 3 viz., the driver and the owner of the alleged

offending vehicle. The respondents No.2 and 3 did not choose to

appear and were accordingly proceeded ex parte. The appellant -

Insurance Company, though it filed written statement denying the

insurance of the offending vehicle and stating that the cover note

bearing No.008400 allegedly issued in the name of the respondent

No.3 (the insured) was a fake cover note, failed to adduce any

evidence in respect thereof.

3. It is the case of the appellant - Insurance Company that it was

at the instance of the learned Tribunal that the counsel for the

Insurance Company stopped appearing and also did not lead any

evidence to prove that the insurance cover note as well as the driving

licence were fake. It is further the case of the appellant - Insurance

Company that the investigator of the Insurance Company vide its

letter dated 3rd June, 2008 obtained verification report from the

concerned licencing authority viz., RTA, Karnal, wherein the said

authority has clearly mentioned that DL No.60510 was never issued

in anyone's name as per their records. Thus, the Tribunal erred in not

granting recovery rights to the appellant against the driver and owner

of the offending vehicle.

4. The appellant - Insurance Company has along with the appeal

filed an application under Order XLI Rule 27 read with Section 151

CPC for permission to lead additional evidence. Paragraph 3 of the

aforesaid application, being relevant for the purpose of deciding the

present appeal, is reproduced hereunder:

"3. That the insurance company could not examine the witness to prove that the insurance cover note filed on record and the driving licence were fake ones. The said evidence could not be recorded in the light of the facts that the defending counsel for the appellant company was given the impression by the Tribunal that since there is no insurance coverage and even the driver and owner are ex-parte therefore, the order would be passed accordingly not holding the insurance company liable. The said facts were informed to the appellant company by their defending counsel vide her letter dated 13.7.2010."

5. The aforesaid application, being CM No.18020/2010, is neither

supported by the affidavit of the defending counsel nor a copy of the

letter dated 13.07.2010 allegedly written by her to the Insurance

Company has been enclosed with the application. Apart from this, no

plausible reason has been given in the application for grant of

permission to lead additional evidence. There is not even a plea in

the application to the effect that the Tribunal did not afford an

opportunity to the appellant to adduce additional evidence. All that is

stated in the application is that the defending counsel for the appellant

- Insurance Company was laboring under the impression given by the

Tribunal that since there was no insurance cover, and the driver and

owner were ex parte, the order would be passed accordingly "not

holding the insurance company liable". Such a ground, in my view,

is wholly devoid of substance. The appellant, thus, failed to lead

evidence despite opportunity granted to it by the Tribunal and cannot

now be allowed to turn round and allege that the Tribunal gave the

impression to its defending counsel that no liability would be fastened

on it. In such circumstances, no permission can be granted to the

appellant to adduce additional evidence. Even otherwise, the

Tribunal has awarded only a meagre sum of ` 26,000/- to the

respondent No.1 and that too without interest.

6. For the aforesaid reasons, the application for adducing

additional evidence is dismissed. Resultantly, the appeal is also liable

to be dismissed and is accordingly dismissed. CM No. 18019/2010

also stands disposed of.

REVA KHETRAPAL (JUDGE) January 21, 2011 km