Gurmesh Singh vs Lata Gupta And Ors.
2011 Latest Caselaw 3509 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+     MAC. APP. 351/2009 and CM No.10055/2009


GURMESH SINGH                                        ..... Appellant
                              Through:   Mr. Rajat Aneja with
                                         Ms. Vidhi Jain, Advocates.

                     versus


LATA GUPTA AND ORS.                                    ..... Respondents
                 Through:                Mr. L.K. Tyagi, Advocate for
                                         the respondent No.6


%                             Date of Decision : July 25, 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?

                              JUDGMENT

: REVA KHETRAPAL, J.

1. This appeal under Section 173 of the Motor Vehicles Act, 1988

is directed against the ex parte award dated 06.02.2008 passed by the

Motor Accidents Claims Tribunal, Rohini Courts, Delhi, whereby

compensation in the sum of ` 15,36,754/- was awarded to the

respondents No.1 to 4 along with interest thereon and the order dated

02.07.2009 passed by the said Tribunal whereby the application filed

by the appellant under Order IX Rule 13 of the Code of Civil

Procedure for setting aside the said ex parte award was dismissed.

2. The facts in a nutshell are that on 01.01.2006, one Jitender

Gupta met with a road accident sustaining grievous injuries, to which

he succumbed on 05.01.2006. The respondents No.1 to 4, being his

legal heirs, filed a Claim Petition under Section 166 read with Section

140 of the Motor Vehicles Act, 1988 for grant of compensation.

Pursuant to the filing of the said Claim Petition, notices were directed

to be issued to the driver, the owner and the Insurance Company of

the alleged offending vehicle. The Insurance Company, namely, M/s.

National Insurance Co. Ltd., which is arrayed as the respondent No.6

in the present appeal, filed a written statement denying its liability to

pay compensation to the claimants. In the said written statement, a

number of preliminary objections and pleas in defence were raised

including inter-alia a vague plea that in the absence of any

information from the insured and in view of the non-supply of driving

licence by the respondents, the Claim Petition filed by the claimants

was liable to be dismissed.

3. It is the case of the appellant, who is the owner of the vehicle

involved in the accident that on receipt of the notice of the filing of

the Claim Petition he met the officials of the Insurance Company who

assured him that he would not be required to bother about the Claim

Petition filed by the claimants as his vehicle was fully insured. In

these circumstances, although he (the appellant) was served in the

said Claim Petition and appeared before the learned Tribunal on

22.02.2006, he did not appear thereafter in view of the specific

assurances given to him on behalf of the Insurance Company. The

appellant/owner as well as the driver were accordingly proceeded ex

parte by the learned Tribunal on 26.04.06, whereafter the Tribunal

proceeded to record the evidence of the claimants and the evidence

adduced by the Insurance Company.

4. After the conclusion of the evidence of the parties, the learned

Tribunal passed a detailed award on 06.02.2008, wherein it gave a

finding to the effect that the driving licence of the driver, namely, the

respondent No.5 herein, was fake and thus, the respondent No.6-

Insurance Company would pay the award amount to the claimants in

the first instance but would be entitled to recover the same from the

owner/appellant herein. The appellant contends that it was only when

the officials of the office of the concerned Collectorate came to his

premises on 5.11.08 for recovery of the awarded amount that he

became aware of the fact that he had been saddled with the liability to

reimburse the Insurance Company for the compensation paid by it to

the legal representatives of the deceased. Accordingly, he

immediately proceeded to engage a counsel, who filed an appeal

under Section 173 of the Motor Vehicles Act, 1988 on 28.11.2008,

being MAC. APP. No.611/2008 titled "Gurmesh Singh vs. Lata

Gupta and Ors.", which came up for hearing before this Court on

09.02.2009, and after hearing brief submissions on behalf of the

appellant, this Court was of the view that the appellant should first

impugn the ex parte award dated 06.02.2008 before the learned

Tribunal by moving an application under Order IX Rule 13 CPC.

Liberty was granted to the appellant to file such an application before

the learned Tribunal and with these observations the appeal was

dismissed as withdrawn. Resultantly, the appellant filed an

application under Order IX Rule 13 CPC before the learned Motor

Accidents Claims Tribunal, Rohini Courts, Delhi, which, however,

was dismissed by the Claims Tribunal by its impugned order dated

02.07.2009 primarily on the ground that the appellant had not been

vigilant in looking after his interest and the ground taken by the

appellant was nothing but a lame excuse put forward by him to avoid

the liability of payment of the awarded amount. Aggrieved by the

aforesaid, the present appeal has been preferred for setting aside the

ex parte award dated 06.02.2008 and the order dated 02.07.2009

dismissing the application of the appellant under Order IX Rule 13

CPC.

5. Mr. Rajat Aneja, the learned counsel for the appellant has

contended that the learned Tribunal while passing the impugned

orders did not take into consideration the fact that the appellant, being

the owner of the vehicle, was under a bonafide belief that since his

vehicle was insured with the respondent No.6 herein, the principal

liability to pay compensation would be of the Insurance Company.

The appellant thus did not appear after 22.02.2006, when he had

entered appearance only to be re-assured by Shri Naveen Gupta, the

counsel for the Insurance Company, who had informed him that the

only issue which was required to be considered by the Tribunal was

whether there was a valid insurance policy. Mr. Aneja further

contended that the circumstances thus warranted the setting aside of

the ex parte award so as to afford an opportunity to the appellant to

adduce evidence to the effect that he was not aware that the licence of

the driver engaged by him was a fake one and that he (the appellant)

had engaged the driver in good faith, after examining the driving

licence of the driver which appeared to be genuine on the face of it

and after ensuring that the said driver was competent to drive the

vehicle. Mr. Aneja also contended that the denial by the learned

Tribunal to afford an opportunity to the appellant to defend his case

had resulted in serious civil consequences to the appellant, who had

been fastened with a huge liability of more than ` 18 lakhs. He stated

that the appellant is a Government servant having retired as a

Gazetted Officer from the National Technical Research Organisation

on 30.04.2009 and has no means to pay such a huge amount at the fag

end of his life. He submitted that there was no wilful breach of the

terms of the insurance policy on the part of the appellant, and as such

the insurer could not seek to recover the award amount from the

insured.

6. Reliance was placed by the learned counsel for the appellant on

a large number of decisions, including those rendered by the Supreme

Court in the following cases:

(i) United India Insurance Co. Ltd. vs. Lehru and Ors.,

(2003) 3 SCC 338;

(ii) Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan

and Ors., (1987) 2 SCC 654;

(iii) Sohan Lal Passi vs. P. Sesh Reddy and Ors., (1996) 5 SCC

21;

(iv) New India Insurance Co., Shimla vs. Kamla and Ors. Etc.

Etc., (2001) 4 SCC 342;

(v) National Insurance Co. Ltd. vs. Swaran Singh and Ors.,

(2004) 3 SCC 297; and

(vi) Premkumari and Ors. vs. Prahlad Dev and Ors., AIR 2008

SC 1073.

7. Mr. L.K. Tyagi, the learned counsel for the respondent No.6-

Insurance Company, on the other hand, sought to support the

impugned orders dismissing the application of the appellant under

Order IX Rule 13 CPC and the ex parte award holding that the

appellant-owner had failed to exercise reasonable care and diligence

and was, therefore, responsible for the payment of compensation to

the claimants. He relied upon the unreported judgment of this Court

in FAO 589/2002 titled "Subhash Jindal vs. Asha Kumar and Ors."

decided on October 21, 2005.

8. Having considered the rival contentions of the parties and gone

through the precedents cited at the bar, I am of the view that the

learned Tribunal ought to have afforded at least one opportunity to the

appellant herein to adduce his evidence, more so, as the appellant had

filed an appeal against the ex parte judgment dated 06.02.2008, being

MAC. APP. No.611/2008, which was allowed to be withdrawn by

this Court with liberty to the appellant to file an application under

Order IX Rule 13 of the Code of Civil Procedure within 30 days of

the date of withdrawal. I also find from the record that though the

respondent No.6-Insurance Company in its written statement filed

before the Claims Tribunal categorically stated that it did not have the

driving licence of the driver, yet it proceeded thereafter to adduce

evidence to the effect that the driving licence was a fake one even

without issuance of notice under Order XII Rule 8 CPC to the

appellant-owner and the respondent No.5-driver to produce the said

driving licence.

9. In view of the aforesaid, the order dated 2nd July, 2009

dismissing the application of the appellant under Order IX Rule 13

CPC is set aside subject to payment of ` 10,000/- as costs. The

necessary corollary is that the ex parte award dated 06.02.2008 is also

set aside with the direction that the Tribunal, at its discretion, shall

award reasonable opportunity to the appellant to adduce his evidence.

If, however, the appellant refuses to avail of the said opportunity, the

Tribunal shall proceed to dispose of the matter in accordance with

law.

10. The appeal is allowed in the above terms. CM No.10055/2009

also stands disposed of. The records be sent back to the Tribunal

forthwith alongwith a copy of this order. The parties are directed to

appear before the learned Tribunal on 23.08.2011 for fixing of a date

for evidence and directions with regard to the summoning of

witnesses.

REVA KHETRAPAL (JUDGE) July 25, 2011 km