Dtc vs Pawan Kumar & Ors
2012 Latest Caselaw 1236 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 23rd February, 2012
+       MAC.APP. 882/2011

        DTC                                   ..... Appellant
                              Through:   Mr.Ravinder Narayan,
                                         Advocate
                     versus

        PAWAN KUMAR & ORS                         ..... Respondents
                   Through:              Mr.Tarkeshwar Nath and
                                         Mr.Saurabh Kumar Tuteja,
                                         Advocates for R-3.
        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                              JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant (DTC) impugns a judgment dated 12.01.2010 passed by the Motor Accident Claims Tribunal whereby the petition for recovery of damages to the tune of Rs.52,730/- was dismissed.

2. The Appellant's grievance is that initially the petition was allowed by an order dated 22.09.2004; subsequently an application Under Order 9 Rule 13 CPC was moved by the Respondent No.3 and the ex parte order was set aside. It is argued that the defence of the Respondent No.3 was struck out, the evidence produced by the Appellant was already on record and that ought to have been considered by the Claims Tribunal

for passing the impugned judgment.

3. Along with the Appeal an application for condonation of delay of 44 days (C.M.No.18226/2011) and another application for condonation of delay of 395 days in re-filing the Appeal (C.M.No.18227/2011) have been filed.

4. A perusal of the record shows that the Respondent No.2 who is the owner of the offending bus, filed the written statement after the ex parte judgment dated 22.09.2004 was set aside. It is true that the defence of Respondent No.3 was struck off but since the Respondent No.2 was contesting the claim petition, it was obligatory on the part of the Appellant to adduce evidence after Respondent No.2 had put in appearance. Since no evidence was adduced, the Claims Tribunal could not look into the evidence which was produced before the presumed service of the Respondent No.2 as liability of the Insurance Company was only to indemnify the Respondent No.2 the owner of the bus, who was alleged to have caused the damage to the bus shelter.

5. There is no merit in the Appeal; consequently the Appeal and the applications are dismissed.

(G.P. MITTAL) JUDGE FEBRUARY 23, 2012 mr