Neeru Sachdeva vs Ramesh Kumar & Ors.
2012 Latest Caselaw 988 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Reserved on: 9th February, 2012
                                  Pronounced on: 13th February, 2012
+       MAC.APP. 6/2005

        NEERU SACHDEVA                   ..... Appellant
                Through:        Mr. Pramod Ahuja, Advocate

                    versus

        RAMESH KUMAR & ORS.          .... Respondents
                Through: Mr.Pankaj Seth, Advocate for the
                          Respondent Insurance Company
        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                              JUDGMENT

G. P. MITTAL, J.

1. The Appellant Mrs. Neeru Sachdeva impugns the judgment dated 26.09.2002 passed by the Motor Accident Claims Tribunal whereby in a claim petition (Suit No.557/1996), a compensation of ` 5,83,548/- along with interest @ 9% was awarded in favour of the Claimants (the Respondents No.2 to 8 herein). While directing the Insurance Company to satisfy the award, the Claims Tribunal granted recovery rights against the Appellant and the first Respondent (the Respondents No.1 & 2 before the Tribunal i.e. the owner and the driver of the offending vehicle).

2. Aggrieved by the award, the Respondents No.1 to 9 herein (the New India Insurance Company Ltd.) filed an Appeal being FAO No.686/2002 which came to be decided by this Court by an order dated 23.09.2003. This Court held as under:

"In the present case the respondent insured was contesting the proceedings before the Tribunal. Nowhere before the Tribunal, it was the case of the insured that he had checked the driving licence of the driver and had prima facie found the same as genuine. If such a plea was taken by the insured before the Tribunal a case might have been made out by the insured to avoid liability as in that case it may be argued that the insured had not breached the conditions of insurance. The insured having not taken this plea before the Tribunal, in my opinion, the judgment in „Lehra‟s case will not apply to the facts of the present case.

In this view of the matter, I direct the insured to pay the amount of compensation to the Insurance Company after the company has paid the same to the claimants and on the failure of the insured to pay the same, the Insurance Company will be at liberty to recover it from the insured. With these observations, the appeal stand disposed of."

3. The Appellant herein and the First Respondent preferred a Special Leave and Review Petition before the Hon‟ble Supreme Court and the same was dismissed by the Hon‟ble Supreme Court as can be gathered from the averments made in para 6 of the Appeal. Para 6 and 7 are extracted hereunder:

"6. Feeling aggrieved from the judgment dated 23.09.2003 of the learned Single Judge of this

Hon'ble Court the appellant and Respondent No.1 preferred Special Leave & Review Petition before the Hon'ble Supreme Court the same was dismissed but the Appellant and Respondent No.1 never exercised their right of filing of the Appeal before this Hon'ble High Court.

7. That if at all the payment is liable to be made to the claimants the same has to be paid by the Respondent No.9 Insurance Company and not to be recovered thereafter from the appellant and Respondent No.1."

4. Thus, it can be noticed that the present Appeal has been filed by the Appellant on the ground that he (the Appellant and the first Respondent) did not exercise the right of filing the Appeal before the High Court against the Claims Tribunal‟s judgment dated 26.09.2002. At the cost of repetition, I may say that the question of recovery rights against the Appellant and the First Respondent was the subject matter of the Appeal in FAO No.686/2002. The finding was against the Appellant as the Insurance Company was permitted to recover the compensation paid from the insured i.e. the Appellant herein. The Appellant unsuccessfully challenged the order dated 23.09.2003 by way of an SLP. Since the Appellant was a party to FAO No.686/2002 and had also availed his remedy by filing an SLP, the present Appeal is not maintainable being barred by the principles of Res-Judicata.

5. The Appeal is dismissed.

6. The stay on the recovery proceedings against the Appellant granted by an order dated 19.04.2005 stands vacated.

7. Pending applications stand disposed of.

(G.P. MITTAL) JUDGE FEBRUARY 13 , 2012 pst