Jindal Infrastructure Pvt Ltd. vs Oriental Insurance Company
2014 Latest Caselaw 4694 Del

$~A-5
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision: September 22, 2014

+     CM(M) 1378/2012
,
      JINDAL INFRASTRUCTURE PVT LTD. ..... Petitioner
                    Through Mr.K.R.Pamei, Advocate.

                         versus

      ORIENTAL INSURANCE COMPANY
      LTD. & ORS.                     ..... Respondents
                   Through Mr.Pradeep Gaur, Advocate for R-1.
                           Mr.M.K.Sharma, Advocate for R-3 &
                           4.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. The present petition is filed by the petitioner seeking to impugn the order dated 26.09.2012 by which the application of the petitioner under Order IX Rule 13 CPC for setting aside the ex parte award dated 18.04.2011 was dismissed.

2. The brief facts are that on 12.01.2009 the deceased Vijay Kumar Yadav was going on his bicycle to his work place. At Wazirabad Road, Delhi he was hit by a vehicle said to be driven rashly and negligently by respondent No.2.

3. Before the Tribunal the petitioner who is the owner of the said offending vehicle and the driver/respondent No.2 herein filed a joint written statement. In the written statement it was claimed that the vehicle was insured with respondent No.1/Insurance Company and therefore, if there is

any liability arising out of the accident it would be payable by respondent No.1/Insurance Company.

4. Respondent No.1, the Insurance Company had denied its liability stating that the Insurance Policy in question did not cover the accident and that the insurance related only to physical loss or damage to the transit mixer due to fire and allied perils. It is urged that the policy did not cover any liability on account of use of the vehicle as motor vehicle. Regarding the third party risk, it was urged that it was limited to any liability arising out of use of the concrete pump.

5. After having filed the written statement of 21.10.2009, nobody appeared for the petitioner and respondent No.2 with effect from 24.11.2009. On 26.04.2010 petitioner and respondent No.2 were proceeded ex pate and on 18.04.2011 an ex parte award was passed in favour of the claimants/respondents No.3 to 7. Earlier before passing of the Award on the statement of counsel for respondents No.3 to 7, respondent No1/Insurance Company was deleted from the array of parties. Hence, the Award was passed in favour of respondents No.3 to 7 and against the petitioner and respondent No.2. A total compensation of Rs.10,14,220/- was awarded including a sum of Rs.8,46,720/- as loss of dependency. The same was calculated based on minimum wages where were taken as Rs.3,683/- per month.

6. After the ex parte award, the petitioner filed an application under Order IX Rule 13 CPC which is dated 02.02.2012. The same was dismissed by the Tribunal vide impugned order dated 26.09.2012.

7. The Tribunal noted that in the application the petitioner are blaming their advocate Sh.C.P.Dubey who was engaged to appear on behalf of the petitioner. It is urged that the said Advocate had stopped appearing on his

own as a result of which the petitioner were proceeded ex parte. It is further urged that respondent No.1/Insurance Company has misrepresented the facts and has manipulated the process of court so as to achieve its deletion from the array of parties.

8. The Tribunal however noted that the Tribunal had earlier passed an ex parte interim Award on 22.01.2010. The petitioner was proceeded ex parte on 26.04.2010. As the petitioner did not satisfy the interim award, an execution was filed by the claimants to execute the interim award. Notice was issued in the execution petition to the petitioner which was duly received by them on 07.07.2010. On 08.07.2010 the execution was listed before the Tribunal when Sh.D.N.Pandey counsel for the judgment debtor appeared and filed his memo of appearance. He also sought four weeks time for compliance of the interim award. The matter was fixed by the executing court on 12.08.2010. As none appeared on 12.08.2010 for the petitioner, a recovery certificate was issued.

9. Based on the above facts, the Tribunal concluded that the petitioner has been careless and had not bothered to take steps to pursue the matter. The Tribunal concluded that unnecessarily the advocate was being blamed. According to the Tribunal held that no grounds were made out for setting aside the ex parte award.

10. Despite coming to a conclusion on the same, the Tribunal has gone on merits and has considered the claim of the petitioner on merits. After having gone into the relevant clause of the insurance policy, the Tribunal came to a conclusion that respondent No.1/Insurance Company was not liable under the Insurance Policy and dismissed the application of the petitioner.

11. In my view the fact is that even after the Tribunal had proceeded ex parte against the petitioner on 26.04.2010, the petitioner was served with a

notice of execution petition for the interim award on 07.07.2010 and, counsel for the petitioner appeared before the executing court on 08.07.2010. Despite the same the petitioner have not taken steps to try and pursue the matter. It is obvious that there are needlessly trying to lay blame on their counsel. They have been very casual in following up the matter.

12. In fact a question was posed by the court to the learned counsel appearing for the petitioner. It was suggested that as it is a limited company, the fees of the counsel would have been paid by cheque and whether the petitioner has placed on record the details of payment of professional fees made to the advocate engaged before the Tribunal. The answer of the counsel for the petitioner was in the negative.

13. Clearly the Tribunal has rightly declined to set aside the ex parte award.

14. Coming to the merits of the case, the vehicle in question was a transit mixer. The photocopy of the insurance policy issued by respondent No.1 has been placed on record. The relevant clause of the insurance policy reads as follows:-

         Cover Name        Desc of Peril    Sum       Premium
                                            Insured
         Fire and Allied FIRE    &   ALLIED 22,50,000 4,500.00
         Perils          PERILS, ACT OF GOD
                         BURG,
                         OVERTURNING,
                         BREAK DOWN OF
                         TRANSIT MIXER TO
                         HR-38E-2389
         LIABILITY   TO                     5,00,000 1,000.00
         THIRD    PARTY
         ARISING OUT OF
         USE         OF
         CONCRETE
         PUMP

15. A perusal of the above policy shows that only two losses are covered

i.e. (a) fire allied perils due to burning, overturning or breakdown of the transit mixer and (b) liability to third party arising out of use of concrete pump. Hence, the liability of a third party is only for any liability arising out of the use of the concrete pump. There is no coverage pertaining to use of transit mixer on the road or for any liability arising due to a third party on account of the transit mixer/accident cause by the transit mixer. Given the nature of the policy the conclusion of the Tribunal that even otherwise respondent No.1/Insurance Company cannot be held liable cannot be faulted with. There is no error in the order passed by the Tribunal.

16. The present petition being without any merit is accordingly dismissed.

17. As per the interim orders of this court dated 19.12.2012 it was noted that a sum of Rs.6,91,615/- has been deposited by the petitioner before the UCO Bank Karkardooma Court Branch. The petitioner had been directed to deposit the balance amount of Rs.5,00,000/- with UCO Bank, Delhi High Court Branch. It was directed to be kept in a fixed deposit and the execution of the award remained stayed.

18. Let the amount deposited in UCO Bank, Delhi High Court Branch or UCO Bank Karkardooma Court Branch, if still kept by the Karkardooma Court be released to the claimant along with accumulated interest. The stay order stands vacated.

JAYANT NATH, J SEPTEMBER 22, 2014/rb