United India Insurance Co. Ltd. vs Rekha Devi & Ors.
2015 Latest Caselaw 2134 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of decision: 12th March, 2015

+                       MAC.APP. 735/2007

        UNITED INDIA INSURANCE CO. LTD.       ..... Appellant
                      Through: Mr.A.K. De, Advocate with
                               Ms. Rubbeca Dias, Advocate
                               Versus
    REKHA DEVI & ORS.                ..... Respondents
                  Through: None
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

MAC.APP. 735/2007 & CM.APPL 17718/2007(stay) & CM.APPL
20219/2014(for deletion of respondent no.13)
1.      This appeal was preferred against the judgment/award dated

07.09.2007 of the MACT in Petition no.183/07(Old no.242/05). It is

inter alia the contention of the appellant in the memorandum of

appeal that though vide the impugned judgment/award, its liability for

the compensation awarded had been apportioned as 15% only of the

total compensation awarded, the remaining liability being of others,

nevertheless the claimants / respondents no.1 to 10 have been

permitted to recover the entire compensation amount of Rs.5,59,000/-

from any of the parties/persons who were held liable including the

appellant, with right to whichever party from whom the amount in




MAC. APP.735/2007                                  Page 1 of 8
 excess of its / his / her liability has been recovered, recover the excess

amount from the others held liable.


2.      Notice of the appeal was issued and subject to deposit of 15%

of the award amount with the Registrar General of this Court, the

operation of the impugned award was stayed.


3.      The appeal has remained pending for the last eight years for

service of the respondents. On 10.05.2011, it was reported by the

Registrar that service of all the other respondents, except respondent

no.13 Smt. Parminder Kaur, stood effected and that the appellant had

failed to take steps for service of respondent no.13 by publication

inspite of repeated opportunities. Accordingly the matter was put up

before the Court. However, when the matter came before the Court on

26.07.2011, on the statement of the counsel for the appellant that the

appellant will furnish fresh address of respondent no.13, the matter

was again relegated to the Registrar for service of respondent no.13 at

fresh address. The appellant, however failed to furnish any fresh

address of respondent no.13 and also did not effect publication.

Again, the matter was posted before the Court. Vide order dated

22.08.2014, a final opportunity was granted to the appellant to take



MAC. APP.735/2007                                     Page 2 of 8
 steps for completion of service on respondent no.13 subject to

payment of costs of Rs.10,000/-. However on 25.11.2014, on the

statement of the counsel for the appellant before the Registrar that he

intends to delete respondent no.13 from the array of respondents, the

appellant was given opportunity therefor. The counsel for the

appellant, on inquiry, states that the cost of Rs.10,000/- also has not

been paid. CM.APPL 20219/2014 has since been filed for deletion of

respondent no.13 from the array of respondents at the risk of the

appellant.


4.      Finding, that the appellant after procuring ex parte stay of the

award, nearly eight years ago, subject to deposit of 15% of the award

amount has been so delaying the matter, the counsel for the appellant

has been asked to address arguments on the merits of the appeal.

None appears for the respondents. A perusal of the earlier ordersheets

shows that in response to the notice of the appeal issued to the

remaining respondents who all are reported to be served, only the

counsels for respondent no.14 i.e. Ritco Transport Company had

appeared from time to time and that none of the other respondents

entered appearance at any point of time. Today, none appears on




MAC. APP.735/2007                                    Page 3 of 8
 behalf of respondent no.14 also.        The respondents, other than

respondent no.13, are thus proceeded against ex parte.


5.      The only ground on which the appeal was preferred being as

aforesaid, the counsel for the appellant has been heard thereon. He

has contended that the liability of the appellant in the total

compensation amount having been restricted to 15% of the awarded

amount, there was no justification for the Tribunal to entitle the

claimants to recover the entire compensation amount from

whichsoever judgment debtor. It is further contended that though the

appellant as an insurance company would be entitled in law to recover

the amount from the insured with whom it has a privity of contract but

would not be able to recover the monies in excess of its liability from

other judgment debtors who have been held liable for the

compensation.


6.      Attention of the counsel for the appellant has been invited to

National Insurance Co. Ltd. Vs. Kusum Rai (2006) 4 SCC 250 where

the Supreme Court had similarly directed the entire awarded amount

to be recovered from the insurance company with liberty to the

insurance company to recover the said amount from the insured.



MAC. APP.735/2007                                   Page 4 of 8
 7.      The counsel for the appellant however seeks to distinguish the

said judgment by contending that in that case the right of recovery of

the insurance company was from the insured and not from the

strangers as would be the case in the present facts.


8.      I am unable to see the difference. The Tribunal in the impugned

award / judgment has vested the judgment debtor/s including the

appellant from whom the awarded amount in excess of individual

liability is recovered with a right to recover the excess amount from

the other judgment debtors. The said judgment / award is binding on

all the judgment debtors. Even otherwise, for such a claim to be

made, no privity of contract is required. Such a right to recover the

excess amount recovered would accrue to the appellant even under the

law inasmuch as the liability of the appellant and other judgment

debtors, inspite of apportionment has been held to be joint and several

vis-a-vis the claimants. Reference in this regard may be made to

Section 43 of the Indian Contract Act, 1872.


9.      I may also note that a direction, making the awarded amount

recoverable from the Insurance Company beyond its liability and with

right to Insurance Company to recover the share from other judgment



MAC. APP.735/2007                                      Page 5 of 8
 debtors has been felt necessary with regard to the nature of the statute.

The said provisions of the Motor Vehicles Act, 1988 are intended to

provide immediate relief to the victims of a motor vehicle accident. It

is unfortunate that the instant appeal entailing this limited question has

remained pending for nearly eight years.


10.     I have enquired from the counsel for the appellant whether the

claimants have initiated any proceedings for execution of the

judgment / award beyond / in excess of 15% deposited in this Court.

It has further been enquired whether any other appeal has been

preferred against the impugned award / judgment. The answer to both

the queries is in the negative.


11.     The counsel for the appellant at this stage when this judgment is

being dictated states that he had no knowledge in this regard.


12.     There is another aspect. The appellant is now seeking to delete

respondent no.13 from the array of parties. It has been enquired from

the appellant whether respondent no.13 was a necessary party to the

appeal or not. The counsel for the appellant states that respondent

no.13 was a necessary party being the insured of the appellant. I may




MAC. APP.735/2007                                     Page 6 of 8
 however notice that in the impugned judgment / award it has been

specifically provided that the appellant having not proved any breach

of the terms and conditions of the insurance policy by the respondent

no.13, the recovery proceedings shall not be initiated against

respondent no.13. It has been further enquired from the counsel for

the appellant whether not this appeal itself would not be maintainable

upon the appellant deleting respondent no.13 who is stated to be a

necessary party. The counsel for the appellant states that the appeal

would become infructuous only to the extent of 15% which has been

awarded against the appellant.      However, that liability was never

disputed in the appeal. This appeal is liable to be dismissed on this

ground as well.


13.      The appeal is accordingly dismissed. Pending applications also

stand disposed of.


14.     The respondents having not contested the appeal, no costs.


15.     The amount deposited by the appellant in this Court with

interest accrued if any be released to the claimants in terms of the

award / judgment of the Tribunal.




MAC. APP.735/2007                                    Page 7 of 8
 16.     Statutory amount if any deposited by the appellant be refunded

to the appellant insurance company.




                                       RAJIV SAHAI ENDLAW, J.

MARCH 12, 2015 pst