Oriental Insurance Co. Ltd. vs Chaman & Ors
2016 Latest Caselaw 528 Del

$~17
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                               Date of Decision: 22nd January, 2016

+      MAC.APP. 625/2010 & CM No. 16915/2010

       ORIENTAL INSURANCE CO. LTD.           ..... Appellant
                    Through: Mr. Ram N. Sharma, Adv.

                         Versus

       CHAMAN & ORS
                                                       ..... Respondents
                         Through:     Mr. M.Z. Khan for Mr. Badri
                                      Dass, Advs. for R-1 to 4.
                                      Mr. Siddhanth Jaiswal, Adv. for
                                      R-9.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                         JUDGMENT

R.K.GAUBA, J (ORAL):

1. The casual and callous manner in which the proceedings were conducted before the Motor Accident Claims Tribunal ("the tribunal") in the case at hand is indeed a cause for concern. The Oriental Insurance Company Ltd. (the third respondent before the tribunal) in the accident claim case initially presented on 31st May, 2006 by the first four respondents herein (registered as petition No. 682/2006 later re- registered as petition No. 118/2010) is in appeal challenging the impugned judgment passed on 5th July, 2010 granting compensation in favour of the claimants directing it to pay the same without considering its contention that there was contributory negligence on the part of the other vehicle involved in the accident, and, thus, liability should have

been apportioned against the other tort-feasor, the owner of the said other vehicle due to vicarious liability and against the insurer of the said other vehicle (the ninth respondent herein).

2. The claim petition had been presented seeking compensation under Section 166 read with Section 140 of Motor Vehicles Act, 1988 ("the MV Act") on account of death of Sunder Pal @ Sunder Lal in a motor vehicular accident that occurred on 8.10.2005 involving Tata Sumo car bearing No. HR 63 6854. ("the car") and ambulance bearing No. UP 81N 9900 ("the ambulance"). The appellant herein is the insurer of the car whilst the ninth respondent is the insurer of the ambulance. The drivers and owners of both the vehicles were also impleaded. The insurance company of the car, inter alia, adopted the plea of the owner and driver thereof that there was contributory negligence on the part of the driver of the other vehicle.

3. It appears on account of injuries suffered by another person, a separate claim petition had been filed respecting the same accident against the same set of parties. In the said proceedings, the contention of contributory negligence was upheld by the tribunal, apportioning the liability in the ratio of 50:50 amongst the two insurance companies.

4. In the claim petition from which the present appeal arises, an order was passed by the tribunal on 3rd December, 2008 granting compensation in the form of monthly payments. This was challenged by MAC Appeal No. 62/2009 by the appellant insurance company. The said appeal was allowed by this court by judgment dated 13th May, 2010 holding that the direction of monthly instalments was not proper. The matter was remanded to the tribunal for appropriate further proceedings.

5. A perusal of the record of the tribunal shows that after remand no notice was issued to the parties, other than the claimants and the appellant insurance company. Thus, the ninth respondent, against whom apportionment of liability is sought to be eventually fastened, was not in the fray before the tribunal when the impugned judgment dated 5 th July, 2010 was passed. This is clear even from the cause title mentioned by the tribunal on the first leaf of the impugned judgment wherein the array of parties only upto fourth respondent is noted. As a result, the proceedings before the tribunal have again been rendered vitiated.

6. Consequently, the appeal is allowed. The impugned judgment and award is set aside. The matter is remanded to the tribunal for further proceedings in accordance with law. It shall be the responsibility of the claimants, who are present in the court through their counsel, to secure the presence of other parties by appropriate steps.

7. The parties who were duly served in this appeal shall appear before the tribunal for further proceedings on 23rd March, 2016.

8. In terms of the order dated 20th September, 2010, the compensation awarded by impugned judgment dated 5 th July, 2010, was deposited in the Court and out of the said deposit, 50 % has already been released in favour of the claimants. Given the fact that it is a case for compensation on account of death, it shall not be proper to ask the parties to be restored to their respective positions, prior to the passing of the said award. The amount as already released may be presently retained by the claimants for their use, though it shall be subject to suitable adjustment in light of the judgment to be passed afresh by the

tribunal. The balance shall be kept by the Registrar General of this Court in an interest bearing fixed deposit account for a period of one year, to be renewed from time to time, to be dealt with in terms of the award to be passed on the conclusion of the proceedings remitted to the tribunal, of course, subject to orders in appeal, if any.

9. The statutory deposit, if made, may be released.

10. The tribunal's record shall be returned with copy of this judgment. It is directed to conclude the proceedings expeditiously, preferably within six months of the date of appearance indicated above.

R.K. GAUBA (JUDGE) JANUARY 22, 2016 nk