Delhi High Court
United India Insurance Co.Ltd. vs Kiran Kapoor & Ors. on 15 March, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15th March, 2016
+ MAC.APP. 337/2004
UNITED INDIA INSURANCE CO.LTD.
..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
KIRAN KAPOOR & ORS.
..... Respondent
Through: Ms. Arpan Wadhwan, Adv. for R-5
& 6 (amicus curiae)
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Inder Kapoor died as a result of injuries suffered in a motor vehicular
accident that occurred at about 6.40 PM on 08.07.2000 near Power House
Chowk in R U Block, Pitampura, Delhi involving bus bearing registration
No.DL 1PA 1810 (the offending vehicle). His widow and children
(dependents) preferred a claim petition under Sections 166 and 140 of
Motor Vehicles Act, 1988 (MV Act) before the motor accident claims
tribunal (tribunal) which registered it as suit No.231/2003. In the claim
petition, besides the driver Manoj Kumar (driver) and Taranjit Singh (the
registered owner), the appellant was impleaded as the insurance company
(insurer) which had issued third party insurance policy in respect of the
offending vehicle for the period in question. After inquiry, the tribunal, by
judgment dated 01.05.2004, granted compensation in the sum of
₹8,07,000/- with interest holding all the said three respondents (including
the appellant herein) to be jointly and severally liable, calling upon the
insurer to pay.
2. In the course of the inquiry before the tribunal, the appellant (insurer)
had taken the plea that the offending vehicle had been initially insured with
it on 06.01.2000 in favour of Raj Kumar, 272, Sunehri Bagh Apartment,
Sector 13, the then registered owner of the offending vehicle, in which
respect cover note No.53669 was issued on 07.01.2000. It was stated that
vehicle was later transferred in the name of Taranjit Singh (sixth
respondent herein) and upon a request made by him, the insurance policy
was transferred in his name on 01.03.2000. It was, however, submitted that
at the time of taking out the insurance policy, the previous registered owner
had tendered the premium by way of cheque which was returned
dishonoured by the bank on it being presented. The insurer claimed that
upon the cheque returning unpaid, it had sent an intimation to the then
owner Raj Kumar on 13.03.2000 and later also to the subsequent owner but
there was no response. It was further submitted that in spite of notices
under Order 12 Rule 8 of Code of Civil Procedure, 1908 (CPC) issued to
the driver (fifth respondent herein) and to the transferee of the offending
vehicle (sixth respondent herein) there was no response. The insurance
company thus pleaded before the tribunal that premium not having been
paid under the insurance policy/cover note, it was not liable to indemnify.
This plea was rejected by the tribunal holding that the insurance policy was
still operational, had not been cancelled and, thus, the rights of the third
parties could not be defeated.
3. Feeling aggrieved with the above conclusion of the claim case and
the direction to indemnify, the insurance company came up in appeal
insisting that the tribunal should have at least considered the grant of
recovery rights against the registered owner and the driver of the offending
vehicle.
4. The appeal was entertained by order dated 06.08.2004 for
consideration of the restricted question as to whether the insurance
company deserved to be granted the right to recover the amount paid in
terms of impugned judgment/award from the owner of the vehicle.
5. In spite of notices, neither the fifth respondent (driver) nor the sixth
respondent (registered owner) of the offending vehicle have chosen to
appear. Against this backdrop by order dated 10.09.2013, the learned
single judge, then in seisin of the matter, considered it necessary to appoint
Ms. Punya Rekha Angara, Advocate to assist the Court on behalf of fifth
and sixth respondents. The amicus curiae submitted a report which was
taken on record on 23.10.2013 according to which, after being thus
appointed by the Court, she had sent communications to the fifth and sixth
respondents by speed post on 10.10.2013. But the sixth respondent in spite
of due delivery, had failed to make contact with her to brief or apprise her
of his version. The notice sent by the amicus curiae to fifth respondent,
however, returned unserved with the remarks "insufficient address". The
fact remains that the sixth respondent (the registered owner of the offending
vehicle) has continued to show disinterest even at the stage of the hearing
of the appeal all these years.
6. Ms. Punya Rekha Angara, Advocate appointed as amicus curiae by
order dated 10.09.2013 later stopped appearing as Advocate. This fact
having been brought to the notice of the Court, by order dated 22.04.2015
Ms. Arpan Wadhwan, Advocate was appointed in her place as amicus
curiae to assist the court on behalf of the fifth and sixth respondents.
7. Having heard the learned counsel for the appellant and the learned
amicus curiae for the fifth and sixth respondents, and having gone through
the tribunal's record, this Court finds the grievances of the insurance
company (appellant) to be well founded.
8. Whilst it does appear that the insurance company had been negligent
in transferring the insurance policy in the name of the sixth respondent on
01.03.2000, the fact remains that it had not received any premium against
the cover note that had been taken out on 6/7.01.2000 by the previous
owner Raj Kumar in respect of the offending vehicle. From the evidence
adduced, as duly noted by the tribunal in the impugned judgment, it is clear
that the premium was tendered by a cheque which returned dishonoured
with remarks "insufficient funds". There is no claim either by the sixth
respondent on his own behalf or on the basis of information gathered from
Raj Kumar (previous owner) that the premium was paid and if so paid by
any other mode after the dishonour of the cheque. The sixth respondent
had due notice of the claim petition. He chose to suffer the proceedings ex-
parte. Had he joined the proceedings he would have availed of an
opportunity to contest the contention of the insurance company that no
premium had been paid against the insurance policy or cover note. In spite
of notice of the appeal, he has again chosen to stay away. In these
circumstances, an adverse inference can legitimately be drawn that he is not
in a position to refute the contention of the insurance company that no
premium had ever been paid against the insurance policy of which he could
seek to avail the benefit for being indemnified against the third party risk.
9. While there can be no quarrel with the proposition that in such fact
situation the rights of the third parties cannot be defeated, it cannot be said
that the insurance company can be burdened with the liability under
contract for which it has not received any consideration. The thrust of the
judgments in Oriental Insurance Co. v. Inderjit Kaur 1998 ACJ 123; New
India Assurance Company Ltd. v. Rula 2000 ACJ 630 and New India
Insurance Co. Ltd. v. Shamsed 2001 ACJ 585, which have been referred by
the tribunal in the impugned judgment is on protecting rights of the third
parties. While the tribunal took correct view by calling upon the insurance
company to pay the claim of the third parties, it fell into error by not
considering the request for recovery rights.
10. In above facts and circumstances the appeal is allowed. The
insurance company is granted right to recover the amount of compensation
with interest paid to the claimants in the case at hand from the fifth or sixth
respondents, who were held jointly and severally liable. The insurance
company will have the liberty to take out appropriate proceedings before
the tribunal for such purposes.
11. Statutory amount, if deposited, shall be refunded.
12. This Court records appreciation for the able assistance rendered by
the amicus curiae.
R.K. GAUBA
(JUDGE)
MARCH 15, 2016
VLD
