Delhi High Court
Oriental Insurance Co. Ltd. vs The New India Assurance Co Ltd & Ors on 25 May, 2016
$~13 & 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25.05.2016
+ MAC.APP. 814/2014 and CM No.14735/2014
M/S KATYAL TRANSPORTER & ANR ..... Appellants
Through: Mr. Arjun Gadhoke, Advocate
versus
THE NEW INDIA ASSURANCE CO LTD & ORS ..... Respondents
Through: Mr. J.P.N. Shahi, Advocate
+ MAC.APP. 815/2014 and CM No.14738/2014
M/S KATYAL TRANSPORT & ANR ..... Appellants
Through: Mr. Arjun Gadhoke, Advocate
versus
THE NEW INDIA ASSURANCE CO LTD & ORS ..... Respondents
Through: Mr. J.P.N. Shahi, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Bhola Prasad and Sri Pal were travelling in a truck bearing
registration no.DLL-8632 (truck) on 30.12.1990. The truck met with an
accident having struck against a tree resulting in both Bhola Prasad and Sri
Pal suffering injuries.
2. Two accident claim cases were filed, one on account of injuries
suffered by Bhola Prasad (MACP 180/2012) and, the other, on account of
injuries of Sri Pal (MACP 181/2012). Both the claim cases were clubbed
for inquiry and decided by a common exparte judgment dated 20.01.2001 by
the Motor Accident Claims Tribunal (tribunal) whereby Ran Bahadur
(driver) and Devender Mohan Katyal (owner) of the truck were held jointly
and severely liable. It may be mentioned here that in the said original claim
petitions, the insurance company was not shown in the array of parties
presumably because the claimants did not have the benefit of particulars of
any insurance policy.
3. Both the said driver and owner later moved an application under
Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC), which was
allowed and the said exparte judgment dated 20.01.2001 was set aside by
order dated 17.08.2012 thereby reviving the proceedings before the tribunal.
It is in the subsequent proceedings that the insurer was also impleaded as a
party respondent.
4. The tribunal held further inquiry on the conclusion of which the two
cases were decided afresh again by a common judgment dated 09.05.2014.
It was again held that the accident had occurred due to negligent driving of
the bus and thus holding the driver and owner jointly and severely liable to
pay the compensation. In both the cases, the tribunal awarded compensation
in the sum of `1,19,000/- for injuries suffered by Bhola Prasad and
`2,60,800/- for injuries suffered by Sri Pal which were ordered to be paid
with interest.
5. During the contest before the tribunal, the insurance company had
pleaded two defences; one, that the cover note relied upon was a fake
document and no premium had been received there against and, second, that
the truck was put to use and brought on the road without a valid permit.
After examining the evidence led, the tribunal held that the first contention
could not be accepted as the cover note was admitted by a witness (an
official of the insurance company) to have been issued after the payment of
premium had been received and no evidence had been mustered to refute the
same . The tribunal, however, found merit in the second contention and held
that inspite of notice, the owner of the offending vehicle had failed to
produce a valid permit and, on that basis, held it to be a case of breach of the
terms and conditions of the insurance policy. Though the insurer was
directed to satisfy the awards in both the cases, it was granted rights to
recover the amounts thus paid from the owner of the offending vehicle.
6. The owner is in appeal questioning the above mentioned directions
granting recovery rights in favour of the insurer in the two cases.
7. The learned counsel for the appellants argued that the insurance
company had not taken the defence of absence of permit and therefore, the
grant of recovery rights was improper. This argument cannot be accepted as
the tribunal's judgment shows that the insurance company had raised the
issue of breach of the terms and conditions of the insurance policy which
contention was duly considered and dwelt upon by the tribunal. It is
conceded at the bar by the counsel for the appellants that no valid permit
was produced during the inquiry before the tribunal and further that no valid
permit is even claimed in these appeals to have been held by the owner at
the relevant point of time, leave alone such document having been produced
for perusal or consideration of the court.
8. Since the appellant is unable to produce a valid permit in respect of
the offending vehicle even at this stage, the appeals are found to be
unmerited and therefore, dismissed.
9. Stay granted earlier in these appeals against enforcement of the
recovery rights is vacated. The insurance company is at liberty to recover
the amounts under the said recovery rights in both cases.
10. The statutory deposits, if made, shall be refunded in both the cases
only after confirming that the recovery rights have been satisfied.
11. The appeals and the pending applications are disposed of in above
terms.
(R.K. GAUBA)
JUDGE
MAY 25, 2016
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