Delhi High Court
National Insurance Co. vs Khatu Shyam Polyweavers Pvt. Ltd. ... on 31 May, 2016
$~R-125A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31.05.2016
+ MAC.APP. 67/2008
NATIONAL INSURANCE CO. ..... Appellant
Through Mr. Amit Gaur, Adv.
versus
KHATU SHYAM POLYWEAVERS PVT. LTD. & ORS.
.... Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. P.K.N. Pillai suffered injuries in a motor vehicular accident that
occurred on 05.10.2001 involving negligent driving of motor vehicle bearing
registration No.HR 38E 5464 (offending vehicle) and died in the
consequence. His dependent family members, second to fourth respondents
(claimants) instituted an accident claim case (suit No.503/2006) on
05.12.2001 seeking compensation under Sections 166 & 140 of Motor
Vehicles Act, 1988 (MV Act) impleading Vikram Chaturvedi (fifth
respondent) and M/s Khatu Shyam Polyweavers Pvt. Ltd. (first respondent)
and the appellant insurance company as respondents on the averments that
they are the driver and owner and insurer respectively of the offending
vehicle.
2. At the inquiry the insurer admitted its liability to indemnify under the
insurance policy, but, pleaded statutory defences. The driver and owner of
the offending vehicle filed written statement denying the claim brought
before the tribunal but thereafter chose to suffer the proceedings ex-parte.
The tribunal held inquiry, and on that basis passed judgment dated
12.11.2007 upholding the case of the claimants that P.K.N.Pillai had died in
the motor vehicular accident due to negligent driving of the offending
vehicle. Compensation in the sum of Rs.6,08,680/- was awarded with
interest in favour of the claimants.
3. It is noted that the insurer, in the course of the inquiry, had examined
two witnesses including Mohd. Jamil (RW1) record keeper of the transport
authority and G K Nagaraj (RW2), senior assistant, National Insurance Co.
Pvt. Ltd. The purpose of examining the said witnesses was to bring home
the defense plea that the driver (fifth respondent herein) of the offending
vehicle was not holding a valid or effective driving license and thus there a
breach of terms and conditions of the insurance policy. This plea was not
even considered or addressed. The insurance company was directed to pay
the compensation awarded.
4. By the appeal at hand the insurance company presses for recovery
rights against the owner and driver of the offending vehicle submitting that
since it had raised the statutory defence and had also led evidence in
support, the tribunal was duty bound to consider the same and return clear
findings.
5. Having gone through the tribunal's record, this Court finds merit in
the abovementioned contentions of the insurance company. The issue
having been raised and evidence having been led by the insurer, it having
even been noted by the tribunal in (para 4 of) the impugned judgment, there
is no reason why it should have refrained from returning in finding. It was
the duty of the tribunal to consider the pleadings and the evidence and give
findings on facts and also follow it up with suitable directions in accordance
with law. This not having been done, it is in the fitness of things that the
matter limited to inquiry into the issue of statutory defence raised by the
insurer is remitted to the tribunal for the needful now to be done.
6. Thus, the appeal is allowed and further inquiry, limited to the above
noted issue, is remitted to the tribunal for appropriate consideration and
adjudication. For removal of doubts, it is hereby clarified that the finding
affirming the case of the claimants and granting compensation in their
favour is not being disturbed.
7. The parties shall appear before the tribunal for further proceedings on
15.07.2016.
8. By order dated 01.02.2008, the insurance company had been directed
to deposit the entire awarded amount within the period specified. By order
dated 21.01.2009, the said deposited amount was released to the claimants in
terms of the impugned judgment with observation that the appellant would
be entitled to recovery rights, if it succeeds in the present appeal.
9. Since the issue arising out of the defence plea raised by the insurer is
being remitted to the tribunal for appropriate consideration and adjudication,
it is directed that in case the tribunal returns a finding upholding the plea of
breach of terms and conditions of the policy, it shall consider and grant
recovery rights to the insurer.
10. Statutory deposit, if made, shall be refunded.
11. The appeal is disposed of in above terms.
12. A copy of this judgment shall be sent by the registry to the claimants
and the insurance company.
(R.K. GAUBA)
JUDGE
MAY 31, 2016/VLD
