Delhi High Court
Naresh Bhardwaj vs Oriental Insurance Company Ltd. ... on 4 August, 2017
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 04th August, 2017
+ FAO 105/2015 and CM 6481/2015 and 6494/2015
NARESH BHARDWAJ ..... Appellant
Through: Mr. Shashank Sharma, Adv.
Versus
ORIENTAL INSURANCE COMPANY LTD.
AND ORS. ..... Respondents
Through: Mr. A.K. Soni, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant was impleaded as second respondent in the
accident claim case (claim petition 244/1999, new no.541/2003) which
was instituted on 16.02.1999 by third to eight respondents
(collectively, the claimants), seeking compensation on account of
death of Tarsem Singh in a motor vehicular accident that occurred
statedly due to the negligent driving of a truck bearing registration
no.UP-14G-0704 (the truck), the appellant being admittedly its
registered owner, it concededly being insured againt third party risk
for the period in question with the first respondent (insurer).
2. It is admitted that the appellant was duly served with the notice
on the said claim case he having engaged a counsel and having
submitted a written statement to put in contest. After filing of the
written statement, however, he suffered the proceedings ex-parte.
3. The inquiry held by the Tribunal resulted in the judgment dated
02.05.2005 whereby the claim for compensation on the principle of
fault liability was upheld and compensation in the sum of
Rs.4,80,000/- was awarded.
4. The insurer had taken the plea of breach of the terms and
conditions of the insurance policy on the ground that the second
respondent, he admittedly being the driver of the offending truck at the
time of the accident, was not holding a valid or effective driving
licence. This plea was accepted on the basis of evidence led by the
insurer there being no contest thereto on behalf of the appellant.
Against this backdrop, while the insurer was directed to satisfy the
award, recovery rights were granted to the insurer against the
appellant.
5. The appellant moved this Court by MACA 95/2006 challenging
the said decision but sought permission to withdraw the same seeking
liberty to move the Tribunal by way of an application under Order IX
Rule 13 of the Code of Civil Procedure, 1908 (CPC). This Court by
order dated 17.10.2006 dismissed the said appeal as withdrawn.
6. The appellant, thereafter, moved the Tribunal by application
under Order IX Rule 13 CPC, with application under Section 5 of the
Limitation Act besides objection petition against enforcement. His
application under Order IX Rule 13 CPC was registered as M-48/2007
and was considered by the Tribunal but dismissed by a detailed
reasoned order dated 03.11.2007. It is the said order which is
challenged by the appeal at hand submitted in April 2015.
7. The appeal was accompanied by two applications having a
bearing on the question of delay. One of them, CM 6482/2015, sought
condonation of delay of 138 days in re-filing. The said application
was allowed by order dated 13.04.2015.
8. The other application, CM 6481/2015 relates to delay in filing
the appeal, it being a delay of 2394 days. The only explanation
tendered in the said application seeking condonation of delay is that
Mr. R.S. Malha, advocate who had been engaged for the purpose had
not communicated the order dated 03.11.2007 or its implications.
This explanation is frivolous on its face and does not deserve to be
accepted. The appellant has not served the counsel with any notice
seeking explanation. He has not filed any complaint against the
advocate with the Bar Council for such inordinate delay, if it was
attributable to the counsel. It is inconceivable that a person who was
well aware that an ex parte order had been passed against him, adverse
to his interest, giving rights to recover the compensation in favour of
the insurance company would not exercise due diligence and would
simply wait for the counsel to come up and inform him about the
result of the proceedings taken out by application under Order IX Rule
13 CPC, that too after it had been revealed in the course of appeal
before the High Court that such was the appropriate remedy.
9. The application for condonation of delay is dismissed. In the
result, the appeal cannot be entertained. The appeal with application
of stay stand disposed of with these observations.
R.K.GAUBA, J.
AUGUST 04, 2017
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