Delhi High Court
Birender vs Oriental Insurance Co Ltd on 11 August, 2017
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th August, 2017
+ MAC.APP. 712/2017 and CM APPL.28796-28799/2017
BIRENDER ..... Appellant
Through: Ms. Renu Kaushik, Advocate
with Mr. S. Mohit, Advocate
versus
ORIENTAL INSURANCE CO LTD ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant admittedly was the registered owner of the truck
bearing registration No.HR-38E-2547, when it came to be involved in
a motor vehicular accident that occurred on 28.05.2005 due to
collision against motorcycle bearing registration No.DL-3SQ-2819
resulting in injuries being suffered by one Vikram Kaim, who
instituted accident claim case (Suit No.347/2005) on 05.09.2005
seeking compensation impleading him (the appellant), Narender Singh
(described as the driver) and Oriental Insurance Company Limited
(the insurer), it admittedly being insurer of the truck against third party
risk for the period in question at the instance of the appellant herein.
2. It is submitted by the learned counsel for the appellant that
notice was received of the said claim proceedings by him but, under
some improper advice, he did not appear and participate and, thus, was
set ex parte. The proceedings before the tribunal leading to inquiry
resulted in judgment dated 19.12.2012, whereby compensation was
awarded in favour of the claimants, the said computation being
modified by subsequent order dated 17.04.2013 at the instance of the
insurer.
3. The insurer in the course of inquiry before the tribunal had
pleaded breach of terms and conditions of the insurance policy on the
ground that the truck had been brought to Delhi without a valid
permit. The tribunal considered this submission in the light of
evidence and adjudicated upon it in the following manner:-
"20. On the question of liability, it is submitted by counsel
for insurance company that vehicle was not holding valid
permit to ply vehicle in Delhi on the date of accident. This
amounts to fundamental breach of condition of policy, thus
insurance company is liable to pay compensation. In support
of its case, the insurance company got examined, Sh.
Abhinash Kumar, as R3W1 who proved the attested copy of
policy and also deposed that notice under Order 12 R.8
CPC was given to the owner by the insurance company for
the production of permit to ply vehicle in Delhi on the date
of accident and the same was not supplied. Non production
of permit to run the commercial vehicle such a defence is
legally available to the insurance company under Section
149 of MV Act. The policy issued for the offending vehicle
was subject to a condition that vehicle should be driven
under a valid permit. However, the owner has failed to
produce valid permit hence, there is breach of a
fundamental conditions and terms of policy. In view of the
settled law that insurance company is liable qua third party
and it shall however, vest with a right to recover the amount
of liability from insured after depositing the compensation
awarded to third party. As discussed above, since there was
no permit issued for the offending vehicle to ply as
commercial vehicle, so insurance company shall have right
to recover the same from respondent no.2. Accordingly,
insurance company shall deposit the amount of
compensation and then after depositing shall have right to
recover from respondent no.2 in whose name vehicle is
registered."
4. The appellant seeks to assail the recovery rights which have
been granted to the insurer by the tribunal as per the findings noted
and recorded above. He has come up with the appeal with an
application for condonation of delay of 1320 days seeking to put the
entire blame on to an advocate who had been engaged by him on
17.04.2013.
5. There is no explanation, however, as to why the appellant
would not appear or participate in the inquiry before the tribunal. On
being asked, the learned counsel for the appellant submits that truck
was not covered by any valid permit for Delhi on the relevant date.
6. In the above facts and circumstances, the appeal and the
applications filed therewith are found devoid of substance.
7. Dismissed in limine.
R.K.GAUBA, J.
AUGUST 11, 2017
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