Delhi High Court
M/S Supreme Road Transport Pvt. ... vs M/S New India Assurance Co. Ltd & ... on 21 August, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st August, 2017
+ MAC APPEAL No.1047/2016 & CM Nos. 45577/2016,
45655/17, 5367/2017
M/S SUPREME ROAD TRANSPORT PVT. LTD. ..... Apellant
Through: Mr. Abhishek Kumar, Adv.
versus
M/S NEW INDIA ASSURANCE CO. LTD &
ANR. .....Respondents
Through: Mr. J.P. N. Shahi, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant is the registered owner of the offending truck
bearing registration no. CG-04G-7354, the negligent driving of which
is stated to have resulted in a motor vehicular accident that took place
on 10.07.2008 at about 12.45 p.m. on GT Karnal Road, Village
Khampur, Delhi, resulting in death of Ajay Kumar which was the basis
of the claim for compensation, instituted as accident claim case (case
no. 885/08), by parents of the said deceased.
2. The appellant herein was impleaded as second respondent
before the tribunal, this in addition to Ram Singh Yadav, second
respondent herein, he being the driver engaged in the vehicle by the
appellant, besides the first respondent, it admittedly being insured
against third party risk for the period in question. The record would
show that the appellant and its driver (second respondent) did not
appear in spite of service and, thus, were set ex-parte.
3. The inquiry culminated in judgment dated 06.09.2014 whereby
compensation in the sum of Rs. 5,64,000/- was awarded in favour of
the claimants, the liability having been fastened on the insurer with
interest @ 9% per annum from the date of filing of the petition till
realization.
4. It is also noted that during the course of the aforesaid inquiry,
the insurer had taken the plea of breach of terms and conditions of the
insurance policy, the prime contention being that the truck did not have
a valid permit for Delhi. The insurer had led evidence in this regard by
examining Mahavir Singh (R3W1) to prove that it had called upon,
inter alia, the appellant to produce all the necessary documents,
including the permit, by serving a notice under Order 12 Rule 8 of the
Code of Civil Procedure, 1908 (CPC) to which there was a response in
the form of reply (Ex.R3W1/5) whereby the appellant shared the copies
of driving licence and of the insurance policy of the vehicle but there
was conspicuous silence on the issue of permit.
5. From the above facts and circumstances, the tribunal
concluded that there was no valid permit in existence and, therefore,
recovery rights were granted against the appellant and in favour of the
insurer.
6. The appellant moved an application under Order 9 Rule 13
CPC, inter alia, contending that it was never served with the summons.
The said application was dismissed by the tribunal, by order
31.08.2015, observing that the record showed that the notice had been
duly served on an employee (Manager Sadhu Ram) engaged by the
appellant and there being nothing on record to show that the appellant
was prevented by any sufficient cause from appearing before the
tribunal, the plea for setting aside the ex-parte judgment thus being not
acceptable.
7. The appeal at hand was filed seeking to assail the judgment
dated 06.09.2014 and the order dated 31.08.2015. Alongside this
appeal, application has been moved (CM No. 5367/2017), seeking
liberty to adduce additional evidence under Order 41 Rule 27 CPC, the
prime contention pressed in such application, and in the context of the
main appeal, being that a valid permit did exist, the requisite fee
thereof having been duly paid to the appropriate authority on
04.07.2007, such permit for Delhi being valid till 13.07.2008 which
would cover the date of accident. A copy of document purporting to
support the said contention has been submitted as Annexure H with the
appeal at hand.
8. In the above noted facts and circumstances, it does appear just
and proper that the appellant be given one more opportunity to prove
existence of the valid permit for the crucial date. It cannot, however, be
ignored that there has been a total neglect on the part of the appellant to
prosecute its defence since there was opportunity granted for such
purposes by the tribunal, the proceedings having remained pending on
its board from July, 2008, till the judgment was passed on 06.09.2014,
due caution again having come the way of the appellant by notice
under 12 Rule 8 CPC which had been issued and served on the
appellant by the insurer to which there was an evasive reply. It cannot
be ignored that on account of such neglect on the part of the appellant,
the burden of the insurer would have unnecessarily multiplied, it being
eventually called upon to bear the award with interest.
9. In the foregoing facts and circumstances, it is deemed proper
that appellant be called upon to lead evidence for a short inquiry as to
whether valid permit existed on the date in question. The case is
remitted to the tribunal for such purposes. In the said inquiry, the
burden to prove the existence of the valid permit would be that of the
appellant (registered owner of the vehicle in question). Ordered
accordingly.
10. The appellant and the insurer are directed to appear before the
tribunal for further inquiry into the above aspect on 18th September,
2017. The tribunal shall give an opportunity to the appellant to prove
its contention about the existence of the permit by formal evidence and,
after such opportunity has been granted, the insurer will also be entitled
to lead evidence in rebuttal, if any.
11. Given the above facts and circumstances, it is further directed
that the tribunal shall also ascertain the additional burden that has been
placed on the insurer on account of interest liability due to earlier
neglect on the part of the appellant in rendering timely and effective
assistance. If upon the conclusion of the said inquiry, the tribunal finds
that a valid permit did exist, the appellant would be entitled to be
indemnified by the insurer, but subject to it bearing the additional
burden on account of interest liability. Conversely, if the tribunal were
to hold that no valid permit existed, the recovery rights as already
granted shall prevail and may be enforced by the insurer.
12. In terms of the directions in order dated 07.12.2016, the
appellant is stated to have deposited the requisite amount with interest
with the tribunal. The said deposited amount shall be retained by the
tribunal in interest bearing fixed deposit account in a nationalized bank
initially for a period of three months with provision for auto renewal.
The said amount in deposit with accrued interest shall be availed by the
tribunal for recording satisfaction of the order that is eventually passed.
13. The statutory amount shall be presently refunded.
14. All pending applications stand disposed of.
R.K.GAUBA, J.
AUGUST 21, 2017
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