Delhi High Court
United India Insurance Co. Ltd. vs Smt. Chand Kumari & Anr. on 3 November, 2017
$~1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd November, 2017
+ CM (M) 570/2013
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani with Mr.
P. Acharya, Adv.
Versus
SMT. CHAND KUMARI & ANR. ..... Respondents
Through: Mr. Deepak Maharaj, Adv. for
R-1 & 2.
+ MAC.APP. 457/2013
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani with Mr.
P. Acharya, Adv.
Versus
SITALI DEVI & ORS. ..... Respondents
Through: Mr. Deepak Maharaj, Adv. for
R-1 & 2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Accident Claim case (MACT No. 73/2012) had been
instituted on 10.01.2012 by four claimants, they being Sitali Devi,
Chand Kumari, Sunny Kumar, Sonu Kumar, being the mother, wife
and minor sons respectively of Shyam who had died in a motor
vehicular accident that had occurred on 12.10.2011. The claim case
was decided by the tribunal, by judgment dated 01.03.2013, returning
a finding that the accident had occurred due to negligence on the part
of Ashok Kumar (fifth respondent in MAC No. 457/2013) while
driving truck bearing registration no HR 38 G 9548, which was
admittedly insured against third party risk with United India Insurance
Company Ltd. (appellant in MAC Appeal No. 457/2013) and
petitioner in CM(M) 570/2013. The said vehicle was registered in the
name of Harvindra Singh (fourth respondent in appeal), the said
driver, owner and insurer had been impleaded as party respondents
before the tribunal.
2. The tribunal held the driver and owner jointly and severally
liable to pay compensation determined in the sum of Rs. 14,56,750/-,
fastening the liability on the insurer to pay the said amount, rejecting
its plea about breach of terms and conditions of the insurance policy.
3. It appears that Master Sunny Kumar, one of the sons of the
deceased Shyam, had died on 21.10.2012 during the pendency of the
inquiry before the tribunal. This fact was brought to the notice of the
tribunal, after the inquiry had been concluded and the award had been
passed. The tribunal by its subsequent order dated 09.05.2013, revised
the directions passed in the judgment dated 01.03.2013, apportioning
the amount earlier given to Master Sunny Kumar equally amongst his
mother Chand Kumari and sibling Sonu Kumar, two of the other three
claimants.
4. The insurance company filed MAC Appeal no. 457/2013
questioning judgment of the tribunal, particularly assailing the finding
on the issue of negligence. In the appeal, it impleaded Sitali Devi
(mother), Chand Kumari (wife) and Master Sunny Kumar (son) as
first, second and third respondents. It also questioned the subsequent
order dated 09.05.2013, by CM (M) 570/2013, on the ground that such
order could not have been passed after the judgment had been
rendered. In the said petition Chand Kumari (wife) and Master Sunny
Kumar (the son) were shown as first and second respondents.
Obviously, Master Sunny Kumar could not have been impleaded as a
party to the appeal, or to the petition, since, to the knowledge of the
insurance company, he had already died on 21.12.2012, which was the
reason for the order dated 09.05.2013 being passed by the tribunal.
5. During the pendency of these matters, Chand Kumari has also
died. This fact was brought to the notice of the counsel for the
insurance company by the counsel representing the claimants on
09.03.2017. In fact, on 09.03.2017, in the course of hearing on CM
(M) 570/2013, the counsel representing the claimants pointed out that
both the persons shown in the array as respondents had passed away.
He also pointed out that Master Sonu Kumar, the surviving child of
the deceased Shyam had not been made a party.
6. The counsel representing the insurance company against the
above backdrop had sought time to obtain instructions. For such
purposes, the matter was adjourned. By directions in both these
matters issued by separate orders of 09.03.2017, the counsel for
claimants was called upon to make available to the insurance
company, the particulars of legal heirs of Chand Kumari. It is
admitted that the counsel for the claimants had sent a communication
dated 10.08.2017, by post, to the counsel for insurance company
whereby he, inter alia, informed that Sonu Kumar was the only legal
heir surviving after the death of Chand Kumari. It also pointed that he
had not been impleaded as a respondent.
7. Inspite of the above due intimation, and opportunity, the
insurance company has neither taken any steps to implead Sonu
Kumar in these proceedings nor to substitute Chand Kumari by her
legal heirs in terms of obligation under Order 22 Rule 4 of Code of
Civil Procedure, 1908.
8. In these circumstances, the appeal and the petition at hand are
found not only defective on account of non-joinder but also to have
abated. These proceedings arising out of appeal and petition are, thus,
closed.
9. By order dated 20.05.2013, the insurance company had been
directed to deposit the entire awarded amount with upto date interest
with the Registrar General who was permitted to release 75% of the
awarded amount in favour of the claimants, the balance required to be
put in fixed deposit receipt with UCO Bank, initially for a period of
six months with provision for auto renewal.
10. In the given fact-situation, the surviving claimant(s) are given
liberty to approach the tribunal, by appropriate application, for re-
adjustment of the apportionment whereafter the tribunal will issue
necessary directions for release of the balance lying in deposit.
11. The statutory amount by the insurance company may be
refunded.
R.K.GAUBA, J.
NOVEMBER 03, 2017
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