Delhi High Court
National Insurance Co. Ltd. vs Mrs. E. John & Ors. on 3 November, 2017
$~R-401
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd November, 2017
+ MAC APPEAL 902/2011
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. A. Jain, Adv. for
Ms. Shantha Devi Raman, Adv.
versus
MRS. E. JOHN & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Accident claim case (MACT No.01/02/2011) was registered on
13.12.2002, initially by Mr. F. John (fourth respondent) seeking
compensation on account of death of his son Deepak John in motor
vehicular accident which had occurred on 02.10.1999, involving
Maruti Van bearing registration no.DL-6C-B-9328 (the van). Later,
Mr. F. John was transposed as a respondent to the said proceedings,
the claim case having been passed by his wife E. John (first
respondent) and Ms. Anna, minor daughter of Late Deepak John
(second respondent). The case initially presented under Section 166
of Motor Vehicle Act, 1988 was converted, midway the proceedings,
into one under Section 163A of Motor Vehicle Act, 1988 to press for
compensation to be awarded under the structured formula on the
principle of no-fault liability.
2. It appears that the fourth respondent is the registered owner of
the van, the case of the parties being that the third respondent, Jaipal,
was the driver employed by the registered owner. Concededly, the
van was insured against third party risk with the appellant (insurer).
3. The tribunal has returned finding by judgment dated
19.07.2011, which is impugned by the present appeal, about the
involvement of the van in the accident driven by the third respondent,
it resulting in death of late Deepak John, on the basis of evidence of
the fourth respondent (PW1), the first respondent (PW2) and the third
respondent Jaipal (R1W1), the last deposing on the strength of his
affidavit (Ex.R1W1/A). It may be added here that the third
respondent had initially been set ex-parte, but he appeared in the
proceedings again on 15.04.2011 when he moved an application
seeking permission to lead evidence which was allowed, where after
his testimony, as mentioned above, was recorded.
4. The insurer, by the appellant at hand, submits that it was not
proper on the part of the tribunal to allow the application moved by
the third respondent on 15.04.2011 since it had been moved behind the
back of the insurance company, there being no application by the said
party seeking the ex-parte proceedings to be set aside. The insurance
company submits that it has been deprived of the opportunity to
contest the evidence of R1W1.
5. Having heard the learned counsel and having perused the
record, this Court finds no merit in the contentions raised. The case
was listed before the tribunal on 15.04.2011. In this view, it was the
obligation of the insurance company, which had due notice, to appear
when the matter was taken up. There was no appearance on behalf of
the insurance company and since there was no contest to the
application, it was allowed and the tribunal proceeded to record the
testimony of third respondent, he appearing as R1W1.
6. It is further noted that the insurance company did not appear on
four consecutive dates thereafter. The tribunal had even issued a court
notice to the counsel for the insurance company by order dated
06.07.2011. The notice was duly served but the counsel would not
appear. Eventually, the tribunal proceeded to decide the case by the
impugned judgment.
7. There is no explanation for the continued absence on the part of
the insurance company before the tribunal with effect from
15.04.2011. In these facts and circumstances, the contention that the
evidence of the driver was recorded behind the back of the insurance
company cannot be accepted. The appeal is, therefore, dismissed.
8. By order dated 12.10.2011 the insurance company had been
directed to deposit the entire awarded amount along with up-to-date
interest with the Registrar General within the period specified as a pre-
condition to the stay against execution. The amount in deposit would
now be released to the claimants in terms of the impugned order.
9. In the foregoing facts and circumstances, the statutory deposit is
forfeited as costs in favour of Delhi High Court Legal Services
Committee. The registry shall pass on the same accordingly.
R.K.GAUBA, J.
NOVEMBER 03, 2017
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