Delhi High Court
Raghubar Dayal vs New India Insurance Co. Ltd & Ors on 6 November, 2017
$~R-415 to 417
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 6th November, 2017
+ MAC.APP. 1031/2011
RAGHUBAR DAYAL ..... Appellant
Through: Mr. Pankaj Vivek & Mr.
Anurag, Advs.
versus
NEW INDIA INSURANCE CO. LTD & ORS...... Respondents
Through: Mr. Pankaj Seth, Adv. for R-1.
+ MAC.APP. 1033/2011
RAGHUBAR DAYAL ..... Appellant
Through: Mr. Pankaj Vivek & Mr.
Anurag, Advs.
versus
NEW INDIA INSURANCE CO. LTD & ORS...... Respondents
Through: Mr. Pankaj Seth, Adv. for R-1.
+ MAC.APP. 1034/2011
RAGHUBAR DAYAL ..... Appellant
Through: Mr. Pankaj Vivek & Mr.
Anurag, Advs.
versus
NEW INDIA INSURANCE CO. LTD & ORS...... Respondents
Through: Mr. Pankaj Seth, Adv. for R-1.
MAC Appeal No. 1031/2011 & conn. Page 1 of 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 24.05.1996, a motor vehicular accident occurred, it
involving two vehicles, one being two wheeler scooter no. DNI 8655
(the scooter) and the other truck bearing registration no. DHG 92 (the
truck). The scooter was driven at the relevant point of time by
Mukesh Khanna with his mother Satya Khanna sitting on the pillion.
The collision resulted in death of Mukesh Khanna and grievous
injuries being suffered by Satya Khana. Three accident claim cases
were instituted, they including 270/2004, 272/2004 and 271/2004, the
first by the wife and daughter of Mukesh Khanna, impleading the
mother Satya Khanna as a proforma respondent; the second by the
mother Satya Khanna impleading the wife and daughter of the
deceased Mukesh Khanna as proforma respondents; and, the third, by
Satya Khanna seeking compensation for her injuries. In each case
Ashok Singh (a respondent) was impleaded as a party, he being
described as the driver of the truck who was negligent. In addition,
Subhash Chander and New India Assurance Company Ltd. were
impleaded as party respondents on the averments that they were the
registered owner and insurer of the truck respectively.
2. The respondent Ashok Singh in the claim cases, contested by
filing a written statement denying any fault on his part. Subhash
Chander, the respondent described in the proceedings as the registered
owner of the truck would not appear and, thus, was set ex-parte. The
insurer, by its written statement, admitted the issuance of an insurance
policy covering third party risk for the period in question in the name
of Subhash Chander but took up the plea of breach of the terms and
conditions of the insurance policy on the ground that the driver was
not holding a valid or effective driving licence at the time of the
accident.
3. The tribunal held inquiry by clubbing all the three cases and
granted compensation on account of death of Mukesh Khanna, as also
for injuries suffered by Satya Khanna, fastening the liability to pay the
said amounts to the claimants on the insurer.
4. During the course of inquiry, the insurer had led evidence in an
effort to prove that it was not liable. Such evidence included the
deposition of Raghubar Dayal (the appellant herein), he having been
summoned and examined as a witness (R3W1) to prove that it was he
who had taken the truck on superdari after it had been seized during
investigation of the corresponding criminal case. The insurance
company also examined SI Rameshwar (R3W4) who was the
investigating police officer in FIR No. 293/1996 under Sections
279/304A of Indian Penal Code, 1860 (IPC) of police station Karol
Bagh to prove, amongst others, the fact of release of the truck to the
appellant (R3W1) on superdari. Reliance was also placed on the
testimony of Mohd Ghaush (R3W5), an official from the office of
Regional Transport Office, Govt. of NCT of Delhi such testimony
indicating (vide Ex.R3W5/A) that the truck is registered in the name
of the appellant.
5. On the basis of above material, the tribunal while calling upon
the insurance company to pay the compensation to the claimants gave
it "liberty to seek recovery rights against the owner Raghubar Dayal
S/o Moti Lal, with interest."
6. These appeals were filed primarily contending that the
procedure adopted by the tribunal was incorrect and in violation of the
rules of natural justice for the reason the appellant was not even
impleaded as a party respondent to the claim cases, he also raising the
plea of denial of any liability or connection with the vehicle in
question.
7. Having heard the learned counsel for the appellant and for the
insurance company, this Court is of the opinion that the appeals must
be allowed. But, the issue being of import cannot be sidelined and
would need further and proper inquiry, this for the simple reason that
liability could not have been fastened in the manner done by the
tribunal without the appellant being impleaded as a party to the claim
cases and without he being called upon to respond by way of
appropriate pleadings or being given the opportunity to lead evidence
in rebuttal.
8. It will, however, be unfair and unjust towards the claimants to
reopen the inquiry into their claims, the liability in which regard has
been correctly placed initially at the door of the insurance company.
Therefore, the appeals are allowed with the direction that the issue as
to whether the appellant was the owner of the vehicle in question and
as to whether the compensation paid by the insurance company can be
recovered from him in the aforesaid claim cases, is remitted to the
tribunal for appropriate adjudication against the backdrop noted
above. It will be proper that the insurance company first files its
pleadings qua the appellant in the form of statement of claim for
recovery to which the appellant will be liable to respond by his own
pleadings in answer, followed by framing of issues, if any, and
opportunity to lead evidence to both sides.
9. The appellant and the insurer are, thus, directed to appear before
the tribunal for further proceedings in accordance with law on 6 th
December, 2017. In case so required, the tribunal will consider
impleadment of any other party for further inquiry that has been
ordered as above.
10. The statutory deposits in these appeals made by the appellant
shall be made over to the tribunal for being retained in the form of
fixed deposit receipts in a nationalized bank initially for a period of six
months with provision for auto renewal and applied, in case the
liability is fastened on the appellant, towards satisfaction of award.
Conversely, such amounts with accrued interest would be liable to be
refunded to him in case he is not found to be liable.
11. These appeals are disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 06, 2017
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