Delhi High Court
Iffco Tokio General Insurance ... vs Majnu & Ors on 14 November, 2017
$~R-480
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 14th November, 2017
+ MAC.APP. 354 /2012
IFFCO TOKIO GENERAL INSURANCE COMPANY
LTD. ... Appellant
Through: Ms. Suman Bagga & Ms. Anjali
Chawla, Advs.
versus
MAJNU & ORS ..... Respondents
Through: Mr. Amit Kumar Pandey, Adv.
for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By judgment dated 18.01.2012, on the accident claim case (suit
no. 138/2011/2008) which had been instituted by the first respondent
(the claimant) on 26.05.2008 while returning a finding that the said
claimant had suffered injuries in motor vehicular accident that had
taken place on 28.04.2008 due to negligent driving of motorcycle
bearing registration no. DL 5SR 4531 (the motorcycle) by the third
respondent (driver) and awarding compensation in the total sum of Rs.
1,05,600/- with interest @ 9% per annum, the motor accident claims
tribunal accepted the contention of the appellant (insurance company)
that the cover note relied upon to claim that the motorcycle was
insured against third party risk with it was forged and fabricated but
directed it to pay the compensation and then recover it from the third
respondent (driver) and the second respondent (owner of the
motorcycle).
2. By the appeal at hand, the insurer submitted that the approach
of the tribunal was not fair as in absence of privity of contract, there
being no proof of even premium having been tendered or paid at any
stage, such liability could not have been fastened upon it.
3. The second and third respondents, inspite of service have failed
to appear. The appeal is resisted only by the claimant (first
respondent). It is noted that the third respondent (driver) had appeared
before the tribunal and by his written statement had made vague
replies not dwelling at all on the issue of insurance. The second
respondent did not even appear and suffered the proceedings before
the tribunal ex-parte.
4. The evidence of Dheeraj Babbar (R1W1) Agency Manager on
the strength of his affidavit (Ex.R1W1/A) clearly brought out that no
premium had been paid nor any contract of insurance executed in
respect of the motorcycle at the instance of its owner. The evidence of
the said witness proves that the cover note bearing no. 16000286
(mark A), as had been relied upon, was a forged and fabricated
document. In these facts and circumstances, the plea of the insurance
company must be accepted.
5. The appeal is, thus, allowed. It being not fair to fasten any
liability on the insurance company on the basis of fabricated
document, the directions in the impugned judgment to the appellant to
pay compensation in the first instance to the claimant are set aside.
The claimant is at liberty to execute the award against the other
respondents. The amount deposited by the insurance company
pursuant to order dated 30.03.2012, with accrued interest, along with
statutory deposit, shall be refunded.
6. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 14, 2017
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