Delhi High Court
Be-Ar Sales vs Vimal Devi & Ors. on 16 November, 2017
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16th November, 2017
+ MAC.APP. 238/2013 and CM 40004/2017
BE-AR SALES ..... Appellant
Through: Mr. S.N. Parashar and Ms. Pankaj
Kumari, Advocates
versus
VIMAL DEVI & ORS. ..... Respondents
Through: Mr. A.K. Soni and Mr. Pavan
Kumar, Advocates for R-7
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant is admittedly the registered owner of a motor
vehicle described as a tanker bearing registration no.DL-1GB-5039
(tanker) meant for carrying petroleum, which was involved in a motor
vehicular accident that occurred on 20.11.2007 resulting in death of
Ram Bishun Ram, giving rise to cause of action for instituting
accident claim case (suit no.650/2008) on 16.04.2008 by the first to
fourth respondents who also prosecuted it for and on behalf of the
parents of the deceased, they being fifth and sixth respondents (all of
them collectively, the claimants). The tanker was admittedly driven at
the relevant point of time by the eighth respondent (driver) and
insured against third party risk for the period in question with the
seventh respondent (insurer). The driver (eighth respondent) and the
owner (appellant) had due notice of the claim proceedings and in
response to the notices issued, appeared before the Motor Accident
Claims Tribunal (Tribunal) and filed a joint written statement, inter
alia, denying negligence on their part and also asserting that the driver
held a valid driving licence at the relevant point of time. Midway the
inquiry, however, the said parties including the appellant chose to
suffer the inquiry ex-parte.
2. The insurer, while contesting the claim case and denying the
liability to indemnify, took up the plea that there was a breach of the
terms and conditions of the insurance policy since the driver held a
licence which did not bear the requisite endorsement for purposes of
vehicle carrying hazardous goods in terms, inter alia, of Sections 4, 9,
10 & 14 of the Motor Vehicles Act, 1988 and Rules 9 and 32 of the
Central Motor Vehicles Act, 1989. It led evidence by examining
Sanjay Diwan (R3W1), Assistant Secretary, State Transport Authority
for the Govt. of NCT of Delhi and Anushree Dutt, Executive Legal,
also referred as R3W1. By the said evidence, the insurer brought on
record not only the factum of there being no endorsement on the
driving licence for purposes of vehicle meant to carry hazardous goods
but also proved that in spite of notice under Order XII Rule 8 of the
Code of Civil Procedure, 1908 (CPC), the driver or owner had failed
to respond or produce any such endorsement. The evidence of both the
witnesses examined by the insurer went unchallenged and
unimpeached and there being no evidence led by the appellant or the
driver to the contrary, the tribunal accepted the plea of the breach of
the terms and conditions of the policy and granted recovery rights in
favour of the insurer against the appellant.
3. The appeal at hand is pressed to challenge the grant of recovery
rights, one of the contentions being that the driver had undertaken the
requisite training for driving a vehicle meant for hazardous goods in
which light the tribunal should not have granted recovery rights. The
application (CM 40004/2017) has been moved with the appeal seeking
opportunity to lead additional evidence under Order XLI Rule 27
CPC.
4. It is clear from the submissions made, and it is fairly conceded
by the counsel for the appellant, that there was gross neglect in the
prosecution of the defence by the appellant during inquiry before the
tribunal. Had proper assistance been adduced, such protracted inquiry
into the issue of valid licence could have been avoided. Needless to
add, the lack of assistance by the appellant at the proper stage, would
have added to the burden on the insurance company on account of the
levy of interest over and above the compensation awarded in favour of
the claimants.
5. In the foregoing fact-situation, the appropriate course is for the
limited issue of breach of the terms and conditions of the policy to be
remitted to the tribunal for fresh determination, this after affording
another opportunity to the appellant to show facts to the contrary by
requisite evidence. The impugned judgment is set aside and the matter
restricted for such limited inquiry is remitted to the tribunal with costs
of Rs.50,000/- to be paid by the appellant to the insurance company.
Needless to add, the right to proceed further in the inquiry hereby
remitted before the tribunal shall be subject to payment of costs. The
tribunal shall call upon the appellant to adduce evidence relevant to
the issue and thereafter give similar opportunity to the insurance
company to prove facts to the contrary. The insurance company for
such purposes may rely on the evidence already adduced before the
tribunal.
6. By order dated 12.03.2013, the appellant had been directed to
deposit Rs.25,00,000/- with the Registrar General which was ordered
to be kept in fixed deposit receipt with the UCO Bank, Delhi High
Court Branch initially for a period of six months to be renewed
periodically. The necessary direction with regard to the amount thus
deposited and the interest accrued thereupon shall be given by the
tribunal in the light of its findings in the inquiry hereby remitted.
7. The statutory amount shall also be held back presently, suitable
orders for its refund or otherwise to be given by the tribunal on
conclusion of the further inquiry.
8. The parties to appear before the tribunal on 18.12.2017.
9. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
NOVEMBER 16, 2017
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