Delhi High Court
Naresh Kumar vs Bajaj Allianz General Insurance ... on 20 November, 2017
$~R-511
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th November, 2017
+ MAC APPEAL 584/2012
NARESH KUMAR .... Appellant
Through: Mr. Navneet Goyal, Advocate
versus
BAJAJ ALLIANZ GENERAL INSURANCE
CO. LTD. & ORS. ..... Respondents
Through: Mr. A.K. Soni, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The Motor Accident Claims Tribunal (Tribunal) while deciding
the accident claim case (MACT no.852/2010) of the second
respondent (claimant), by judgment dated 29.01.2011, directed the
first respondent, insurer of the offending vehicle, it being a blue line
bus bearing registration no.DL-1PB-1243, to pay the same initially but
granted it recovery rights against the appellant, he concededly being
the registered owner of the bus, inter alia, on the grounds that the third
respondent (driver) was not holding a valid authorization and the bus
being not covered by a permit for the place of accident.
2. It appears the proceedings leading to the judgment dated
29.01.2011 before the tribunal were ex-parte against the appellant. He
had later moved an application under Order IX Rule 13 of the Code of
Civil Procedure, 1908 (CPC) praying for the said ex-parte judgment to
be set aside on the ground that he had not been properly served. The
tribunal dismissed the said application and the applications filed
therewith by order dated 19.03.2012.
3. The appeal at hand challenges both the judgment dated
29.01.2011 and the order dated 19.03.2012. The contention of the
appellant is that he was not properly served. This is sought to be
demonstrated by the fact that the notice was tendered to and
purportedly received by one Narender Kumar. The appellant also
submits that he had a valid defence on the issue of the driving licence
and permit and, thus, submits that he would not press for the award of
compensation in favour of the claimant to be set aside but only prays
for a limited inquiry on the defence affecting the recovery rights.
4. Having regard to the facts and circumstances, the prayer is
granted. The issue of the breach of terms and conditions of the
insurance policy is remitted to the tribunal for further inquiry. In such
further inquiry, it shall be the burden of proof of the appellant (owner
of the vehicle) to prove that the driver had a valid authorization to
drive the vehicle on the date, time and place when the accident
occurred and that, for such purposes, the bus was also covered by a
valid permit. The parties i.e. the appellant (owner) and the first
respondent (insurer) shall appear before the tribunal on 21.12.2017 for
further proceedings in accordance with law.
5. By order dated 25.05.2012, the enforcement of the recovery
rights against the appellant was stayed subject to deposit of an amount
of Rs.1,00,000/- in the name of the Registrar General within the period
specified which was treated as additional amount over and above the
amount of Rs.1,00,000/- which had statedly been deposited earlier by
the appellant with the Metropolitan Magistrate and adjusted towards
payment of compensation to the claimant. The tribunal after rendering
a fresh decision on the issue of recovery rights, shall also pass
necessary directions with regard to the payment(s) earlier made
through the court of the Metropolitan Magistrate as well as the amount
deposited with the Registrar General.
6. The amount deposited with the Registrar General with accrued
interest, if any, shall be made over to the tribunal by the registry, to be
retained by the tribunal in an interest bearing fixed deposit receipt
taken out from a nationalized bank initially for a period of six months
with provision for auto renewal.
7. The statutory amount, if deposited, shall be presently refunded
to the appellant.
8. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 20, 2017
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