Ajit Goswami vs Sunita Bhati & Ors.
2017 Latest Caselaw 5623 Del

$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: 11th October, 2017

+      MAC.APP. 395/2014 and C.M. Appl. Nos.7537-38/2014 &
       5855/2015
       AJIT GOSWAMI                                   ..... Appellant
                        Through:      Ms. Suman Chauhan, Advocate

                        versus

       SUNITA BHATI & ORS.                              ..... Respondents
                     Through:         Mr. Sunil Dalal, Advocate for
                                      respondents No.1 to 3
                                      Mr. Pankaj Gupta proxy for Ms.
                                      Suman Bagga, Advocate for
                                      respondent No.5
       CORAM:
       HON'BLE MR. JUSTICE J.R. MIDHA

                         JUDGMENT (ORAL)

1. The appellant has challenged the award of the Claims Tribunal whereby compensation of Rs.14,81,272/- has been awarded to respondents No.1 to 3.

2. The accident dated 23rd December, 2005 resulted in the death of Shivraj Singh Bhati. The deceased was survived by his widow and two children, who filed an application for compensation before the Claims Tribunal.

3. The appellant is the owner of scorpio car bearing No.DL-3C-AS-0499 insured with respondent No.5. The appellant was proceeded ex parte before the Claims Tribunal whereas respondent No.5 contested the claim on the ground that the cover note dated 04th October, 2005 expired before the

accident on 23rd December, 2005 as the cheque given by the appellant towards the premium of the cover note was dishonoured and, therefore, the respondent No.5 was not liable. The Claims Tribunal accepted the plea of respondent No.5 and exonerated the respondent No.5 and held the appellant liable for payment of compensation.

4. Learned counsel for the appellant submits that respondent No.5 remained liable for payment of compensation as no notice of dishonour was given by respondent No.5 to the appellant. It is further submitted that the appellant was proceeded ex parte before the Claims Tribunal and the appellant's application under Order IX Rule 13 of the Code of Civil Procedure for setting aside of the ex parte award was dismissed by the Claims Tribunal. It is further submitted that the appellant has already deposited 50% of the award amount which has already been released to respondents No.1 to 3.

5. This Court is of the view that it would be appropriate to set aside the ex parte award and remand the matter back to the Claims Tribunal to consider the defence of the appellant and pass a fresh order with respect to the liability to pay the award amount.

6. In the facts and circumstances of this case, the award of compensation of Rs.14,81,272/- along with interest @ 9% per annum to respondents No.1 to 3 is upheld. The penal rate of interest of 12% awarded by the Claims Tribunal is set aside. The following issues are framed and remanded back to the Claims Tribunal:-

(i) Whether ICICI Lombard General Insurance Company Limited is not liable to pay compensation amount determined by this Court? OPD (Insurance Company)

(ii) If the above issue is decided against ICICI Lombard General Insurance Company Limited, whether the insurance company is entitled to recovery rights against the insured? OPD (Insurance Company)

7. The parties shall appear before the Claims Tribunal on 27th November, 2017 when the appellant shall file the written statement along with the relevant documents whereupon the Claims Tribunal shall fix the case for recording of the evidence of the appellant. The Claims Tribunal shall afford an opportunity to lead evidence to the respondent No.5 and thereafter to the appellant.

8. The Claims Tribunal shall expedite the hearing of the matter and endeavor to decide the same within a period of three months from 27th November, 2017. Learned counsel for all the parties agree not to seek any unnecessary adjournment before the Claims Tribunal.

9. The appellant has already deposited 50% of the award amount which has been released to respondents No.1 to 3. The Claims Tribunal shall adjust this amount in the fresh award that would be passed in the matter.

10. The appellant, present in Court, undertakes not to transfer, alienate or dispose of any of its fixed assets. The undertaking of the appellant is accepted. The appellant shall remain bound by this undertaking till the satisfaction of the fresh award to be passed by the Claims Tribunal.

11. The record of the Claims Tribunal be returned back forthwith.

12. List for reporting compliance on 30th January, 2018.

13. Copy of this judgment be given dasti to counsels for the parties under signatures of the Court Master.

OCTOBER 11, 2017/rsk                                         J.R. MIDHA, J.