Delhi High Court
Icici Lombard General Ins. Co. ... vs Lallan Kumar & Ors on 25 October, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th October, 2017
+ MAC.APP. 735/2016 & CM No. 32778/2016 (stay)
ICICI LOMBARD GENERAL INS. CO. LTD. ..... Appellant
Through: Mr. Sandeep Jha, Adv.
versus
LALLAN KUMAR & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 10.09.2008 accident claim case (suit no. 514/ 10 /2008) was
filed by the first respondent (the claimant) seeking compensation
under section 166 read with section 140 of the Motor Vehicle Act,
1988 on the averments that on 12.08.2008, he had suffered injuries in
motor vehicular accident that had occurred due to negligent driving of
a three-wheeler scooter bearing registration no. DL-1RG-8591(TSR).
The claimant had impleaded as respondents, the second and third
respondents herein describing them as the driver and owner
respectively of the TSR. Additionally, the appellant was impleaded as
a respondent in the claim case on the basis of averments that it was the
insurer of the TSR against third party risk for the period in question.
The case was contested by all the said parties including the appellant.
The second and third respondents have filed a joint written statement
on 23.10.2013, the pleadings contained therein also responding to the
position taken by the appellant herein in its written statement
submitted on 23.12.2009 denying any privity of contract disputing that
the policy no. 4006/2985445/00/000 (page 255 of the tribunal's
record) which had been referred to by the claimant was never issued as
motor insurance policy, it being a forged and manipulated document.
During the course of inquiry, the second and third respondents
examined Manoj Kumar (R2W1) to bring on record his version to the
that the third respondent (Pushupati Pandit) had been introduced by
him to an agent name Pintu through whom the insurance policy in
question had been purchased from the appellant. The appellant on the
other hand examined Vivek Yadav (r3w1) to prove its contention that
the particulars given concerning the insurance policy actually relate to
money insurance policy and that no such insurance cover had been
issued in respect of TSR. It is pertinent to note here that at the stage
when R3W1 was examined by the appellant, the second and third
respondents herein had opted to suffer the proceeding ex parte.
2. The tribunal, by its judgment dated 14.03.2016, however,
decided to fasten the liability on the appellant observing inter alia that
the document in question clearly shows the particulars of the TSR in
question referring to the possibility that the insurance company
officials may have been in collusion with the agents to dupe innocent
customers.
3. Aggrieved with the above decision of the tribunal, the insurance
company filed the present appeal denying any liability to indemnify
asserting that the document is false and fabricated one which cannot
be permitted to be used.
4. Though having entered appearance through counsel at one
stage, having served with notice, when the matter is taken up by this
court, there is no appearance by the second and third respondents.
Crucially, the first respondent (collectively, the claimants) could not
be found at the given address and therefore recourse had to be made to
the mode of substituted service inspite of which he has failed to
appear.
5. Having heard the learned counsel for the appellant and having
perusal of tribunal's record, this court finds the approach of the
tribunal irresponsible. It needs to be noted here that the possibility
that they had been in fabrication of documents referred to as the
insurance policy issued by the appellant had dawned even on the third
respondent (the registered owner of TSR). It is for this reason that in
his pleadings in the written statement while narrating the
circumstances in which he had obtained the said document as
insurance cover with the help of Manoj Kumar (R2W1) from an agent
Pintu, he proceeded to inform that he was constrained to file a
criminal complaint in the Court of the Metropolitan Magistrate under
section 156 (3) of the Code of Criminal Procedure, 1973 pursuant to
which first information report (FIR no. 360/2013) had been registered
by police station New Usman Pur of District North East Delhi
offences punishable under section 420, 468, 471, 120B of Indian Penal
Code (IPC).
6. The third respondent did not enter the witness box to affirm on
oath that the insurance policy was a valid document. From the above
noted proceedings, it is his own case that the document on which he
relied on was not genuine. This would only substantiate the evidence
led by the appellant through R2W1, the witness R2W1 examined by
the third respondent conceded that he was not privy to payment of any
premium or insurance of insurance policy.
7. In the foregoing facts and circumstances, the claimant and the
second and third respondents have failed to prove that the any valid
insurance policy existed so to as bind the appellant insurance company
with the liability to indemnify.
8. In above facts and circumstances, the impugned judgment to the
extent, it holds appellant liable to indemnify the appellant is set aside.
The claimant would have the liberty to proceed against the second and
third respondents for recovery of the awarded compensation as they
have been held jointly and severely liable.
9. The matter cannot, of course ends here. It is a cause of concern
that fabricated document was attempted to be used. The tribunal is
directed to hold further inquiry into that aspect and examine as to
whether criminal action on its part in terms of section 195 and 340
Cr.PC is called for. For such purposes, it shall proceed further by
taking up the case on 23.11.2017. The insurance company would be
obliged to participate in such inquiry as it possibly concerns the role of
its officials and agents.
10. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
OCTOBER 25, 2017
umang
