Delhi High Court
Iffco Tokio General Insurance Co ... vs Suman & Ors on 8 September, 2017
$~2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 08th September, 2017
+ MAC.APP. 622/2013
IFFCO TOKIO GENERAL INSURANCE CO
LTD .... Appellant
Through: Mr. Harsh, Advocate
Versus
INDRA SHARMA & ORS ..... Respondents
Through: Mr. Vishwa Ranjan Kumar,
Advocate for R-1 to 4
+ MAC.APP. 623/2013
IFFCO TOKIO GENERAL INSURANCE CO
LTD ..... Appellant
Through: Mr. Harsh, Advocate
Versus
SUMAN & ORS ..... Respondents
Through: Mr.Rajnish K. Jha, Advocate for
R-2 to 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 19.01.2009, a motor vehicular accident took place involving
two vehicles, one being car bearing registration no.DL-CF-0891 (the
car) and the other, a tanker bearing registration no.PB-04 9573
(tanker), it becoming subject matter of investigation by the police
through first information report (FIR no.16/2009) of police station
Tanda in District Hoshiarpur, Punjab for offences under Sections 279,
304A, 337, 338, 427 of Indian Penal Code, 1860. Several persons
were injured in the said accident including Hari Om and Mukesh
Kumar Sharma, both of whom died in the consequence. The accident
claim cases on account of the said two deaths, one (MACT no.107/09)
brought by members of the family dependent on Hari Om, they being
first to sixth respondents in MACA 623/2013 and the other (MACT
267/09/2010) by the members of the family dependent on Mukesh
Kumar Sharma, they being first to fourth respondents in MACA
622/2013, each seeking compensation on the averments that the
accident had occurred due to the negligent driving of the tanker by
Sonu, also described as Sukhwant Singh @ Sonu, he being impleaded
as first respondent in the said claim cases. The claimants in the said
two cases also impleaded Santokh Singh, the registered owner of the
tanker as second respondent, in addition to the appellant / insurance
company (insurer) which had concededly issued an insurance policy
covering third party risk in respect of the tanker for the period in
question.
2. The inquiries were held in the said two cases, almost parallel to
each other, each leading to separate judgments being passed on
11.01.2013 accepting the case of the respective claimants for
compensation on account of the negligence on the part of the tanker
driver holding him and the said owner jointly and severally liable, the
compensation determined being made payable by the insurer
(appellant) due to its statutory and contractual liability.
3. It appears that in the course of the inquiries, the insurer had
taken the plea that the owner was obliged to prove that the tanker was
on road under a valid permit, the submission being that in absence of
such proof, it should be construed to be in breach of the terms and
conditions of the insurance policy, giving right to the insurer to seek
exoneration. The tribunal gave opportunities in each case to the
insurer to lead evidence. The proceedings, however, reveal that there
was utter negligence on the part of the insurance company to
prosecute its defence diligently. At one stage, it had even been set ex-
parte on account of the failure on the part of its representative or
counsel to appear. It is noted that the application for setting aside the
ex-parte proceedings was also moved but that too received similar
neglect as it remained pending, adjournments having been taken, with
the counsel even indicating at one stage his unavailability when the
case was listed, thus, holding the proceedings to ransom.
4. Be that as it may, eventually the insurance company examined
one witness, Sanjeev Srivastava (R3W1), its Manager (Legal), he
deposing on the strength of his affidavit (Ex. R3W1/A) on 30.08.2012,
his evidence having been taken on board on the file of the claim case
arising out of the death of Hari Om, note only being taken in the
proceedings in the other case of such evidence having been adduced.
5. Technically speaking, the insurance company was obliged to
lead evidence in both the cases independently as the same had not
been clubbed at any stage. Be that as it may, given the fact that the
tribunal did take a note of such evidence having come on record in the
other case, this court has considered the merit and effect of the said
evidence for purposes of both the cases.
6. It is noted that R3W1 Sanjeev Srivastava (Manager (Legal) did
depose about notice under Order XII Rule 8 of the Code of Civil
Procedure, 1908 (CPC) having been issued to the registered owner
Santokh Singh and the same having been discharged by post vide
receipt (Ex. R3W1/2). But the witness was conspicuously silent as to
the status of service of said notice. He would not speak about either
the delivery or return or even non-return of the postal article. It is not a
question of the opposite party putting a question to him to seek clarity
on this aspect. Burden was on the insurance company which was
claiming certain rights flowing from such material to prove all the
necessary facts. With this state of the evidence, it cannot be assumed
that notice had been duly served on the registered owner.
7. It does appear that in a third claim case (MACT 233/2009
Rakesh Bansal vs. Sonu and Ors.), decided by another tribunal by
judgment dated 21.10.2016, recovery rights were granted, the said
claim having also arisen out of the same accident. The said rights
assumably would have been granted on the basis of evidence led in
those proceedings of which the benefit cannot be taken in the separate
proceedings in hand.
8. In the above view, these appeals are found devoid of substance
and, accordingly, they are dismissed. A part of the amount of
compensation deposited by the insurance company in terms of interim
orders was released, the balance kept in fixed deposit receipts. The
balance amount shall now be released to the claimants.
9. The statutory amounts shall be refunded after proof is shown of
the awards having been satisfied.
R.K.GAUBA, J.
SEPTEMBER 08, 2017
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