Delhi High Court
Narender Singh vs National Insurance Co Ltd on 20 September, 2017
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th September, 2017
+ MAC.APP. 345/2016
NARENDER SINGH ..... Appellant
Through: Mr. Syed Hasan Isfahani, Adv.
Versus
NATIONAL INSURANCE CO LTD ..... Respondent
Through: Mr. Arihant Jain for Ms.
Shantha Devi Raman, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On the accident claim case (suit no. 682/2008) instituted by one
Asha Rani seeking compensation under Section 166 of Motor
Vehicles Act, 1988 on account of injuries statedly suffered by her
husband Lal Chand, they proving fatal due to motor vehicular accident
that had occurred on 03.01.2007 at about 4:20PM involving negligent
driving of Tata 407 bearing registration no. DL 1LC 1460, the
tribunal, by judgment dated 08.05.2009, made an award of
compensation in the total sum of Rs. 74,360/- with interest directing
the respondent insurance company to pay the same in the first
instance, it concededly being the insurer against third party risk in
respect of the said vehicle but granted it recovery rights against the
appellant herein, he admittedly being the registered owner of the said
vehicle. The recovery rights were granted in view of the evidence
adduced by the respondent, inter alia, through Naveen Kumar
(R3W1), an official of State Transport Authority, Delhi to the effect
that the vehicle was not covered by a valid permit as on 03.01.2007,
the date of the accident. It appears that inspite of opportunity and
notice, the appellant did not participate in the proceedings before the
tribunal.
2. Be that as it may, at the stage of execution, the appellant moved
objection petition on the basis of which the executing forum held
further inquiry. In the said further inquiry, at the instance of the
appellant, another official from the state transport authority was
called, he being Rajan Thomas (JD1W1). The testimony of JD1W1
clearly showed that the vehicle was initially registered in the name of
Birender Kumar in whose name a valid permit did exist for the period
ending with 05.08.2006, the vehicle and the permit having been
transferred in the name of the appellant w.e.f. 11.02.2002 and that a
valid permit came to be issued in the name of the appellant from
11.02.2002 which was valid upto 10.02.2007 which undoubtedly
would cover the date of accident as well.
3. The tribunal, however, by order dated 19.09.2014 took the view
that such evidence could not be taken note of at the stage of execution,
implying that the executing forum could not go behind the decree. If
that were the view to be taken by the executing forum, one fails to
understand why the objection petition of the appellant was put to
inquiry in the first place.
4. Be that as it may, the evidence led during the execution
proceeding would confirm that a valid permit did exist in the name of
the appellant on the date of the accident.
5. While the above evidence clearly brings home the contention of
the appellant that a valid permit did exist in his name for the vehicle in
question for the date on which the cause of action arose, it also cannot
be ignored that the appellant did have opportunity to show the correct
facts during the inquiry before the tribunal. In fact, the evidence led
by the insurance company also shows that it had issued a notice under
Order XII Rule 8 of the Code of Civil Procedure, 1908 (CPC) to the
appellant calling him upon to produce the permit, but there was no
response, this having been brought on record through K.K. Arora
(R3W2).
6. The failure on the part of the appellant to effectively assist the
tribunal at the time of the inquiry added to the burden of the insurance
company which all along was searching for the valid permit and was
making efforts to find the correct state of affairs, inter alia, by
summoning witnesses. The argument of the counsel for the appellant
that such defence was not taken in the pleadings by the insurance
company is found to be factually incorrect as paras 4 and 5 of the
written statement of the insurance company did raise the issue relating
to the permit such being one of the defences available to it in law.
7. Section 168(1) of the Motor Vehicle Act 1988 gives the
discretion to the tribunal, and consequently also to the appellate
forum, to specify the amount which is to be paid by either the insurer
or the owner or the driver of the vehicle involved in the accident or by
all or any of them. In the given facts and circumstances, while the
appellant may be entitled to be indemnified by the insurance company,
in view of neglect on his part by not rendering proper assistance at the
inquiry it must entail a direction that he shall bear the interest liability
which has been added to the burden of the insurance company.
Ordered accordingly.
8. Thus, the appeal is disposed of with directions that the
insurance company shall bear the liability to pay the principal amount
of compensation, the amount paid by it to the claimant towards the
interest liability being recoverable from the appellant.
9. The insurance company shall notify to the appellant the amount
paid by it to the claimant on account of interest by appropriate
communication within thirty days whereupon it shall be the
responsibility of the appellant to pay the same to the insurer within
thirty days of receipt of such communication. In the event of default
on the part of the appellant, the insurance company shall have the
liberty to take out appropriate proceedings before the tribunal.
10. The statutory amount deposited by the appellant shall presently
be retained. In the event of insurance company being constrained to
recover the liability of the appellant in above terms through the
process of the tribunal, it shall be made available to the tribunal for
satisfaction of the said claim of the insurance company. Conversely,
the said amount shall be refundable to the appellant upon proof being
shown of the direction to pay the amount of interest in favour of the
insurance company having been satisfied.
R.K.GAUBA, J.
SEPTEMBER 20, 2017
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