Delhi High Court
Satish Tipnis vs New India Assurance Co. Ltd. & Ors on 27 September, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th September, 2017
+ MAC APPEAL No. 160/2016
SATISH TIPNIS ..... Appellants
Through: Mr. Sanjay Gupta, Adv.
versus
NEW INDIA ASSURANCE CO. LTD. & ORS..... Respondents
Through: Mr. Pankaj Seth, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By the appeal at hand, the appellant, he being the registered
owner of the offending vehicle seeks to assail the recovery rights
granted against him in favour of first respondent (insurer) by the
motor accident claims tribunal.
2. The appellant is the registered owner of the motorcycle bearing
registration no. DL 8SAK 0529, which was involved in the accident
that occurred on 13.05.2007 resulting in death of Rajesh Kumar that
gave rise to accident claim case instituted by the second respondent, it
(case no. 73/2014) resulting in judgment dated 30.10.2015. There is
some material on record showing that the appellant had handed over
the said motorcycle to his employee M. Priya Swami (R1W3), who
was examined at the inquiry before the tribunal, against a formal letter
of authorization for its use. It further appears that R1W3, during the
inquiry, by his testimony, claimed that his relative, P. Swami (third
respondent), had taken away the motorcycle without his consent and
the accident having occurred at the time of such unauthorized use by
the third respondent.
3. The tribunal has returned a finding that third respondent was
negligent and, therefore, holding him to be the principal tortfeasor.
The motorcycle was admittedly insured with the first respondent. It
had contested the proceedings before the tribunal on the ground that
the third respondent was not holding a valid or effective driving
licence. While the insurer tried to prove this assertion by referring to
the fact that there had been no response by the appellant to a notice
sent under Order 12 Rule 8 CPC, the appellant had relied on the fact
that R1W3 to whom the vehicle had statedly been given was a person
who was holding a valid or effective driving licence and, thus, he
having exercised due diligence.
4. In the facts and circumstances, it would need to be examined as
to whether M. Priya Swami (R1W3) would also be liable, since it was
he who had the effective control over the vehicle on the crucial date.
Further, the continued responsibility of the appellant, he being the
registered owner of the vehicle, as indeed of the insurer, would need to
be re-adjudicated against the backdrop of facts wherein the third
respondent is stated to have taken the vehicle out of the possession of
the person entrusted with him, without his consent, it possibly
amounting to theft.
5. It has been submitted at the hearing both by the appellant and
the insurer, through their respective counsel, that the award in favour
of the claimant has already been satisfied. While the limited inquiry
into the above issue is being remitted, it shall not be construed as re-
opening of the inquiry into the claim of the second respondent.
6. The appellant, the first respondent and the third respondent are
directed to appear before the tribunal for further proceedings in above
light on 30th October, 2017. In view of the observations recorded
above, the tribunal shall treat M.Priya Swami (R1W3) as having been
impleaded as additional respondent to such proceedings. Before
proceeding further, the tribunal shall give an opportunity to the insurer
and to the appellant to incorporate suitable amendments to their
existing pleadings. Needless to add, the additional respondent
M.Priya Swami shall also be called upon to file his reply, if any.
7. The right of the insurer to recover the amount of compensation
paid by it to the claimant shall be regulated in accordance with the
conclusions reached by the tribunal in the aforesaid further inquiry.
The evidence already on record will also be considered in addition to
such other evidence as may be adduced hereinafter.
8. The impugned judgment insofar as it granted recovery rights
against the appellant is presently set side, the issue having been
revived for re-adjudication.
9. The statutory deposit made shall presently be refunded
10. The appeal is disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 27, 2017
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