Qatar Airways Q.C.S.C vs Bird Worldwide Flight Services ...
2018 Latest Caselaw 45 Del

$~5
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(COMM) 949/2016
QATAR AIRWAYS Q.C.S.C                             ..... Plaintiff
                 Through:              Ms. Marisha Shukla, Advocate.

                         versus

BIRD WORLDWIDE FLIGHT SERVICES INDIA PVT LTD..... Defendant
                   Through: Mr. Virender Mehta, Advocate with
                            Mr. Gautam Mehta, Advocate and
                            Mr. Tarak Saha, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
             ORDER

% 03.01.2018

I.A. No.2/2018 (for condonation of delay)

1. For the reasons stated in the application, delay of 25 days in

filing the O.A. is condoned.

I.A. stands disposed of.

O.A. No.1/2018

2. By this chamber appeal, the sole defendant in the suit impugns

the order of the Joint Registrar dated 10.11.2017 by which the Joint

Registrar has dismissed the application under Order 1 Rule 10 of Code of

Civil Procedure, 1908 (CPC) filed by the appellant/defendant for adding

CS(COMM) No.949/2016 page 1 of 4 National Insurance Company Ltd as a second defendant in the suit.

3. The subject suit is filed by the plaintiff seeking recovery of

money on account of damage caused to the plaintiff's aircraft by the

defendant. The defendant has pleaded in the present application as also in

the written statement that the defendant is insured for the event in terms of

an insurance policy taken out from the National Insurance Company Ltd.

Copy of this insurance policy has been filed with the documents of the

defendant and a prima facie reading of the same shows that in case there is

any loss caused to the defendant on account of any accident to the aircraft of

the plaintiff, then possibly the loss may have to be paid by the insurance

company. Basically the insurance company, namely National Insurance

Company Ltd is sought to be added as an additional defendant in the suit by

pleading joint and severe liability of the existing defendant with National

Insurance Company Ltd and ultimately taking over of liability of the

existing defendant by National Insurance Company Ltd.

4. Learned counsel for the plaintiff opposes the appeal however

counsel for the plaintiff has no answer to the fact that plaintiff is not in any

manner going to be prejudiced by adding National Insurance Company Ltd

CS(COMM) No.949/2016 page 2 of 4 as an additional defendant in the suit because by adding National Insurance

Company Ltd it is not as if that the liability of the existing defendant will go

away. Liability if fastened upon the existing defendant when the suit is

decreed will be joint and several of National Insurance Company Ltd with

the existing defendant. I may note that issue in favour of the defendant may

also be possibly covered in terms of Section 41 of the Contract Act, 1872

and the judgment of the Supreme Court reported as Kapur Chand Godha

Vs. Mir Nawab Himayatalikhan Azamjah AIR 1963 SC 250. To give

examples where insurance companies are added as defendants/respondents,

we can take reference to claims filed under the Motor Vehicles Act and

Employees Compensation Act.

5. Accordingly, since there is no prejudice to the plaintiff by

addition of National Insurance Company Ltd as an additional defendant in

the suit, impugned order of the Joint Registrar dated 10.11.2017 is set aside

and the National Insurance Company Ltd is added as a second defendant in

the suit. At the cost of repetition, it is clarified that this Court has made no

final observations one way or the other with respect to any claim of the

plaintiff on account of the addition of National Insurance Company Ltd or

CS(COMM) No.949/2016 page 3 of 4 that as if the existing defendant will not be liable (in addition to the liability

of the National Insurance Company Ltd) and which aspects will be decided

finally at the time of disposal of the suit.

6. O.A. is accordingly allowed. Amended memo of parties be

filed by the existing defendant within two weeks from today by making

National Insurance Company Ltd as defendant no.2 in the suit.

CS(COMM) No.949/2016

7. Let summons in the suit now be issued to the newly added

defendant no.2 on the existing defendant filing process fee, both in the

ordinary method as well as by registered post AD, returnable before the

Joint Registrar on 9th February, 2018, the date already fixed.

                                               VALMIKI J. MEHTA, J
JANUARY 03, 2018
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CS(COMM) No.949/2016                                                page 4 of 4