Delhi High Court
Col V K Kapoor vs The Oriental Insurance Company ... on 23 January, 2020
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23.01.2020
+ MAC.APP. 1112/2017
COL V K KAPOOR .....Appellant
Through: Mr. Anunaya Mehta, Mr. Rishab
Kapur and Mr. Akshay Deep Singhal,
Advocates.
versus
THE ORIENTAL INSURANCE COMPANY LTD & ORS
..... Respondents
Through: Mr. R.K. Tripathi, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. On the previous date, the following order was passed:-
"This appeal impugns the award of compensation dated
29.08.2017 passed by the learned MACT in MACT No.
3506/16 and the judgment dated 31.10.2013 passed by the
learned MACT in Suit No: 331/11, primarily on three grounds.
Firstly, that the service of notice was not effected insofar as it
was never sought to be served upon the noticee directly but by
the other person. In the absence of ability to serve upon the
noticee directly, the notice will not be considered as complete.
The learned counsel for the appellant relies upon the decision
of this Court in Keshav Sud vs. Ansals Buildwell Ltd. & Ors. in
CS (OS) 2797/2011 dated 23.04.2015, which, inter alia, reads
as under:
"13. xxx
14. Provisions of Order V of the Code relates to
service of summons. Order V, Rule 12 of the Code
enjoins that wherever it is practicable, service should
be made on the person concerned unless the person
has an agent empowered to accept service. Thus the
requirement under law is that attempt should be made
to serve notice personally on the party unless there is
an agent empowered to accept service. Order V, Rules
13 and 14 of the Code relate to service of summons on
an agent in certain circumstances. The said Rules,
however, are not applicable to the present case. Order
V, Rule 15 of the Code empowers the process server to
serve summons on any adult male member of the
family, if the party is found to be absent when service
of summons is sought to be effected on him at his
residence and there is no likelihood of the party being
found at the residence within reasonable time and he
has no agent empowered to accept service.
Explanation to the said Rules clarifies that a servant is
not regarded as a member of the family within the
meaning of Order V, Rule 15 of the Code. However,
while effecting service under Order V, Rule 15 of the
Code, process server has to record a specific finding
that the party is absent from his residence and there is
no likelihood of the party being found at the residence
within reasonable time. The service can be effected
only on an adult member of the family of the party.
Process server has therefore, to take care and caution
on noting down the name and details of the adult
member of the family.
20. However, any judicial decision, where
adequate opportunity is not given to a party to present
his version of the case, can result in injustice. The
Courts have to strike a delicate and difficult balance
between both the parties. It is difficult to prove and
establish the facts, allegations and counter allegations
without going deeper into the matter and giving
opportunity to the parties to examine witnesses and
crossexamine them. Sometimes it can become difficult
for the Court to decide the question of "sufficient
cause" as required under the provisions of Order IX,
Rules 7 and 13 of the Code without recording evidence,
thus delaying the matter and prolonging the litigation.
Weighing and balancing equities on both the sides and
with a view to expedite the progress of the case and not
to stall the same by asking the parties to lead evidence,
we feel it would be appropriate to allow the present
appeal and set aside the ex-parte order subject to
payment of costs of Rs. 50,000/- to the respondent. In
taking this view we are also keeping in mind the
principle of law that no person should be condemned
unheard and just and fair opportunity should be
granted. Normally, principles of natural justice require
that proceedings should not be conducted in the
absence of parties, unless there are compelling
circumstances, costs can be imposed to award
adequate compensation. Supreme Court in the case of
Rani Kusum v. Kanchan Devi and Ors. , while
examining the provisions of Order VIII, Rule 1 of the
Code has observed that processural law has the object
of advancing cause of justice. In adversarial system, a
party should be given adequate opportunity to
participate in the proceedings and processural law
should not be construed in a manner so as to leave the
party helpless. Processural law has to do substantial
justice and is always subservient to and is an aid of
justice. It should not be construed in a manner to
obstruct a party from pleading it's case and
representing himself. Keeping these principles in mind
we feel that substantial justice will be done in case we
allow the appellant to appear in the matter subject to
payment of costs as aforesaid. This we feel will do
substantial justice. We may mention here that the
appellant is already appearing in the suit and the case
has been fixed now for cross-examination of the
witnesses of the appellant who have filed affidavit by
way of evidence. We also find that after the appellant
was proceeded against ex-parte, the respondent had
taken a long time to file affidavit by way of evidence of
his witnesses. The matter was repeatedly adjourned at
the request of the respondent herein."
The learned counsel for the applicants further
submits that Process Server's report is deficient with
respect to the particulars as required in law for
effecting service; therefore, it could not be deemed that
service had been effected. It is the applicant's case that
service was sought to be effected on 21.12.2011 and on
02.01.2012, but it could not be done so, as the status of
the defendant was stated to be "not found" and the
lessee had informed the process server that defendant
No. 2 stays in Oman; another service sought to be
effected through Speed Post dispatched on 24.12.2011;
however, it was not delivered on account of insufficient
address; the third mode of service was sought to be
effected through Power of Attorney holder of defendant
No.2 at Ghaziabad; however, it was not served upon
the said PoA holder but through his wife on
10.12.2011; the wife is neither authorized by the POA
holder in this regard nor can she be recognised in law
as an agent of D-2; furthermore, there is no noting in
the service report that the POA holder of D-2 was not
likely to be available at the aforesaid address in the
near future; hence, there was neither any occasion nor
justification to serve the summons upon the spouse of
the POA holder. Apropos the service report upon
defendant No.6 and defendant No.3, it is submitted that
summons were received by their sister-in-law and
daughter-in-law respectively. Therefore, the learned
counsel for the applicants submits that there is no
service in the eyes of law, if a notice/summons is
served upon a person not authorized to receive it or
otherwise when the justification for serving it on a
family member is not recorded by the process server. It
is therefore, contended that the order dated 04.01.2012
should be set aside.
.....
....
In rebuttal, Mr. Mehta the learned counsel for
the applicants submits that the Process Server's report
states upon whom the summons was served, i.e. the
wife of the agent of defendant No.2; the only difference
between defendant No.2 and defendant Nos.3 & 6 is
that service was not personally effected on them but
through their daughter in law on 29.11.2011 and sister
in law on 31.11.2011 respectively; that neither of the
defendants i.e. defendant Nos.3 and 6 have any agent
in India; that on 29.11.2011, D-3 was not in India and
could return only on 30.11.2011, a day thereafter, but
the service was not in terms of the dicta of this Court in
Renu Sharma (supra) i.e. the Process Server did not
ascertain whether the noticee would not be available
within a reasonable time; therefore, the service cannot
be deemed to have been effected as per the requirement
of law. It is further submitted that there is no period of
limitation prescribed in law for moving an application
under Order 9 Rule 7 of the CPC. He further submits
that indeed, CS (OS) No.2363/2008 was dismissed on
19.11.2013 whereas the present applications were filed
on 21.11.2013.
This Court is of the view that according to the
dicta of this Court in Renu Sharma strict compliance of
the requirements of Order V Rule 15 CPC has to be
ensured, otherwise the party concerned could be
condemned without being heard. The notice was to be
served upon the noticee and not on anyone else; the
occasion for serving it upon an adult member of the
noticee's family, residing with him would arise only
when it was ascertained by the process server that
there is no likelihood of the noticee being found at the
residence within a reasonable time. Service of notice
on anyone else, in breach of the prescribed procedure
is no service; and it would result in injustice. In the
interest of fairness and justice, every party should be
given full opportunity to put forth its case. This
principle would be squarely applicable to the present
case when the law stipulates service in a particular
way and that mode ought to be followed. Insofar as the
purported service by the process server was not in
compliance with Order V Rule 15 of the CPC, i.e., he
failed to record why the service was not effected upon
the concerned defendant but on some other person, it
would not be deemed due service in law....."
Secondly, it is argued that for the insurer to get
discharged from any liability apropos the payment of
compensation, the onus is on the insurer to first prove that the
driving licence of the driver of the offending vehicle was fake
and/or that the owner knew this fully well and yet permitted
the driver to ply the said vehicle. He relies upon the dicta of
the Supreme Court in National Insurance Co. Ltd. vs. Swaran
Singh & Ors., (2004) 3 SCC 297, which, inter alia, held as
under:
"Where the driver's licence is found to be fake
92. It may be true as has been contended on behalf of
the petitioner that a fake or forged licence is as good as no
licence but the question herein, as noticed hereinbefore, is
whether the insurer must prove that the owner was guilty of
the wilful breach of the conditions of the insurance policy or
the contract of insurance. In Lehru case [(2003) 3 SCC 338 :
2003 SCC (Cri) 614] the matter has been considered in some
detail. We are in general agreement with the approach of the
Bench but we intend to point out that the observations made
therein must be understood to have been made in the light of
the requirements of the law in terms whereof the insurer is to
establish wilful breach on the part of the insured and not for
the purpose of its disentitlement from raising any defence or
for the owners to be absolved from any liability whatsoever.
We would be dealing in some detail with this aspect of the
matter a little later.
...
...
99. So far as the purported conflict in the judgments
of Kamla [(2001) 4 SCC 342 : 2001 SCC (Cri) 701]
and Lehru [(2003) 3 SCC 338 : 2003 SCC (Cri) 614] is
concerned, we may wish to point out that the defence to the
effect that the licence held by the person driving the vehicle
was a fake one, would be available to the insurance
companies, but whether despite the same, the plea of default
on the part of the owner has been established or not would be
a question which will have to be determined in each case."
Lastly, the learned counsel for the appellant argues that
in its written statement there is not even a whisper by the
insurance company, doubting the veracity of the driving
licence. He submits that in the absence of a case being set up
in the first place apropos the driving licence being fake, the
owner and the driver of the vehicle had no occasion to contend
otherwise. He further contends that the insurer has also not
proven that the driving licence was fake. Therefore, in the
absence of any such evidence to that effect, anything to doubt
the veracity of the driving licence and to conclude otherwise, it
would be an error in law."
2. The learned counsel for the appellant contends that in the Written
Statement, the insurer has denied the involvement of the driver in the motor
accident. He submits that when the identity of the driver is in doubt, no
liability could possibly be apportioned either upon the driver/respondent no.
5 or against the owner; that if the very involvement of the said driver was
doubted, then there was no question of his driving licence being verified for
its genuineness. More significantly, since the owner was not effectively
served, he was deprived of the rightful defence, that he had examined the
driving licence presented by the prospective driver and tested his driving
skills before employing him. In other words, having done so, he would have
the benefit of the dicta of the Supreme Court in: (i) United India Insurance
Co. Ltd. v. Lehru, (2003) 3 SCC 338, (ii) Pepsu Road Transport
Corporation vs. National Insurance Company (2013) 10 SCC 217 and (iii)
National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297.
3. It is argued that: (a) this is the dual test, which the owner of the
vehicle has to plead in such matters; (b) the presumption that the owner
permitted the driver to ply the vehicle despite knowing that the said licence
was fake, is ill-founded, because the insurer has not taken such plea either in
his Written Statement or his Affidavit. Therefore, the presumption would be
erroneous.
4. In the Written Statement of the insurer, it is averred that since it did
not know as to whether respondent no. 1 was actually driving the vehicle,
they could not comment on the issue and if he were the driver then the
driving licence could be produced by him. However, the validity and
genuineness of the driving licence would need to be verified first. The
insurer has averred as under:-
"2. That without prejudice to the above and without
admission of any liability, unless and until, it proved that the
respondent No. 1 on 12.07.2008 as alleged in the petition is
the diver of offending vehicle and while driving that offending
vehicle(BUS) bearing REGD. NO. DL-1PB-3720 was holding
a valid and effective driving license as well badge required as
per Motor Vehicle Act to drive the type of vehicle involved in
the alleged accident, no liability can be imposed and attached
on the answering respondent. Also there should be valid
permit at the time of the accident.
---
---
16. That the contents of para 16 of the petition is denied
for want of knowledge. The petition be put to strict proof of the
same. It is respectfully submitted that the answering
respondent does not have the knowledge as to who was the
real driver of the alleged offending vehicle bearing Regd. No.
DL-1PB-3720 alleged to be involved in the alleged accident on
the alleged date and time and also whether the alleged driver
driving the said offending vehicle was holding valid and
effective driving licence required as per M.V Act to drive the
type of vehicle involved in the alleged accident. The petitioner
be put to strict proof of the contentions raise in this para."
5. The learned counsel for the appellant contends that there is no
assertion anywhere in the insurer's pleadings that there was breach of a
policy condition. In effect, the breach would arise only if the vehicle was
being driven by a person who was not holding a valid driving licence at the
time of the motor accident, provided that the owner knew fully well that the
said driving licence was fake/invalid. The appellant also contends that right
of recovery granted to the insurance company against the appellant/owner is
erroneous.
6. In view of the above, the impugned order is set aside. The case is
remanded to the learned Tribunal. The parties shall appear before the
learned Tribunal on 24.02.2020. The learned counsel for the appellant
submits that the appellant is an 85 years old senior citizen and in the twilight
years of his life, and would like to see a closure of this case.
7. In the circumstances, the learned Tribunal is requested to expedite the
hearing of the case to determine the aforesaid issues and dispose-off the
case, preferably within two months, from the date when the case is next
listed before it. The learned counsel for the parties assure the Court that they
would not seek any adjournment and will assist the learned Tribunal
promptly on each date whenever the case will be listed.
8. The requisite monies have been deposited by the appellant and shall
be kept in an interest bearing FDR subject to further orders.
9. The appellant is given the right of filing a Written Statement.
10. The statutory amount, alongwith interest accrued thereon, be returned
to the appellant.
11. The appeal stands disposed-off in the above terms.
NAJMI WAZIRI, J
JANUARY 23, 2020
RW
