Madhya Pradesh High Court
Reliance General Insurance ... vs Varsha Kushwaha on 25 January, 2023
Author: Gurpal Singh Ahluwalia
1 M.P.No.2000/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 25th OF JANUARY, 2023
MISC. PETITION No. 2000 of 2019
BETWEEN:-
RELIANCE GENERAL INSURANCE
CO.LTD. THR. ITS AUTHORIZED
OFFICER AMIT SINGH HANDA
LOCAL OFFICE RELIANCE LIFE
INSURANCE COMPANY LIMITED, III
FLOOR AHUJA TOWER, 46, NAPIER
TOWN, JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANKALP KOCHAR- ADVOCATE)
AND
1. VARSHA KUSHWAHA W/O LATE
LALIT KUSHWAHA, AGED
ABOUT 30 YEARS, R/O
MANORAMA WARD, NEAR
NARSINGH MANDIR, BINA,
DISTT. SAGAR (MADHYA
PRADESH)
2. KRISH KUSHWAHA S/O VARSHA
KUSHWAHA, AGED ABOUT 9
YEARS, OCCUPATION:
THROUGH GUARDIAN MOTHER
VARSHA KUSHWAHA R/O
MANORAMA WARD, NEAR
NARSINGH MANDIR, BINA,
DISTT. SAGAR (MADHYA
PRADESH)
3. NIKHIL KUSHWAH S/O VARSHA
KUSHWAHA, AGED ABOUT 8
YEARS, OCCUPATION:
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
2 M.P.No.2000/2019
THROUGH GUARDIAN MOTHER
VARSHA KUSHWAHA R/O
MANORAMA WARD, NEAR
NARSINGH MANDIR, BINA,
DISTT. SAGAR (MADHYA
PRADESH)
4. VANDITA KUSHWAHA S/O
VARSHA KUSHWAHA, AGED
ABOUT 7 YEARS, OCCUPATION:
THROUGH GUARDIAN MOTHER
VARSHA KUSHWAHA R/O
MANORAMA WARD, NEAR
NARSINGH MANDIR, BINA,
DISTT. SAGAR (MADHYA
PRADESH)
5. SUNIL S/O RAMSEWAK
KUSHWAHA, AGED ABOUT 24
YEARS, R/O MANORAMA WARD,
NEAR NARSINGH MANDIR,
BINA, DISTT. SAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI J.K. CHOURASIYA-ADVOCATE ON BEHALF OF SHRI SHYAM
YADAV-ADVOCATE FOR RESPONDENT NO.2 )
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 227 of the Constitution of India has
been filed against the order dated 12.03.2019 and 18.02.2019 passed by
the II Additional Motor Accident Claims Tribunal, Khurai, District Sagar
(M.P.) in MACC No.2/2016 by which the right of the petitioner to lead
evidence has been closed and the prayer for stay of further the
proceedings was also rejected by order 18.02.2019.
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
2. The facts necessary for disposal of the present petition in short,
are that the respondent No.1 has filed a claim petition under Section 166
of the Motor Vehicle Act, which has been registered as MACC
No.02/2016. The petitioner is the Insurance Company. The petitioner has
not filed copy of the written statement and therefore, the date of filing
written statement and as to whether the petitioner had taken a defense
that the driving license of driver was fake or not is also not known.
3. It is submitted by the counsel for the petitioner that on 10.10.2017,
the petitioner filed an application under RTI before Regional Transport
Office, Nagaland to provide information regarding genuineness of the
driving license issued in favour of the respondent No.2. The reply was
received by the petitioner on 08.11.2017 pointing out that the so called
driving license was never issued in favour of respondent No.2.
Thereafter, the petitioner also cross examined the respondent No.2 in this
regard, which is evident from his deposition sheet dated 08.01.2019.
4. It is further submitted that again one more application was filed
under RTI on 14.02.2019, which was duly replied by the RTO, Nagaland
06.03.2019 pointing out that the driving license in question was never
issued in favour of the respondent No.2. However, on 18.02.2019 the
right of the petitioner to lead evidence was closed. The petitioner moved
an application for Order 18 Rule 17 CPC for grant of one more
opportunity to lead evidence to demolish the driving license relied upon
the respondent No.2. However, by the impugned order dated 12.03.2019,
the said application has been rejected.
5. It is submitted by the counsel for the petitioner that where valuable
rights are involved in a lis, then one more opportunity can be granted to
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
contesting party to lead evidence and to buttress his contentions the
counsel for the petitioner has relied upon the judgments passed by the
Supreme Court in the case of K.K. Velusamy v. N. Palanisamy reported
in (2011) 11 SCC 275 and in the case of Ram Rati v. Mange Ram,
reported in (2016) 11 SCC 296.
6. Per contra, the petition is vehemently opposed by the counsel for
the respondent No.2.
7. None for the respondent No.1.
8. Heard the learned counsel for the parties.
9. From the order dated 12.03.2019, it is clear that the claim petition
was filed in the year 2016 and on 10.04.2017, the respondent No.1 closed
his evidence. Thereafter, the case was adjourned for 09.05.2017,
30.08.2017, 12.09.2017, 26.09.2017 and 09.11.2017. The defendant did
not lead any evidence. Thereafter, it appears that on 08.01.2013, the
evidence of respondent No.2 was recorded and he was duly cross
examined by the petitioner. On 08.01.2019, itself the petitioner filed an
application seeking permission to examine Regional Transport Officer,
Nagaland. It appears that the claim tribunal granted an opportunity but in
spite of that neither the process fee was paid nor it was clarified by the
petitioner as to whether he wants to summon the said witnesses through
Court or not. Thereafter, the petitioner did not examine any witness.
Thereafter, case was fixed for 12.02.2019. Further, the claims Tribunal
did not close the right of the petitioner and fixed the case for 18.02.2019.
On 18.02.2019 also, the petitioner did not lead any evidence and
accordingly after closing the rights of the petitioner, the case was fixed
for final arguments. On 26.06.2019, an application under Order 18 Rule
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
17 CPC was filed, which has been rejected on 12.03.2019 by relying
upon the provisions of Order 17 Rule 1 CPC, which provides that more
than 3 adjournments shall not be granted and further that the petitioner
has not disclosed the name of the witnesses and the claim petition is
pending since 2016. It is the case of the petitioner that since the
respondent No.2 has relied upon a fake driving license, therefore, a
valuable right has accrued in favour of the petitioner to rebut the same in
the light of the reply received from the concerning officer under RTI Act.
10. The statement made by the counsel for the petitioner appears to
be very convincing but on deeper scrutiny it is clear that the petitioner is
guilty of delaying the disposal of the claim petition. In the impugned
order dated 12.03.2019, it is mentioned that on 18.01.2019, the petitioner
filed an application seeking permission to examine the Regional
Transport Officer, Nagaland and the said application was allowed but in
spite of that neither any process fee was paid nor it was clarified as to
whether the petitioner wants to summon that witness through Court or
not.
11. In order dated 18.01.2019, it was specifically mentioned that the
petitioner has filed an application under Order 16 Rule 2 CPC along with
original documents and he wants to examine the Regional Transport
Officer from Nagaland. The application was found to be bonafide and
accordingly it was allowed and it was directed that on payment of
process fee the summon be issued to witnesses. However, the counsel for
the petitioner did not clarify as to why the process fee was not paid by
the petitioner and why the petitioner did not avail the opportunity, which
was already extended to it.
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
12. Thus, it is clear that the petitioner was not serious in contesting the
claim petition specifically when even the copy of the written statement
has not been placed on record to show as to whether the petitioner had
ever claimed that the license relied upon by the respondent No.2 is fake
or not. Thereafter, the case was listed on 12.02.2019 and the case was
adjourned for 18.02.2019 and on the said date it was found that the
petitioner has neither paid process fee nor has kept the witness present
and accordingly the right of the petitioner to lead evidence was closed.
13. From the facts of case mentioned above, it is clear that the
petitioner itself is responsible for not prosecuting its case vigilantly and
whenever an opportunity was granted it was not availed and no reason
has been assigned as to why the petitioner did not pay the process fee as
directed by the trial Court by order dated 08.01.2019. In absence of any
reason for the same, this Court is of the considered opinion that the claim
Tribunal did not commit any mistake by closing the right of the petitioner
to lead evidence.
14. It is submitted by the counsel for the petitioner that only two
opportunities were granted to the petitioner, therefore, it cannot be said
that the petitioner is responsible for the delay.
15. The submission made by the counsel for the petitioner is shocking.
The claim petition was pending since 2016 and the claim petitioner had
already closed his evidence on 10.04.2017. The petitioner could not
pointed out any provision that every defendant is entitled to delay the
proceedings. Further more, when an opportunity was already granted to
the petitioner to pay process fee and summon the witness, then it was
obligatory on the part of the petitioner to explain as to why process fee
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
was not paid. In absence of any explanation it cannot be said that the
petitioner had any vested right to get the matter delayed. This Court is
conscious of the fact that justice delayed is justice denied. A person who
had suffered injury in an accident and had filed claim petition in the year
2016 is still waiting for outcome of his claim petition only because of the
fact that the insurer/owner as well as the insurance company are fighting
with each other on the question of fakeness/genuineness of the license.
The inter se dispute between the petitioner as well as respondent No.2
has nothing to do with the claim of the claim petitioner. The ultimate
sufferer of delay is the claim petitioner. Under these circumstances, this
Court is of the considered opinion that no mistake was committed by the
claims Tribunal by dismissing the application filed under Order 18 Rule
17 CPC.
16. At this stage, it is submitted by the counsel for the petitioner that
it is true that the petitioner did not avail the opportunity, which was
granted to it but the petitioner has to function through its officers and if
the counsel for the petitioner and OIC did not take matter seriously and
did not pay the process fee in compliance of order dated 08.01.2019, then
the petitioner may not be made to suffer. However it is also submitted
that the petitioner is also conscious of the fact that because of the delay
on the part of its officers and lawyer, the claim petitioner is also suffering
as claim petition is pending even after 6 long years from its institution.
Accordingly, it is submitted that in case if last opportunity is given to the
petitioner to keep the Regional Transport Officer, Nagaland present
before the claims Tribunal on payment of cost of Rs.25,000/-, his prayer
for last opportunity may be considered sympathetically.
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
17. As none appears for the respondent No.1/claim petitioner,
therefore, the submission made by the counsel for the petitioner with
regard to extension of one opportunity on payment of cost of Rs.25,000/-
can be accepted.
18. Accordingly, it is directed that in case the petitioner keeps the
Regional Transport Officer, Nagaland present before the claims Tribunal
on 13.02.2023 as well as also pays the cost of Rs.25,000/- then the claims
Tribunal shall record the evidence of the Regional Transport Officer,
Nagaland. Payment of cost shall be a condition precedent for
examination of Regional Transport Officer, Nagaland as a witness of the
petitioner. It is made clear that if the petitioner fails to keep the Regional
Transport Officer, Nagaland present by itself, then no further opportunity
shall be granted to the petitioner to examine the said officer. No
application for summoning the witness through Court shall also be
entertained because this liberty is being extended purely on sympathetic
ground because this Court has already held that legally the petitioner is
not entitled to lead evidence under the facts and circumstances of the
case.
19. Further, this claim petition is pending since 2016, therefore, the
claims Tribunal is directed to conclude the proceedings not later by
31.03.2023.
20. Further by order dated 14.05.2019, further proceedings before the
claims Tribunal were stayed and accordingly, the disposal of Claim
Petition has suffered further delay of more than 3 years, the petition is
finally disposed of with cost of Rs.20,000/-. This cost shall be in
addition to the cost which has been imposed for granting an opportunity
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
to examine the witness. The cost of Rs.20,000/- be deposited within one
month before the Registry of this Court.
(GURPAL SINGH AHLUWALIA)
JUDGE
vinay*
Signature Not Verified
Signed by: VINAY KUMAR
BURMAN
Signing time: 30-Jan-23
6:22:12 PM
