$~20 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:
1. t August, 2017 + MAC.APP. 468/2015 and CM APPL.10473/2015 (stay) M/S. SNEH TOURIST CORPORATION ..... Appellant Through: Mr. Ashok Popli, Advocate versus FULL KUMARI DEVI & ORS. (THE NEW INDIA INSURANCE CO. LTD.) ..... Respondent Through: Mr. Manish Maini, Adv. for claimants. Mr. Tarun Sharma, Adv. for R-7. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA JUDGMENT (ORAL) By this appeal, the appellant seeks to assail the judgment dated 1. 02.07.2014, whereby the tribunal granted recovery rights to the insurance company and also the order dated 29.04.2015, whereby the application under Order IX Rule 13 CPC was dismissed.
2. On 06.09.2011, a motor vehicular accident statedly occurred involving bus bearing registration no.DL-1PB-2959 (hereinafter “the bus”), the appellant herein being the registered owner thereof. The accident is stated to have resulted in death of Naresh Kumar, son of the first and second respondents and the sibling of third to fifth MACA4682015 Page 1 of 7 respondents (collectively, “the claimants”). The police registered FIR No.266/2011 in Police Station Anand Vihar and submitted a Detailed Accident Report (DAR) in the Motor Accident Claims Tribunal (the tribunal) on 07.10.2011. The proceedings recorded by the tribunal on the said DAR reflect presence of the investigating police officer ASI Ompal and of the second respondent (Suresh Ram), father of the deceased, present with his counsel. The tribunal took note of the background facts relating to the accident and of investigation into FIR carried out till then and adjourned the case for further proceedings on 02.12.2011.
3. On 29.10.2011, the claimants submitted a petition seeking compensation under Section 166 of the Motor Vehicles Act, 1988 impleading one Himmat Singh as first respondent describing him as the driver of the bus, this in addition to the appellant impleaded as second respondent and New India Insurance Company Limited (the seventh respondent herein) as the third respondent. The proceedings recorded on 29.10.2011 by the tribunal reflect the claim petition was clubbed with DAR already registered and adjourned it for the same date (02.12.2011).
4. The claim petition (registered as Suit No.338/2011) came up before the tribunal on 02.12.2011. The tribunal recorded the following proceedings :-
"“02.12.2011 Present: Ms. Pooja Goel Advocate on behalf of petitioner. MACA4682015 Page 2 of 7 None for R-1 and R-2. Ms. Shalini Upadhaya Advocate on behalf of Insurance Company. Fresh petition filed today, copy supplied. Advance copy of written statement be supplied within 15 days. Now to come up for filing of WS and for settlement of issues for 09.02.2012.” 5. On 9.02.2012, the proceedings recorded by the tribunal reflect the presence of Himmat Singh, the person described as the driver of the bus (he being sixth respondent in the appeal) in addition to the counsel for the insurance company. The tribunal adjourned the matter for filing of the written statement and for settlement of issues after passing an interim award under Section 140 of the Motor Vehicles Act, 1988 directing the insurance company to pay.
6. The subsequent proceedings show that written statement was filed by the insurance company (third respondent before the tribunal). Neither Himmat Singh, the person described as the driver, nor the appellant, it being the registered owner of the bus, are shown to have participated in the subsequent proceedings which led to judgment dated 02.07.2014 being passed whereby finding was returned to the effect that the accident had been caused due to negligent driving of bus by Himmat Singh and compensation in the sum of Rs.11,75,472/- was awarded, the insurance company being directed to satisfy the same. MACA4682015 Page 3 of 7 7. During the course of contest on the claim petition, the insurance company had taken the defence that there was breach of terms and conditions of the policy as Himmat Singh was not holding a valid or effective driving licence. The insurance company led evidence by examining an official from Regional Transport Officer, Almora (R3W1) to prove that the licence purported to be of Himmat singh was not valid. Reliance was also placed, through the testimony of an official of insurance company (R3W2), on notices under Order 12 Rule 8 of the Code of Civil Procedure, 1908 having been issued and served on the said Himmat Singh and on the appellant company with the submissions that there was no response. The tribunal returned finding that there was breach of terms and conditions of the policy as Himmat Singh was shown by the material submitted to be holding a driving licence which was valid only for light motor vehicle (LMV) which could not be availed to claim competence to drive a bus. The tribunal, thus, held that there was breach of terms and conditions of the policy and granted recovery rights to the insurer, inter alia, against the appellant (the registered owner ).
8. It is stated that the insurance company has already satisfied the award by making payment to the claimants though, in terms of the directions in the impugned judgment substantial part of the compensation is lying in fixed deposit receipt which had been taken out.
9. The appellant, after being served with the notice in the execution proceedings that were taken out by the insurance company MACA4682015 Page 4 of 7 to enforce the recovery rights, moved an application under Order IX Rule 13 CPC pleading primarily that it had no notice of the proceedings arising out of the claim petition. The said application was rejected by the tribunal by order dated 29.04.2015 on the file of execution case no.31/2014. Pertinent to note here that in the said application, one of the contentions urged by the appellant was that the bus in question had been given in possession and control of one Pappu Jain rather than it being driven by Himmat Singh. It is also the contention of the appellant that the said Pappu Jain held a valid and effective driving licence.
10. Having heard the learned counsel on all sides, this court finds that the tribunal has failed to exercise proper caution or follow the procedure. There are no proceedings recorded issuing notice of show cause to the appellant either on the DAR or on the claim petition at any stage. The learned counsel for the insurance company pointed out that, in the DAR (Ex.PW-1/6), the investigating police officer had indicated (in column six) that the driver and owner were being produced before the tribunal along with DAR. Though this seems to be import of the DAR, the proceedings of the tribunal do not confirm this to be a fact. There is nothing to show that the appellant had been informed of obligation to appear or being bound down for such purposes. Even if Himmat Singh is shown to have been present on some of the subsequent dates of hearing before the tribunal, such presence by itself also led to be inference that the appellant had been made aware of the pendency of the claim proceedings in the tribunal. MACA4682015 Page 5 of 7 11. For the foregoing reasons, the impugned judgment in so far as it holds the appellant vicariously responsible cannot be upheld. For the same reasons, in absence of proper opportunity being given to the appellant to contest the defence taken by the insurance company, the recovery rights also as granted by the impugned judgment cannot be sustained. In fact, in absence of show cause notice having been issued or served, either on the DAR or on the claim petition, the plea of the appellant being that it was some other person who was at the wheel of the bus would impel the court to conclude that even the issue of negligence will have to be re-adjudicated.
12. Thus, the impugned judgment is set aside. The inquiry before the tribunal is revived. The appellant is hereby served with show cause notice on the claim petition, and the DAR earlier submitted. It shall be obliged to file its written statement, if it seeks to contest, with the tribunal within thirty days of the date of appearance of the parties now being fixed. After such opportunity has been availed by the appellant, liberty also being given to the other parties to claim proceedings to submit additional pleadings, if any, the tribunal will hold fresh inquiry in which each party will be entitled to lead evidence, in the case of claimants and insurer it being in the nature of additional evidence. Before proceeding further, the tribunal will also consider the necessity of impleading the person mentioned by the appellant herein to be at the wheel of the bus at the relevant point of time as additional respondent, this, of course, without prejudice to the contentions of the other parties. MACA4682015 Page 6 of 7 13. In this view, the tribunal may also apply its mind to reframe the issues or frame additional issues.
14. The amount already disbursed to the claimants will be subject to adjustment as per the fresh adjudication to be reached by the tribunal. The amount lying in fixed deposit, however, will be presently refunded to the insurance company along with interest accrued thereupon.
15. The amount of Rs.2 lac and the statutory deposit made by the appellant (registered owner of the bus) will be passed on by the registry to the tribunal, which shall retain it in an interest bearing fixed deposit account in a nationalized bank, initially for a period of six months with provision for auto-renewal, to be availed, in case any liability is fastened on the said party. Of course, in the event of liability being placed at the door of the insurance company, such amount shall be refunded.
16. The parties shall appear before the tribunal on 31st August, 2017.
17. With these observations, the appeal along with pending application stands disposed of.
18. Dasti. AUGUST01 2017 vk R.K.GAUBA, J.
MACA4682015 Page 7 of 7