National Insurance Company Ltd. Vs. Sanwar Mal and ors. - Court Judgment

Excerpt:
$~30 & 31 * in the high court of delhi at new delhi judgment delivered on:15. h april, 2013 % + cm(m) 382/2013 & cm nos. 5720/2013, 5721/2013 national insurance company ltd. ..... petitioner through: mrs.shantha devi raman, advocate. versus sanwar mal & ors. through: ..... respondents none. and + cm(m) 383/2013 & cm nos. 5722/2013, 5723/2013 national insurance company ltd. ..... petitioner through: mrs.shantha devi raman, advocate. versus sanwar mal & ors. through: ..... respondents none. coram: hon'ble mr. justice suresh kait suresh kait, j.(oral) cm nos. 5720/2013 in cm(m) no.382/2013 & 5722/2013 in cm(m) no.383/2013 (both for exemptions) exemptions allowed, subject to all just exceptions. the application stands disposed of. cm(m) nos.382 & 383 o”1. in both the petitions, noted above, the facts and the impugned order are the same, therefore, this court has decided to dispose of the same by this common judgment.2. facts of cm(m) no.382/2013 are being discussed inter-alia.3. the appellant/insurance company is seeking for setting aside of the judgment dated 08.11.2012 passed by the learned tribunal in misc. no. 01/10 in mact case/suit no. 26/2009, titled as sh. pankaj chauhan & ors. vs. sh. sanwar mal & ors., whereby the respondents/driver and owner were allowed to lead their evidence.4. learned counsel appearing on behalf of the appellant/insurance company has submitted that vide judgment dated 04.11.2009, the learned tribunal while granting recovery rights to the petitioner against respondent nos. 1 and 2 has observed as under:66. however, respondent number 3 has only raised a legal objection that the vehicle was being driven by respondent number 1 without a valid permit for delhi and without a valid fitness which is in violation of the mv act and rules thereunder, respondent number 3 is not liable to pay any amount as compensation to the petitioner. the fact that on the date of accident the offending vehicle was insured with respondent number 3 is not in dispute but the validity of the permit for delhi and validity fitness of the offending vehicle are in dispute.67. rw3 has also deposed that the permit for delhi and fitness of the offending vehicle were not valid on the date of accident. r3w1 has deposed that the respondent number 3 is not liable by virtue of the limitation as to use clause i.e. validity of the permit for delhi and validity fitness of the offending vehicle. he has admitted that the offending vehicle was insured with respondent number 3 on the date of accident. the permit and the fitness have been verified and found to be invalid.68. as this is a claim under the mv act and respondents numbers 1, 2 and 3 are jointly and severally liable to make the payment of compensation, in such a situation respondent number 3 has the right to recover the amount from respondents numbers 1 and 2 by taking appropriate steps but it cannot be absolved of its legal duty of paying the compensation of the petitioner.5. thereafter, respondent nos. 1 and 2 moved an application under order ix rule 13 cpc, which has been allowed by the learned tribunal vide its impugned order dated 08.11.2012.6. learned counsel for the respondent nos.1 and 2 have argued before the learned tribunal that they being illiterate persons, were not having the knowledge of repercussions of their non-appearance, hence, they could not contest their case properly. moreover, it is apprised to the learned tribunal that they are not the residents of delhi but hail from sikkar (rajasthan).7. it is further argued that they had sent their counsel sh. mohar singh, advocate to contest the claim as is apparent from his appearance on 04.06.2008, but he could not take further steps for contesting the claim. thereafter, pursuant to notice under order xii rule 8 cpc, respondent no. 1 had also appeared before the trial court on 22.09.2009.8. it was pointed out before the learned tribunal that the recovery rights were granted to the insurer as the insured pleaded that respondent nos. 1 and 2 have willfully committed breach of the terms and conditions of the insurance policy as they were not having the permit of the offending vehicle. it is clarified that their insurer had misled the court as they had a valid permit license to ply the vehicle within the jurisdiction of delhi and photocopy of the same was on record.9. learned counsel appearing on behalf of the petitioner/insurance company has submitted that despite knowing about pendency of the proceedings before the trial court, respondent nos. 1 and 2 failed to turn up and now after granting the recovery rights against them, they just wanted to run away from their liabilities. the very right of the insurance company to recover the amount from the driver and owner stood frustrated by the impugned order passed by the learned tribunal.10. the learned tribunal has observed that though respondent nos. 1 and 2 should have taken care of the present proceedings diligently and in fact they tried to contest the case as they had sent their counsel to attend the case as it is apparent from the appearance made by the said counsel on 04.06.2008. moreover, respondent nos. 1 and 2 have already filed photocopy of the permit issued by the transport authority kotputli, rajasthan to ply the vehicles from kotputli to delhi via haryana w.e.f. 04.02.2008 to 29.02.2008.11. keeping in view the above, the learned tribunal set aside the order dated 04.11.2009 whereby it permitted the respondent nos. 1 and 2 to establish their defence against the recovery rights granted to the petitioner/insurance company.12. in view of the observations made by the learned tribunal and in the facts and circumstances of the case, i do not find any discrepancy in the impugned order dated 08.11.2012 passed by the learned tribunal.13. with the aforesaid observations, both these petitions stand disposed of with no order as to costs.14. tcr be sent back. cm nos. 5721/2013 in cm(m) no.382/2013 & 5723/2013 in cm(m) no.383/2013 (both for stay) with the disposal of the petition itself, both these applications have become infructuous. the same are accordingly disposed of. suresh kait, j.april 15 2013 sb/rs

Judgment:
$~30 & 31 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:

15. h April, 2013 % + CM(M) 382/2013 & CM Nos. 5720/2013, 5721/2013 NATIONAL INSURANCE COMPANY LTD. ..... Petitioner Through: Mrs.Shantha Devi Raman, Advocate. Versus SANWAR MAL & ORS. Through: ..... Respondents None. AND + CM(M) 383/2013 & CM Nos. 5722/2013, 5723/2013 NATIONAL INSURANCE COMPANY LTD. ..... Petitioner Through: Mrs.Shantha Devi Raman, Advocate. Versus SANWAR MAL & ORS. Through: ..... Respondents None. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J.

(Oral) CM Nos. 5720/2013 in CM(M) No.382/2013 & 5722/2013 in CM(M) No.383/2013 (both for exemptions) Exemptions allowed, subject to all just exceptions. The application stands disposed of. CM(M) Nos.382 & 383 o”

1. In both the petitions, noted above, the facts and the impugned order are the same, therefore, this Court has decided to dispose of the same by this common judgment.

2. Facts of CM(M) No.382/2013 are being discussed inter-alia.

3. The appellant/Insurance Company is seeking for setting aside of the judgment dated 08.11.2012 passed by the learned Tribunal in Misc. No. 01/10 in MACT Case/Suit No. 26/2009, titled as Sh. Pankaj Chauhan & Ors. Vs. Sh. Sanwar Mal & Ors., whereby the respondents/driver and owner were allowed to lead their evidence.

4. Learned counsel appearing on behalf of the appellant/Insurance Company has submitted that vide judgment dated 04.11.2009, the learned Tribunal while granting recovery rights to the petitioner against respondent Nos. 1 and 2 has observed as under:66. However, respondent number 3 has only raised a legal objection that the vehicle was being driven by respondent number 1 without a valid permit for Delhi and without a valid fitness which is in violation of the MV Act and Rules thereunder, respondent number 3 is not liable to pay any amount as compensation to the petitioner. The fact that on the date of accident the offending vehicle was insured with respondent number 3 is not in dispute but the validity of the permit for Delhi and validity fitness of the offending vehicle are in dispute.

67. RW3 has also deposed that the permit for Delhi and fitness of the offending vehicle were not valid on the date of accident. R3W1 has deposed that the respondent number 3 is not liable by virtue of the limitation as to use clause i.e. validity of the permit for Delhi and validity fitness of the offending vehicle. He has admitted that the offending vehicle was insured with respondent number 3 on the date of accident. The permit and the fitness have been verified and found to be invalid.

68. As this is a claim under the MV Act and respondents numbers 1, 2 and 3 are jointly and severally liable to make the payment of compensation, in such a situation respondent number 3 has the right to recover the amount from respondents numbers 1 and 2 by taking appropriate steps but it cannot be absolved of its legal duty of paying the compensation of the petitioner.

5. Thereafter, respondent Nos. 1 and 2 moved an application under Order IX Rule 13 CPC, which has been allowed by the learned Tribunal vide its impugned order dated 08.11.2012.

6. Learned counsel for the respondent Nos.1 and 2 have argued before the learned Tribunal that they being illiterate persons, were not having the knowledge of repercussions of their non-appearance, hence, they could not contest their case properly. Moreover, it is apprised to the learned Tribunal that they are not the residents of Delhi but hail from Sikkar (Rajasthan).

7. It is further argued that they had sent their counsel Sh. Mohar Singh, Advocate to contest the claim as is apparent from his appearance on 04.06.2008, but he could not take further steps for contesting the claim. Thereafter, pursuant to notice under Order XII Rule 8 CPC, respondent No. 1 had also appeared before the Trial Court on 22.09.2009.

8. It was pointed out before the learned Tribunal that the recovery rights were granted to the insurer as the insured pleaded that respondent Nos. 1 and 2 have willfully committed breach of the terms and conditions of the insurance policy as they were not having the permit of the offending vehicle. It is clarified that their insurer had misled the Court as they had a valid permit license to ply the vehicle within the jurisdiction of Delhi and photocopy of the same was on record.

9. Learned counsel appearing on behalf of the petitioner/Insurance Company has submitted that despite knowing about pendency of the proceedings before the Trial Court, respondent Nos. 1 and 2 failed to turn up and now after granting the recovery rights against them, they just wanted to run away from their liabilities. The very right of the Insurance Company to recover the amount from the driver and owner stood frustrated by the impugned order passed by the learned Tribunal.

10. The learned Tribunal has observed that though respondent Nos. 1 and 2 should have taken care of the present proceedings diligently and in fact they tried to contest the case as they had sent their counsel to attend the case as it is apparent from the appearance made by the said Counsel on 04.06.2008. Moreover, respondent Nos. 1 and 2 have already filed photocopy of the permit issued by the Transport Authority Kotputli, Rajasthan to ply the vehicles from Kotputli to Delhi via Haryana w.e.f. 04.02.2008 to 29.02.2008.

11. Keeping in view the above, the learned Tribunal set aside the order dated 04.11.2009 whereby it permitted the respondent Nos. 1 and 2 to establish their defence against the recovery rights granted to the petitioner/Insurance Company.

12. In view of the observations made by the learned Tribunal and in the facts and circumstances of the case, I do not find any discrepancy in the impugned order dated 08.11.2012 passed by the learned Tribunal.

13. With the aforesaid observations, both these petitions stand disposed of with no order as to costs.

14. TCR be sent back. CM Nos. 5721/2013 in CM(M) No.382/2013 & 5723/2013 in CM(M) No.383/2013 (both for stay) With the disposal of the petition itself, both these applications have become infructuous. The same are accordingly disposed of. SURESH KAIT, J.

APRIL 15 2013 Sb/RS