Joginder Kumar vs National Insurance Company Limited And Others

Sanjeev Kumar, J

This appeal by Joginder Kumari, the owner of public service vehicle, a Matador bearing Regd. No.9774-JK02H [ "offending vehicle"] is directed against the award dated 4th July, 2002 passed by the Motor Accident Claims Tribunal, Jammu ["the Tribunal"] in file No.277/Claim entitled Shakuntla Devi and others v. National Insurance Company Limited and others. The appeal is delayed by 3423 days, hence an application for condonation of delay.

The delay has been sought to be explained by the appellant contending, inter alia, that in the claim petition filed before the Tribunal, the claimants had given incomplete address of the appellant and, therefore, the registered notice sent to her came to be returned with the endorsement "incomplete address". It s submitted that instead of directing the claimants to file complete address and issuing fresh notice to the appellant, the Tribunal permitted the claimants to serve the appellant through substituted service. A notice in this regard was published in the daily newspaper "State Times" in its edition dated 15th February, 2000. Since the "State Times" has a limited circulation and, therefore, the appellant could not know about such notice published in the aforesaid newspaper.

On the basis of substituted service, ex-parte proceedings came to be initiated against the appellant by the Tribunal on 27th February, 2000. The claim petition was, however, contested by the respondent-Insurance Company. The Tribunal passed an ex-parte award against the appellant and directed the Insurance Company to pay a sum of Rs.3,57,044/- along with pendente lite and future interest @ 9% per annum to the claimants with liberty to recover the same from the appellant. The award of the Tribunal was also not served upon the appellant. It is further pleaded that against the award passed by the Tribunal, the Insurance Company preferred an appeal i.e. CIMA No.44/2003, which was dismissed by this Court on 3rd April, 2003 at the threshold without even putting the appellant and driver to notice. The appellant complains that even at that point of time, she could not know that an ex-parte award had been passed by the Tribunal against her. Since the Tribunal in its award had permitted the respondent-Insurance Company to pay the awarded compensation to the claimants and recover the same by filing execution petition, consequently on the dismissal of appeal, the Insurance Company paid the compensation to the claimants and in terms of the award, as upheld by the High Court, filed execution proceedings before the Tribunal.

The Tribunal issued process for execution and this was somehow served upon the appellant. It is the further case of the appellant that after receipt of the notice in execution, the appellant engaged a lawyer to file application for setting aside of the ex-parte award but the advocate engaged, who had promised to intimate the appellant about the proceedings, failed to attend the Court and as a result the application filed by the appellant for setting aside the ex-parte award was dismissed. This dismissal of her application was not made known to the appellant. The Tribunal proceeded further and issued non-bailable warrant against the appellant in execution of the award. The appellant engaged another lawyer to file an application for setting aside ex-parte award but when he was made known that a similar application filed earlier on behalf of the appellant had already been dismissed, the newly engaged lawyer withdrew the second application on 06.01.2012. It is pleaded that left with no option and finding that ex-parte award was contrary to the settled legal position, the appellant was constrained to approach this Court. It is submitted that with a view to avoid judgment of this Court in CIMA No.44/2003, the appellant filed an application for re-hearing of the appeal along with an application for condonation of delay. The appellant even filed a review petition that, too, along with application seeking condonation of delay.

With a view to lay challenge to the impugned award, the appellant filed the instant appeal against the ex-parte award along with application for condonation of delay. It is in these circumstances, the appellant has sought to explain the huge delay of 3,423 days in filing the appeal.

The application for condonation of delay is resisted by the respondent-Insurance Company. It is claimed that the appellant has failed to substantiate any sufficient cause for such a huge delay in filing the appeal. It is submitted that the story projected by the appellant in the application is concocted one and devised only to justify, otherwise unjustifiable delay of 3,423 days. It is submitted that the appellant was all along aware about the filing of the claim petition, yet decided not to contest, perhaps, believing that the Insurance Company will meet the responsibility to pay compensation, if any, determined by the Tribunal.

Having heard learned counsel for the parties and perused the record, I am of the view that in the given facts and circumstances obtaining in the case, there is sufficient explanation tendered by the appellant to the delay. I am aware that the appeal is delayed by 3423 days, which, by all means, is a huge delay, but this Court cannot lose sight of the fact that the address of the appellant given by the claimants in the claim petition was incomplete and it is because of the incomplete address, registered notice sent to the appellant had come back with the endorsement "incomplete address". The Tribunal, without getting the fresh address of the appellant from the claimants, proceeded to serve her through substituted service. The newspaper "State Times" in which the notice was published, admittedly, did not have sufficient circulation at the relevant point of time and it is not one of the largest circulated daily even as on today. The appellant being a poor and illiterate lady may not have come across the publication. It is in these circumstances, she came to be proceeded ex-parte by the Tribunal. Unfortunately, when the appeal was preferred by the Insurance Company against the award, the Court decided the same at the motion hearing stage without putting the appellant and driver of the offending vehicle to notice.

Be that as it is, this Court simply dismissed the appeal vide its judgment dated 03.04.2003, though the learned Judge erroneously recorded that there was modification of the award.

To top it all, when the appellant was somehow served in the execution proceedings, the lawyer engaged by her did not pursue the application for setting aside the ex-parte award diligently. She was made to change the lawyer and the second lawyer appointed by the appellant went again to file application for setting aside the ex-parte award, which was later on withdrawn, when he came to know that a similar application earlier filed by the counsel on behalf of the appellant had already been dismissed by the Tribunal. This made the appellant to rush to this Court and multiple proceedings were lodged. All these facts, which are borne out from the record, do make out an exceptional case for condonation of delay, more so, when we look to the merits of the appeal. The Tribunal has applied the principle of "pay and recover" merely on the ground that the driving license of the driver of the offending vehicle did not bear PSV endorsement. Law is since well settled and is well explained by the Supreme Court in the case of Mukund Devgan v. Oriental Insurance Company Ltd., AIR 2017 SC 3668.

It may also be worthwhile to notice that in terms of Section 168(2) of the Motor Vehicles Act, 1988 the Claims Tribunal is under an obligation to arrange to deliver copies of the award to all the parties concerned, expeditiously and in any case within a period of 15 days from the date of award. For facility of reference, Section 168(2) of the Motor Vehicle is reproduced hereunder:-

"168. Award of the Claims Tribunal.............................. ................................................... (2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen from the date of the award."

In the instant case, no effort appears to have been made by the Tribunal to serve copy of the award on the parties, particularly, the appellant herein. This ground in itself is sufficient to persuade this Court to condone the delay.

For the foregoing reasons and discussion made herein above, CONC No.31/2012 is allowed and the delay of 3423 days in filing the appeal is condoned.

MA No.75/2012

The impugned award has been assailed by the appellant, the owner of the offending vehicle, only to the extent it grants liberty to the insurer-respondent No.1 to recover the award amount from the appellant.

Before dealing with the ground of challenge urged by the appellant, it would be appropriate to notice few facts relevant for the disposal of this appeal.

On 24.07.1999, Matador No.9774-JK02H being driven by respondent No.2 in a rash and negligent manner turned turtle at Indira Nagar. In the accident one Rakesh Singh, who was travelling in the offending vehicle, died on spot and some other passengers sustained grievous injuries. Respondent Nos.3 to 5 [„the claimants‟], the next of kin of the deceased Rakesh Singh, preferred a claim petition before the Tribunal. The claim petition was opposed by respondent No.1 herein, whereas appellant was proceeded ex-parte. On the basis of the pleadings of the contesting parties, the Tribunal framed the following issues:-

"1. Whether the accident involving death of the deceased Rakesh Singh S/O Kaka Singh and injuries to petitioners Swarn Singh and Shiv Ram was caused because of rash and negligent driving by the driver of the offending vehicle No.JK02H- 9774 on 34.07.1999? OPP

In case Issue No.1 is proved in affirmative what compensation the petitioners in each case are entitled to? OPP

Whether terms and conditions of the Insurance Policy have been violated and therefore, the Insurance Company is not liable to indemnify the owner? OPR-1

Relief. O.P.Parties"

In order to discharge the burden of proof of issues Nos. 1 and 2, besides examining Girdhari Lal, Pankaj Kumar and Surinder Singh, respondent No.3 herself entered the witness box as her own witness. Respondent No.1, the insurer, examined M.L.Chouhan, Sushil Kumar, M.L.Raina and Romesh Singh as its witnesses. Appreciating the evidence adduced, the Tribunal held issue Nos. 1 and 2 proved in favour of the claimants and issue No.3 proved in favour of respondent No.1-insurer. The Tribunal held the claimants entitled to a sum of Rs.3,57,044/- as compensation and directed respondent No.1 to pay compensation to the claimants and granted liberty to it to recover the same from the appellant.

The Tribunal recorded a finding that the driver of the offending vehicle, at the time of accident, was holding a driving license to drive heavy goods vehicle only and he was not authorized to drive the public service vehicle.

Learned counsel for the appellant referring to the license of respondent No.2 and verification report of one Ajay Gupta, Surveyor and Loss Assessor, copies whereof have been placed on record, submits that respondent No.2 was holding a valid and effective driving license at the time of accident and was duly authorized to drive a passenger service vehicle, as such, the Tribunal has wrongly applied the principle of 'pay and recover'.

A bare perusal of the copy of license placed on record, shows that the respondent No.2 was holding a valid driving license, at the time of accident, authorizing him to drive heavy motor vehicle (HMV). There is no mention of goods vehicle or passenger vehicle. In the verification report, relied upon by the appellant, it has been clearly stated that the HMV license issued in favour of respondent No.2 was endorsed for Bus and Taxi vide Batch No.18175 w.e.f. 1975. Therefore, it can safely be held that the Tribunal has erred in applying the principle of „pay and recover‟.

Even otherwise, in view of the settled legal position, the driver of the offending vehicle was competent to drive passenger service vehicle i.e Matador in the instant case in absence of PSV endorsement on his license, if he was duly authorized to drive a goods vehicle. Reference in this regard is invited to the judgments of the Supreme Court in the cases of Kulwant Singh and others vs. Oriental Insurance Co. Ltd (2015) 2 SCC 186 and Mukund Devgan (supra).

In view of the above, I find merit in the appeal and the same is, accordingly, allowed. The award of the Tribunal is modified to the extent that the insurer shall be liable to indemnify the insured-appellant and shall not be entitled to recover the amount of compensation paid to the claimants in terms of the award of the Tribunal.