Arti and Ors. v. Naveen and Ors.

1. This petition has been preferred by the petitioners/claimants invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, assailing the impugned orders dated 08.03.2022 and 24.11.2020, passed by the learned Presiding Officer, Motor Accident Claims Tribunal - South District, New Delhi[1], in Claim Case No. 227/2014 of Claim Application bearing NO. 75420/16, whereby the learned MACT dismissed the application of the petitioners for impleadment of the Insurance Company under Order I Rule 10 of the Civil Procedure Code[2].

FACTUAL BACKGROUND:

2. Briefly stated, it was the case of the claimants/petitioners that on 11.09.2014, Sh. Vijay Prakash @ Pappu (deceased herein) was 1MACT travelling in a TATA Indica Car bearing No. DL-3CW-6144 which was being driven by Naveen/Respondent No.1. At about 4PM, the deceased got out of the car to urinate at the side of the road near a signboard on the non-metallic part of the road. Suddenly, when the deceased bent down to pick up something, the driver of the car Naveen, started the ignition and accelerated the car with a jerk, which went out of control, zipping swiftly and hitting the deceased resulting in road accident injuries. He was taken to a government hospital, which referred him to Ratandeep Hospital, Kanpur for treatment, where he was admitted from 11.09.2014 to 22.11.2014, but succumbed to his injuries on 07.10.2014. Resultantly, an FIR bearing No. 149/14 was lodged at PS Fatehpur, Unnao on 11.09.2014. A claim petition was filed by the legal heirs of the deceased under Section 166 and 140 of the Motor Vehicles Act, 1988[3] on 27.11.2014.

3. The Insurance Company filed its written statement stating that respondent No.1/driver is not liable to pay the compensation as the vehicle involved in the accident was a private car for which a „Liability Only Policy‟ was issued and that the deceased was not a third party. As a result, the Insurance Company was deleted from the array of parties. The petitioners then filed an application for impleadment of the Insurance Company under Order I Rule 10 CPC.

4. During the course of proceedings, the learned MACT vide order dated 08.03.2022, which has been assailed by the petitioners, reaffirmed the fact that the Insurance Company had already been discharged from the present case. Thereafter, the learned MACT, vide 3MV Act order dated 24.11.2020, recalled and set aside the order dated 22.05.2019, whereby the Insurance Company was summoned. The germane observations are as under: “Insurance company in the present case has already been discharged by this court earlier. Subsequently, vide order dated 24.11.2020, on the application of the insurance company for recalling the order dated 22.05.2019 whereby they were summoned were recalled and set aside. This court had dealt all the contentions raised by the applicant for impleading the insurance company in its order dated 20.11.2020.”

5. The petitioners herein are assailing another order dated 24.11.2020, whereby, during the course of proceedings, it came to the notice of the learned MACT that the petitioner had not led any evidence till 07.02.2017 even after imposition of cost and no witness was examined till 21.11.2017; and that on 06.02.2018, after a year, instead of examining the witness, an application for amendment of the pleadings was moved under Order VI Rule 17 CPC. The learned MACT concluded its findings by stating that changing the facts and circumstances of the case during evidence does not make the Insurance Company liable and it cannot be impleaded as a party in the present matter. The relevant observations have been reproduced as under: “It is a matter of fact that Santosh Yadav has not stated anything before the police about the facts emerged out in the examination before the criminal court. Ld. Counsel for the non-applicant had moved an application under order 6 rule 17 of CPC firstly and thereafter got summoned the Insurance Company. While Insurance Company had already been deleted from the array of the parties stating that it cannot be held liable to pay the amount to gratuitous passenger in the car. By moulding and twisting the facts in the examination and cross examination before the criminal court, Insurance Company cannot be impleaded as party. Improvement or denial of facts by any witness during the trial does not make the insurance company to be impleaded as necessary party when facts has not been emerged during the course of Investigation. Until the order passed by the predecessor of this court dated 24.08.2016 is set aside in appeal, Insurance Company cannot be called to appear and contest the case. Instead of examining the witness, ld. Counsel has waited for two years for moving the application under order 6 rule 17 of CPC while he did not know what the witness to depose before the criminal court. Witness in his statement under section 161 CrPC has not stated anything before the police which the counsel wants to incorporate.”

6. The impugned order has been assailed inter alia on the grounds that once there is a valid insurance policy, the insurer becomes a necessary party which can‟t be discharged until the enquiry proceedings are completed. Further, it has been contested that once the evidence has come on the record that the deceased was not an occupant of the car, he becomes a third party vis-à-vis the driver, owner and Insurance Company. Lastly, it was alleged that the question of ascertainment of whether the deceased is a gratuitous passenger or a third party is a mixed question of fact and law, which can be decided only after adducing evidence.

ANALYSIS AND DECISION:

7. Having heard the learned counsels for the parties and on a perusal of the record, this Court finds that although there is no legal infirmity in the impugned order(s), the approach of the learned MACT is not correct and might lead to several complications. The entire scenario can be looked at from two angles: firstly that, as the learned MACT has commented, this is an attempt by the claimant to change the entire gamut of the case for not knowing relevant facts at the time of filing of the claim petition; and secondly that, there is an attempt to change the entire colour of the claim so as to wriggle out of a peremptory finding that the deceased was a „gratuitous passenger‟.

8. What this Court finds untenable and legally unsustainable is that even prior to the recording of evidence of the parties, a finding has been given that the deceased was travelling as a gratuitous passenger. Indeed, there is a now a new witness thrown in the ring in the criminal proceedings. However, if the observations made by the learned MACT in the impugned order(s), are allowed to be sustained, the same would amount to presuming or pre-judging a matter pending before a criminal court, which is yet to attain finality, which cannot be sustained in law.

9. There is no gain-saying that ultimately, the findings of the criminal court are not going to be binding upon the MACT with regards to whether or not the deceased was a gratuitous passenger. However, given that evidence is sought to be led before the MACT, it would be expedient for the Insurance Company to join the proceedings as it is a necessary party and evidence should not be recorded in the absence of the Insurance Company, so as to avoid any complications in the future regarding its liability under the insurance policy. The joining of the Insurance Company becomes necessary for effective adjudication of the entire controversy and for final adjudication of the issues before the learned MACT.

10. In view of the foregoing discussion, the present petition is allowed and the impugned orders dated 08.03.2022 and 24.11.2020 passed by learned MACT are set aside with the direction that respondent No.3/United Insurance Co. shall join the pending proceedings before the learned MACT. The Insurance Company shall be at liberty to file a fresh written statement, if so advised, and the Insurance Company be given liberty to cross-examine the witnesses that would be produced by the claimant so as to test their veracity.

11. The parties shall appear before the learned MACT for further proceedings on 01.03.2024.

12. The present petition stands disposed of along with the pending application.

DHARMESH SHARMA, J. FEBRUARY 21, 2024