IFFCO TOKIO GENERAL INSURANCE CO. LTD. v. MUSLIM ANSARI AND ORS.

1. In the accident claim case filed in the name of the first respondent (Muslim Ansari) on 28.01.2012, registered as suit No.299/2014, it was, inter alia, claimed that as a result of injuries suffered in the motor vehicular accident, he had been rendered permanently disabled to the extent of 100%, he having “lost his mental capabilities”. This contention was upheld by the tribunal by a finding returned in (para 26 of) the judgment rendered on 04.02.2015 which is impugned by the appeal at hand before this Court.

2. A perusal of the record gives the impression that the claim case was presented and prosecuted by the claimant himself, as he appeared on his own in person on 28.01.2012 before the tribunal, though assisted by a counsel. In the later proceedings, however, the evidence on his behalf was 2016:DHC:2863 adduced through his sister Nomina Khatoon (PW[1]). The proceedings recorded by the tribunal do not indicate if any move was made to appoint any next friend on his behalf. In the appeal at hand, whereby the insurance company questions the award on various grounds, again, there are no steps taken for a guardian-at-litem to be appointed for the claimant (first respondent), this in the face of the finding that he has been rendered mentally challenged.

3. The proceedings on the appeal indicate that notice was issued including to the claimant by order dated 24.04.2015. The notice to the claimant had returned unserved with report “address not found” on 03.09.2015 when the Registrar directed fresh steps to be taken for 02.11.2015. Though no steps were taken in terms of the said order, the proceedings recorded by the Registrar on 02.11.2015 reflect that a counsel by name of Mr. Nitin Yadav, Advocate appeared for the claimant before the registry within a week. The court master on being asked confirms that no vakalatnama has come on record till date.

4. Upon the matter being called today, no one has appeared on behalf of the claimant or Mr. Nitin Yadav, Advocate. Mr. Varun Sarin, Advocate, however, submits that Mr. Nitin Yadav had telephonically contacted him in the morning stating that on account of personal difficulty, it would not be possible for him to appear.

5. In the facts and circumstances, it cannot be concluded that the claimant (first respondent) has the due notice of the appeal or the proceedings arising therefrom.

6. By order dated 24.04.2015, the insurance company had been directed to deposit 75% of the awarded amount with proportionate interest with UCO Bank, Delhi high Court branch and upon such deposit being made Rs.[4] lakhs was allowed to be released to the first respondent. The counsel for the appellant submits that after the prayer for enlargement of time was granted, the amount was deposited on 10.07.2015. The record as placed before the Court does not indicate if the amount permitted to be released as per order dated 24.04.2015 has (or not) been taken by the claimant or on his behalf.

7. Against the backdrop, it is directed that no further amount shall be released hereafter till further directions from the Court. The Registrar shall make a report as to the status of the amount deposited by the insurer and the follow up action on the earlier direction for part release.

8. The appellant, in the meanwhile, shall take requisite steps for proper representation of the claimant in above light. A court notice shall issue to the counsel who represented the claimant before the tribunal and also to his sister Nomina Khatoon (PW[1]).

9. Be re-notified on 26.09.2016.

R.K. GAUBA (JUDGE) APRIL 06, 2016 VLD