ARTI ANR ORS vs NAVEEN AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 5th January, 2024
Judgment pronounced on : 21st February, 2024
+ CM(M) 1062/2022 & CM APPL. 43724/2022 (Stay)
ARTI AND ORS. ….. Petitioners
Through: Mr. Jatinder Kamra, Advocate.
versus
NAVEEN AND ORS. ….. Respondents
Through: Mr. Pankaj Seth, Adv. for R-3 /
United India Insurance Co. Ltd.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T

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 Delhi1, 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 Code2.

1MACT
2CPC

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

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, 19883 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/ck