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2017 Supreme(Del) 4179
IN THE HIGH COURT OF DELHI AT NEW DELHI
R.K. GAUBA, J.
United India Insurance Co. Ltd. - Appellant
Versus
Smt. Chand Kumari & Anr. - Respondents
CM (M) 570 of 2013, MAC.APP. 457 of 2013
Decided On : 03-11-2017
Advocate Appeared:
For the Appellant : Mr. Sameer Nandwani with Mr. P. Acharya, Adv.
For the Respondents: Mr. Deepak Maharaj, Adv.
The obligation to substitute deceased parties by their legal heirs and the non-joinder of legal heirs can lead to the abatement of proceedings.
Headnote:
Insurance - Motor Accident Claim - Negligence - Non-joinder of legal heirs - Abatement of proceedings
Fact of the Case:
The case involved a motor vehicular accident resulting in the death of Shyam. The tribunal found the driver and owner of the vehicle liable to pay compensation, with the insurer being held responsible for the payment. Subsequently, one of the deceased's sons also passed away during the proceedings.
Finding of the Court:
The court found that the insurance company failed to take necessary steps to implead the surviving legal heir of the deceased and to substitute the deceased's wife by her legal heirs, leading to the abatement of the proceedings.
Issues: Non-joinder of legal heirs, abatement of proceedings, and re-adjustment of apportionment of compensation.
Ratio Decidendi: The court emphasized the obligation under Order 22 Rule 4 of the Code of Civil Procedure, 1908, regarding the substitution of deceased parties by their legal heirs and the non-joinder of legal heirs, leading to the abatement of proceedings.
Final Decision: The appeal and petition were found to be defective due to non-joinder and were deemed to have abated. The proceedings arising from the appeal and petition were closed, and the surviving claimants were given liberty to approach the tribunal for re-adjustment of the apportionment of compensation.
1. Accident Claim case (MACT No. 73/2012) had been instituted on 10.01.2012 by four claimants, they being Sitali Devi, Chand Kumari, Sunny Kumar, Sonu Kumar, being the mother, wife and minor sons respectively of Shyam who had died in a motor vehicular accident that had occurred on 12.10.2011. The claim case was decided by the tribunal, by judgment dated 01.03.2013, returning a finding that the accident had occurred due to negligence on the part of Ashok Kumar (fifth respondent in MAC No. 457/2013) while driving truck bearing registration no HR 38 G 9548, which was admittedly insured against third party risk with United India Insurance Company Ltd. (appellant in MAC Appeal No. 457/2013) and petitioner in CM(M) 570/2013. The said vehicle was registered in the name of Harvindra Singh (fourth respondent in appeal), the said driver, owner and insurer had been impleaded as party respondents before the tribunal.
2. The tribunal held the driver and owner jointly and severally liable to pay compensation determined in the sum of Rs. 14,56,750/-, fastening the liability on the insurer to pay the said amount, rejecting its plea about breach of terms and conditions of the insurance policy.
3. It appears that Master Sunny Kumar, one of the sons of the deceased Shyam, had died on 21.10.2012 during the pendency of the inquiry before the tribunal. This fact was brought to the notice of the tribunal, after the inquiry had been concluded and the award had been passed. The tribunal by its subsequent order dated 09.05.2013, revised the directions passed in the judgment dated 01.03.2013, apportioning the amount earlier given to Master Sunny Kumar equally amongst his mother Chand Kumari and sibling Sonu Kumar, two of the other three claimants.
4. The insurance company filed MAC Appeal no. 457/2013 questioning judgment of the tribunal, particularly assailing the finding on the issue of negligence. In the appeal, it impleaded Sitali Devi (mother), Chand Kumari (wife) and Master Sunny Kumar (son) as first, second and third respondents. It also questioned the subsequent order dated 09.05.2013, by CM (M) 570/2013, on the ground that such order could not have been passed after the judgment had been rendered. In the said petition Chand Kumari (wife) and Master Sunny Kumar (the son) were shown as first and second respondents. Obviously, Master Sunny Kumar could not have been impleaded as a party to the appeal, or to the petition, since, to the knowledge of the insurance company, he had already died on 21.12.2012, which was the reason for the order dated 09.05.2013 being passed by the tribunal.
5. During the pendency of these matters, Chand Kumari has also died. This fact was brought to the notice of the counsel for the insurance company by the counsel representing the claimants on 09.03.2017. In fact, on 09.03.2017, in the course of hearing on CM (M) 570/2013, the counsel representing the claimants pointed out that both the persons shown in the array as respondents had passed away. He also pointed out that Master Sonu Kumar, the surviving child of the deceased Shyam had not been made a party.
6. The counsel representing the insurance company against the above backdrop had sought time to obtain instructions. For such purposes, the matter was adjourned. By directions in both these matters issued by separate orders of 09.03.2017, the counsel for claimants was called upon to make available to the insurance company, the particulars of legal heirs of Chand Kumari. It is admitted that the counsel for the claimants had sent a communication dated 10.08.2017, by post, to the counsel for insurance company whereby he, inter alia, informed that Sonu Kumar was the only legal heir surviving after the death of Chand Kumari. It also pointed that he had not been impleaded as a respondent.
7. Inspite of the above due intimation, and opportunity, the insurance company has neither taken any steps to implead Sonu Kumar in these proceedings nor to substitute Chand Kumari by h
