$~7 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 29^th April, 2024 + CM(M) 1229/2016 & CM APPL. 44234/2016 SHRIRAM GENERAL INS CO LTD ..... Petitioner Through: Mr. Sameer Nandwani, Advocate.

versus MEENA UPPAL & ORS ..... Respondents Through: Mr. Gaurav Vats, Advocate for R-1, 2 & 3. CORAM:

HON'BLE MR. JUSTICE DHARMESH SHARMA DHARMESH SHARMA, J. (ORAL)

1. This petition under Article 227 of the Constitution of India has been preferred by the petitioner/insurance company assailing impugned order dated 22.11.2016 passed by the learned PO, MACT, South East, Delhi (as her ladyship was then) in Suit No. 3599/2016 titled as „Meena Uppal v. Mukesh Kumar‟, whereby the application of the petitioner/insurance company under Order I Rule 10 of the CPC1 besides application for summoning of witnesses, were dismissed.

2. Having heard the learned counsel for the petitioner/insurance company and on perusal of the record, this Court finds that the present Writ Petition is bereft of any merits.

3. Shorn of unnecessary details, the respondents No. 1 to 3 are the widow and two children of deceased Tilak Raj Uppal, who died as a

1 Code of Civil Procedure, 1908

Signature Not Verified Digitally Signed By:PRAMCOMD(M) 1229/2016 Page 1 of 5 result of injuries sustained in a motor accident that occurred on 04.01.2013 when the Car in which he was travelling bearing registration No. DL9CQS 3739 driven by the driver Anil Takkar dashed against the Truck bearing registration No. UP81AF-13752 from behind at 03:00 a.m., which was allegedly parked at Delhi-Agra Highway without any parking light indicators, back lights etc.

4. The respondents/claimants filed a claim petition under Section 166 read with Section 140 of the Motor Vehicles Act, 1988, [M.V. Act] seeking compensation against the driver and the registered owner of the offending vehicle besides impleading the present petitioner/insurance company as the offending vehicle was evidently insured for third party risks.

5. During the course of proceedings an application under Order I Rule 10 of the CPC besides application for summoning witness from J.P. Infratech Limited were moved as to ascertain at what time the offending vehicle had passed the Toll. The said application came to be dismissed by the learned Tribunal assigning the following reasons:

“Heard arguments and perused the record.

The plea of the driver and owner of the victim vehicle being necessary on the ground of negligence and contributory negligence was a defence taken by the Insurance in its amended written statement that was filed in October, 2013 by the Respondent no.3/Insurance Company. The present application has been moved now at the stage of R.E which is highly belated. More over, the said application does not have any merit for it is a petition filed by the petitioners for claiming compensation on account of death of Sh. Tilak Raj Uppal in a road accident. It is the petitioner who is the master of his case and it is his discretion to array the parties as respondents.

2 Offending vehicle

Signature Not Verified Digitally Signed By:PRAMCOMD(M) 1229/2016 Page 2 of 5 It is also incumbent to note that the plea of Insurance is only of contributory negligence, which makes the driver and owner of the victim vehicle at best joint, tort feaser in case it is so disclosed. It is a settled proposition of law that it is not mandatory to implead all the joint tort feasers as the liability is joint and several.

The present application which has been field at the stage of Respondent‟s evidence is nothing but an attempt to delay and drag the case. The respondents have filed their written statement, where no such defence has been taken. More over, no application under Section 170 M.V Act has been filed or lead defence evidence. The present application is without merit and is hereby dismissed with cost of Rs.10,000/- to be paid to the victim.

There is an application for summoning of witnesses has been filed on behalf of the Insurance Company for summoning of