Anil Srivastava & ANR v. Rohit Arora & ORS

$~5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CM(M) 1078/2016 ANIL SRIVASTAVA & ANR ..... Petitioners Through : Ms.Aruna Mehta, Advocate versus ROHIT ARORA & ORS ..... Respondents Through : Mr.Rajeev M Roy, Advocate.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

O R D E R

% 29.11.2016 The impugned order of 02nd June, 2016 allows Insurer's application for reopening of evidence by summoning eye-witness Nitin Kakar. In this petition, appellants/claimants challenges impugned order on the ground of incompetency of the respondent No.3/Insurer to file such an application.

Learned counsel for petitioners submits that respondent No.3/ Insurer is the only contesting respondent and rest of respondents are proforma. It is submitted by learned counsel for petitioners that respondent No.3/Insurer had not filed any application under Section 170 of the Motor Vehicle Act, 1988 and so in view of the decision of Three Judge Bench of Supreme Court in National Insurance Co Ltd vs. Nicolletta Rohtagi & Ors (2002 ACJ 1950), respondent / Insurer cannot cross-examine the eye-witness on the negligence aspect and also not lead evidence on the negligence aspect.

Reliance is also placed by learned counsel for appellant upon the decision of Supreme Court in Central Board of Dawoodi Bohra Community and Another vs. State of Maharashtra & Another : (2005) 2 SCC 673 to submit that the law laid down in Nicolletta Rohtagi (supra) will prevail over the subsequent decision of Supreme Court in United India Insurance Company Limited vs. Shila Datta & Ors : (2011) 10 SCC 509. So, it is submitted that the impugned order deserves to be set aside.

Learned counsel for respondent / Insurer supports the impugned order and submits that the point for consideration in Nicolletta Rohtagi (supra) was whether the insurer could file an appeal and whereas in Shila Datta (supra) what was considered is, as to whether all the defences would be available to the insurer, if insurer is made a party in the claim petition. So, it is submitted that the decision in Shila Datta (supra) would apply to the instant case and the decision in Nicolletta Rohtagi (supra) does not have any application to facts of the instant case.

Upon hearing, on perusal of impugned order and the decisions cited, I find that Supreme Court in Nicolletta Rohtagi (supra) has clearly declared that the statutory defences which are available to the insurer as provided under sub-Section 2 of Section 149 of the Motor Vehicle Act, 1988 alone would be available to the insurer.

The Supreme Court in a later decision in Shila Datta (supra) of equal strength has held to the contrary while drawing a distinction between the rights of a noticee insurer and the rights of a insurer being a party in the claim petition and has concluded that all the defences would be available to the insurer, where the insurer is made a party in the claim petition. In Shila Datta (supra) the matter has been referred to a Larger Bench.

Be that as it may.

In view of the decision of Supreme Court in Central Board (supra), the law laid down in an earlier decision would prevail over the divergent view taken by a subsequent Bench of equal strength. Resultantly, the legal position as declared in Nicolletta Rohtagi (supra) would prevail. Meaning thereby, the defences which are available to the insurer under sub-Section 2 of Section 149 of the Motor Vehicle Act, 1988 alone are available to the insurer in the absence of resort to Section 170 of the Motor Vehicle Act, 1988.

In view of the aforesaid, the respondent / insurer is not entitled to get the evidence reopened by summoning the eye witness. Consequentially, the impugned order is set aside with liberty to learned Tribunal to summon the eye-witness as a 'Court Witness', if the facts of instant case so warrant.

With the aforesaid observations, this petition is disposed of. (SUNIL GAUR) Judge NOVEMBER 29, 2016 M