10
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.711/2003
Date of Decision: 14th December, 2009
%
ORIENTAL INSURANCE CO.LTD. ..... Appellant
Through : Ms. Manjusha Wadhwa, Adv.
versus
MARRY KUTTY THOMAS & ORS. ..... Respondents
Through : Mr. Sabu Thomas, authorized
respondent for R-1 to 5,8 and 9.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
JUDGMENT (Oral)
1. Respondent Nos.1 to 5,7,8 and 9 have been duly served. Respondent Nos.1 to 5, 8 and 9 are the claimants who are represented by Mr. Sabu Thomas. Respondent No.7 was proceeded ex-parte vide order dated 3rd December, 2008. Respondent No.6 is the driver who has not been served.
2. In the facts and circumstances of this case, notice to respondent No.6 is dispensed with.
3. The accident dated 21st December, 1986 resulted in the death of K. J. Thomas. The deceased was survived by his widow, two sons and two daughters who filed the claim FAO No.711/2003 Page 1 of 4 petition before the learned Tribunal. The deceased also left behind his parents who are impleaded as respondents before the learned Tribunal.
4. The deceased was aged 47 years at the time of the accident and was a building supervisor with M/s Cannon Dunkerley & Co. Ltd of the deceased. The learned Tribunal took the salary to be Rs.2,950/- per month, deducted 1/4th towards the personal expenses of the deceased and applied the multiplier of 13 to compute the loss of dependency at Rs.3,45,150/-. Rs.10,000/- has been awarded towards loss of estate, loss of consortium and loss of love and affection and Rs.5,000/- towards funeral expenses. The total compensation awarded is Rs.3,60,000/- (rounded off).
5. The only ground urged by learned counsel for the appellant at the time of hearing of this appeal is that the owner of the offending vehicle, namely, respondent No.7 took the cover note on 22nd December, 1986 but in collusion with Sh. G.P. Khanna, the insurance agent of the appellant antedated the date of the cover note as 19 th December, 1986 to cover the accident in question.
6. The learned counsel for the appellant submits that the premium for the insurance of the offending vehicle was received on 30th December, 1986. The learned counsel further submits that an inquiry was conducted against the agent, Sh. G.P. Khanna in respect of the fraud committed by him in collusion with the owner of the offending vehicle. FAO No.711/2003 Page 2 of 4
7. Considering that the cover note of the offending vehicle bears the date of 19th December, 1986 as the date of commencement of the risk and the said document having been issued by a duly authorized agent of the appellant, the appellant is liable to pay compensation to the third party in respect of the accident after 19th December, 1989. However, the appellant is entitled to recover the amount, after making payment to the claimants, from the owner of the offending vehicle as well as its own insurance agent.
8. The learned Tribunal has not granted any recovery rights to the appellant to recover the award amount from respondent No.7.
9. In that view of the matter, the impugned award is modified to the extent that the appellant shall, after making the payment of the award amount to the claimants, be entitled to recover the same from respondent No.7. The award of compensation to the claimants against the appellant is upheld.
10. The appeal is allowed and the impugned award is modified to the extent that the appellant shall be entitled to recover the award amount from respondent No.7 after making the payment of the same to the claimants.
11. The representative of the claimants submits that the entire award amount has been received by the claimants from the appellant.
FAO No.711/2003 Page 3 of 4
12. In that view of the matter, the appellant is entitled to recover the amount paid them to the claimants from respondent No.7. The appellant shall also be entitled to interest on the amount paid by them to the claimants @ 7.5% per annum from the date on which they made the payment of the award amount to the claimants.
13. Copy of this order be given 'Dasti' to learned counsel for both the parties under signature of Court Master.
J.R. MIDHA, J DECEMBER 14, 2009 mk FAO No.711/2003 Page 4 of 4