Oriental Insurance Co.Ltd. vs Marry Kutty Thomas & Ors.
2009 Latest Caselaw 5185 Del

10
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +     FAO No.711/2003

                          Date of Decision: 14th December, 2009
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      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

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.

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.

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