National Insurance Co. Ltd. vs Anshu Gupta & Anr.
2010 Latest Caselaw 2863 Del

 *                      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Mac. App. No.341 of 2007 & C.M. Appl. No.8019 of 2007

%                                                                              01.06.2010

         NATIONAL INSURANCE CO. LTD.                    ...... Appellant
                             Through: Mr. Pradeep Gaur & Mr. Amit Kr. Pandey,
                                      Advocates.

                                            Versus

         ANSHU GUPTA & ANR.                                         ......Respondents
                                        Through: Mr. Kirti Uppal & Mr. Puneet Bhatnagar,
                                                 Advocates for respondent No.1.

                                                             Reserved on: 23rd April, 2010
                                                            Pronounced on: June 01, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?     Yes.

2.       To be referred to the reporter or not?                                    Yes.

3.       Whether judgment should be reported in Digest?                            Yes.

                                       JUDGMENT

1. This appeal has been preferred by the insurance company assailing award dated

22nd March, 2007 passed by the Motor Accident Claim Tribunal awarding a sum of

Rs.17,48,486/- to the claimant/injured and giving right to the insurance company to

recover this amount from the owner of the vehicle.

2. The contention of the appellant is that since in this case the owner of the scooter

was not having a valid driving license to drive the scooter and was having a driving

license to drive the car, the insurance company should have been exonerated from its

liability to pay compensation to the claimant rather than first paying it and then

recovering it from the owner. Instead, the owner should have been directed to pay the

compensation. Reliance was placed on National Insurance Company Limited Vs. Kusum

Rai; 2006 ACJ 1336. The other ground for challenge of the order is that the Tribunal

awarded higher compensation amount to the injured since the Tribunal failed to deduct

1/3rd of the amount of his income towards personal expenses.

3. Brief facts relevant for the purpose of deciding this appeal are that on the night of

19th November, 2001 around 11:30 p.m., the injured driving scooter bearing No.DL-1S-J-

9920 was hit by the driver cum owner of scooter bearing No.DL-7S-P-1407. Both the

claimant as well as respondent alleged that accident took place due to negligence of other.

However, after appreciating evidence led by both the parties, the Tribunal came to the

conclusion that both of them contributed to the accident and were equally responsible for

the accident and that is why, after calculating the compensation payable, the Tribunal

ordered only 50 per cent of the compensation to be paid to the claimant by the insurance

company of respondent No.1.

4. In the accident, the victim, that is, the claimant had become paralyzed and

disabled to a greater extent, and he filed the claim petition through his wife. He was also

suggested future treatment as he was not in a position to speak properly, could not walk

and could not perform his day to day affairs. Total disability of his body was assessed as

70 per cent. He was still undergoing treatment at the time of evidence before the

Tribunal. He had already spent around Rs.11,50,000/-, as per bills produced by him, on

medical treatment and around Rs.12,00,000/- on nursing charges. He was initially

admitted to Shanti Mukand Hospital and then taken to Apollo Hospital. The Tribunal

also constituted a committee of doctors to examine his state of health and the board of

doctors after examining him, certified that his condition was the same as was given in the

claim petition. There was shortening of left lower limb. He was treated for left femur

fracture and external fixator. He was dependent on others for daily livings. He was

paralytic. The court, thus, believed that 70 per cent disability was correctly assessed.

The income of the injured was taken as Rs.8,000/- on the basis of cogent proof of his

income-tax return. His age was 34 years at the time of accident. After taking into

account his disability and age, the Tribunal applied a multiplier of 13 and awarded a

compensation of Rs.9,43,982/- towards loss of income for future. Rest of the

compensation was awarded on account of pain and sufferings, special diet, medical

expenses, future medical expenses, loss of amenities in life including loss of conjugal

bliss, shortage of life expectancy and expenses on attendant including past and future.

5. The plea taken by the appellant is that the Tribunal did not deduct 1/3rd of the

amount as his personal expenses while calculating the income. I consider that deduction

of 1/3rd from the income towards personal expenses is not a straight jacket formula in

case of injured persons. The compensation in case of injured person has to be calculated

objectively keeping in mind the state of health to which the injured has been reduced after

the accident. In the present case although the disability has been shown as 70 per cent but

the evidence and the medical record shows that the injured had become totally incapable

of earning because of his paralytic condition and his inability to do even his daily chorus.

Under these circumstances, I consider that the Tribunal rightly calculated the

compensation taking into account the factual situation and the income of the deceased. I

find no infirmity in the award on this count.

6. It is settled law that where, in an accident by a vehicle, a third party is injured and

vehicle is duly insured, it is the liability of the insurance company to make payment to the

third party and satisfy award and income of breach of conditions of the policy, recover the

award amount from the owner. However, the insurance company has been exonerated

from making any payment only in those cases where the claimant is owner himself and

claimant is not a third party. This legal position has been upheld by the Supreme Court in

National Insurance Company Limited Vs. Swaran Singh & Ors.; (2004) 3 SCC 297 and in

the judgment relied upon by the appellant himself, that is, National Insurance Company

Limited Vs. Laxmi Narain Dhut; (2007) 3 SCC 700 wherein the Supreme Court observed

as under :-

"In Swaran Singh case, (2004) 3 SCC 297, it was held that any condition in the policy whereby the right of the third party is taken away would be void. Thereafter the principles were culled out in the following terms :

The insurance company is required to prove the breach of the condition of the contract of insurance by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of the policy on the part of the insured, the insurance company cannot be absolved of its liability. This court did not lay down a degree of proof, but held that the parties alleging the breach must be held to have succeeded in establishing the breach of the condition of the contract of insurance, on the part of the insurance company by discharging its burden of proof. The Tribunal, must arrive at a finding on the basis of the materials available on the records.

It was further held, inter alia, that Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act has to be so interpreted as to effectuate the said object. The judgment added that the breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fultilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time."

7. The plea taken by the appellant that since the owner himself was driving and was

having no license, the insurance company should be exonerated from making payment is

not tenable. It is the insurance company that has to pay the amount and then recover from

the owner.

8. I find no force in the appeal. The appeal is hereby dismissed.

SHIV NARAYAN DHINGRA J.

June 01, 2010 'AA'