New Premier Insurance Co. Ltd. vs Phoolwati & Ors.
2010 Latest Caselaw 2654 Del

     *           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                  Date of Reserve: April 08, 2010
                                                     Date of Order: May 19, 2010
+ FAO 80/1993
%                                                                      19.05.2010
      New Premier Insurance Co. Ltd.                            ...Appellant
      Through: nemo

         Versus

         Phoolwati & Ors.                                     ...Respondents
         Through: Mr.Varun Kumar and Mr. Navneet Goyal, Advocates, Advocates

AND

+ FAO 86/1993
%
      Phoolwati & Ors.                                     ...Appellants
      Through: Mr.Varun Kumar and Mr. Navneet Goyal, Advocates, Advocates


         Versus

         Hakim Singh & Ors.                                     ...Respondents
         Through: nemo


         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. By this common order, I shall dispose of the above two appeals arising out of

same order dated 19th November 1992. The order of Tribunal has been assailed by the

insurance company on the ground that the Tribunal has wrongly fixed the liability of

insurance company to pay the compensation despite the fact that the claimants had

failed to prove that the vehicle was insured with the insurance company. The second

appeal has been preferred by the claimants seeking enhancement of compensation. The

Tribunal awarded a compensation of Rs.55,200/- along with interest @ 12% per annum

FAO Nos. 80/1993 & 86/1993 Page 1 Of 7 from 23rd September 1991 till realization. The claimants stated that while awarding

compensation, the Tribunal had not taken into consideration the proper parameters. The

Tribunal did not take into account the future prospects of deceased and made

deductions of 1/3rd out of income on personal expenses whereas the deductions should

have been made only of 1/4th amount towards personal expenses and future prospects

also should have been taken into consideration as the deceased was working as a

regular LDC. The other plea is that the claimants were not awarded compensation

towards loss of estate, loss of consortium etc.

2. Brief facts relevant for the purpose of deciding this appeal are that deceased

Ram Kishan Saroha died due to a road side accident on 11th May, 1973. A taxi bearing

number DLT 3069 collided against the cycle on which deceased was travelling due to

rash and negligent driving of the taxi driver, on 6th May, 1973. The deceased

succumbed to his injuries in Safdarjung Hospital. The deceased was aged around 27

years and was working as LDC with Ministry of Development. The witness produced

from the department proved the income of the deceased as Rs.335.70/- for the month of

August, 1993. The learned Tribunal after holding that the accident took place due to

negligent driving of driver of taxi bearing number DLT 3069 observed that out of the

income being earned by the deceased, 1/3rd would have been spent by the deceased

towards his personal expenses and thus the contribution towards dependency would

have been 223 (rounded to Rs.230 per month) looking at the age of the deceased and

the retirement age of 58 years prevalent at that time, he considered that a multiplier of 20

was just for arriving at appropriate compensation and awarded a compensation of

Rs.230x12x20 = Rs.55,200/-. Since the claim petition was inordinately delayed due to

conduct of the claimants and the claim petition was dismissed in default on 12th

November 1979 and it was restored only on 23rd September 1985 and even thereafter

the claimants took six years in examination of their witnesses, the Tribunal granted

FAO Nos. 80/1993 & 86/1993 Page 2 Of 7 interest @ 12% per annum only from September 1991 holding that the blame for

delaying the claim petition lay on claimant side.

3. In the present case, no insurance cover was placed on record. The driver and

owner of the taxi were proceeded ex parte and they were not served. In the written

statement insurance company had taken preliminary objection that the vehicle was not

insured at the time of accident with the insurance company and thus insurance company

was not liable. The claimants while filing the claim petition had given a number of

insurance cover and asserted that the taxi was insured at the time of accident. The

learned Tribunal before whom the claim petition was initially pending was not satisfied

with the plea taken by the insurance company in the written statement and directed

insurance company to produce the record of cover note/ insurance certificate, the

number of which was mentioned by the claimants in claim petition. This record was to be

produced on 12th November 1979. However, on that day the claim petition itself was

dismissed. It is submitted that thus the insurance company had no occasion to place on

record the insurance particulars of that number. The application for restoration of the

claim petition was made in 1981. It was dismissed vide order dated 3rd September 1981

by the Tribunal. The insurance company thus could not be blamed for non filing the

insurance record of that number. Another application for restoration was filed in the year

1984 and the same was allowed by the Tribunal in 1985 and the claim petition was

restored. It is submitted by counsel for insurance company that once the application for

restoration of claim petition was dismissed in 1981, there was no occasion for insurance

company to have retained the insurance record as no specific directions were given to it

regarding this. The guidelines / rules of insurance company provided that records were

to be destroyed after five years. Thus, the insurance records pertaining to the year 1973,

under no circumstances could have been retained by the insurance company in 1986

and for all practically purposes the case was closed for insurance company in the year

1979 when claim petition was dismissed and ultimately in the year 1981 when the

FAO Nos. 80/1993 & 86/1993 Page 3 Of 7 application for restoration was dismissed. There was no occasion for the insurance

company to presume that another application for restoration of claim petition would be

allowed by the Tribunal. It is also submitted that claimant had given two numbers of

certificate of insurance number viz. 746 and 74623 and merely giving of numbers was

not sufficient to prove that the vehicle was insured with the insurance company.

4. A perusal of claim petition filed by the claimant would show that claimant had

initially given certificate of insurance number as 74623. However, the claim petition was

amended subsequently and the certificate of insurance number was given as 746. The

insurance company had taken plea that no such certificate of insurance existed qua taxi

in question. This plea was taken by the insurance company in the written statement.

However, since the Tribunal was not satisfied, it directed the insurance company to

produce the cover note with number 74623 so as to ensure itself as to which vehicle it

was related.

5. The insurance certificate number was obtained by the claimant from police who

had registered a case regarding this accident. It is obvious that the police would have

obtained the particulars of insurance from the driver and would have also obtained copy

of insurance certificate from the driver or owner of the vehicle. But looking at the fact in

which the trial proceeded before the Tribunal and the witnesses were recorded, it is

apparent that the claimants made no effort to summon the concerned investigating

officer who had seized the documents from the driver or owner of the taxi nor called the

record of criminal case. A witness from RTO (PW-6) was examined who was of no help

to the claimant, since this witness stated that as per the record of RTO, the insurance of

this car was valid up to 30th November 1972 vide policy number 136142 and there were

no particulars of insurance for the period of 6th May, 1973.

FAO Nos. 80/1993 & 86/1993 Page 4 Of 7

6. No fault can be found with insurance company for not producing its record in

respect of certificate number 74623 since the claimant in this case did not prosecute the

claim petition diligently and allowed the claim petition to be dismissed. The claim petition

remained dismissed from 19th November 1979 till 1985 i.e. for six long years. The first

application for restoration of the claim petition was dismissed by the Tribunal. If the

insurance company had considered that no claim petition was pending against it and had

not bothered to retain the record of different certificates pertaining to the year 1973 till

1985, no fault can be found with insurance company.

7. The onus to prove that the vehicle was insured with the insurance company was

either of the owner or of the claimant. The owner did not appear. The claimant did not

bother to discharge this onus. It is settled law that that party has onus to prove a fact

which would fail if the fact is not proved. Since, it was the claimant who was claiming

compensation and the claimant would have failed to receive compensation from the

insurance company in case of his failure to prove that the vehicle was insured, the onus

was on the claimant. The only exception is Section 106 of the Evidence Act to this rule,

which provides that a person who has special knowledge of the facts has the onus to

prove the same. However, the claimant failed to discharge even the initial onus to

prove on record that an insurance certificate of number given by him was issued in

respect of insurance of the taxi and the number of insurance cover was supplied to him

by the investigating officer or the police. I, therefore, consider that under the

circumstances, the claimant did not discharge this onus of proving that the taxi which

caused accident was actually insured vide insurance cover number 746 or 74623. No

adverse inference could be drawn against the insurance company because of the fact

that the claimant was grossly negligent in pursuing the claim petition and allowed the

claim petition to remain dismissed for six long years and did not make any application for

restoration soon after dismissal of the claim petition. Under these circumstances, I

FAO Nos. 80/1993 & 86/1993 Page 5 Of 7 consider that the Tribunal was wrong in drawing an adverse inference against the

insurance company on the ground that the insurance company did not produce the

record of insurance cover note 74623 deliberately.

8. However, the entire amount of compensation as awarded by the Tribunal has

already been deposited by the insurance company and disbursed to claimants long back.

I consider it would not be appropriate, after 37 years of accident to give directions to the

victims to refund the amount to the insurance company. The insurance company is given

liberty to recover this amount from the owner without further proving anything, on the

basis of this judgment.

9. I also consider that compensation as awarded by the Tribunal to claimant was

just and proper. The claimants has filed an application under Order 41 Rule 27 for

leading additional evidence to prove as to what would have been the salary of the

deceased had he been alive. It is settled law that the Court/Tribunals do not take into

account the career of a person had he been alive, as a base for computing

compensation due to uncertainties of life and career. Capitalization of dependency is

done on the basis of salary prevalent at the time of death. Future benefits are taken into

account by the Court in view of the fact that every person has some future prospects and

has a right to progress in life. But uncertainties of human life is a factor which always

hovered in the minds of the Courts/ Tribunals and that is why the courts have not been

taking the progress of other similarly situated persons. I, therefore, consider that

additional evidence sought to be produced by claimants cannot be considered nor can

be allowed to be produced. The Tribunal, under the prevalent law had awarded

compensation on the basis of actual salary of the deceased taking a multiplier of 20. I

think the Tribunal awarded just compensation to the claimants. I find no ground to

interfere into the compensation awarded by the Tribunal. There is another reason for this

Court not to interfere into the compensation i.e. the owner of the vehicle has been ex

FAO Nos. 80/1993 & 86/1993 Page 6 Of 7 parte from the beginning. The burden of giving already awarded compensation was put

on the insurance company and this Court has held that insurance company was not

liable to pay compensation. Under these circumstances, any enhancement in

compensation would just be a futile exercise as there seems to be no possibility of

recovery of enhanced amount from the owner neither the claimants had made any effort

to recover any amount from the owner.

10. In view of my above discussion, both appeals stand disposed of.

May 19, 2010                                             SHIV NARAYAN DHINGRA J.
rd




FAO Nos. 80/1993 & 86/1993                                       Page 7 Of 7