Delhi High Court
National Insurance Co. Ltd. vs Smt. Hukami Devi & Ors. on 31 May, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: April 28, 2010
Date of Order: May 31, 2010
+ FAO 210 of 1995
% 31.05.2010
Hukum Devi & Ors. ...Appellants
Through: Mr. Varun Kumar & Mr. Navneet Goyal, Advocates
Versus
Chander Bhan & Ors. ...Respondents
Through: Mr. L.K. Tyagi, Advocate for R-3
AND
+ FAO 36 of 1996
%
National Insurance Co. Ltd. ...Appellant
Through: Mr. L.K. Tyagi, Advocate
Versus
Smt. Hukami Devi & Ors. ...Respondents
Through: Mr. Varun Kumar & Mr. Navneet Goyal, Advocates
AND
+ FAO 37 of 1996
%
National Insurance Co. Ltd. ...Appellant
Through: Mr. L.K. Tyagi, Advocate
Versus
Shri Suraj Mal Saini & Ors. ...Respondents
Through: Mr. Varun Kumar & Mr. Navneet Goyal, Advocates
AND
+ FAO 38 of 1996
%
National Insurance Co. Ltd. ...Appellant
Through: Mr. L.K. Tyagi, Advocate
Versus
Shri Prem Singh & Ors. ...Respondents
Through: Mr. Varun Kumar & Mr. Navneet Goyal, Advocates
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
FAO NOs. 210 of 1995, 36,37 & 38 of 1996 Page 1 Of 6
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By this judgment, I shall dispose of above four appeals.
2. Succinctly stated the facts relevant for the purpose of deciding these
appeals are that on 2nd February, 1984 Mr. Chander Bhan was driving a taxi,
number DLT 6201 with four passengers in it, in a reckless and negligent
manner and he banged his taxi against rear portion of a statutory truck
parked at Palam Road near Higher Secondary School. As a result of this
accident Dilsukh Saini, one of the passengers in the taxi, died while Suraj Mal
Saini and Prem Singh, other two passengers sustained grievous injuries.
Three claim petitions were filed, one by Lrs of deceased and two by the
injured passengers. The learned Tribunal came to conclusion that the
accident took place due to composite negligence of taxi driver and the truck
driver since the truck was parked on the road without its backlights on, and
there was no attendant along the truck and the taxi was being driven in a
rash and negligent manner by its driver. The Tribunal awarded a
compensation of Rs.1,50,000/- to the Lrs of Dilsukh Saini. With regard to other
two injured, the Tribunal passed award of Rs.50,000/- and Rs.55,000/-
respectively.
3. Vide appeal FAO No.210 of 1995, Lrs of Dilsukh Saini have assailed the
award on the ground that compensation awarded was inadequate. The other
three appeals have been filed by the insurance company on the ground that
the Tribunal wrongly held that the liability of insurance company as unlimited.
4. A perusal of record would show that Dilsukh Saini was aged around 42
FAO NOs. 210 of 1995, 36,37 & 38 of 1996 Page 2 Of 6
years at the time of accident and was drawing a salary of Rs.774.30. The
Tribunal considered that in 1986 i.e. about two years after the accident, pay
commission had come and his salary would have increased and hence
Tribunal took average salary of deceased as Rs.1500/- and deducted Rs.500/-
towards personal expenses and took Rs.1000/- as the amount available to
dependents, multiplied it with multiplier of 11 and came to conclusion that
Rs.1,32,000/- would be just compensation. To this, Rs.15,000/- on account of
loss of consortium, loss of estate etc. was added to make it Rs.1,47,000/-.
This amount was rounded as Rs.1,50,000/-.
5. If we apply parameters as laid down by Supreme Court in Sarla
Varma's case, since there were five dependents, the deduction towards
personal expenses out of the salary would be 1/4th. The salary being 774.30,
the deduction towards personal income would be around 194/- and the
balance available to the claimants would be Rs.580/- since the deceased was
42 years of age, 30% of his salary would be added towards future prospects.
That means Rs.174/- would be added to Rs.580/- and the per month income
for the purpose of calculating the compensation would be Rs.754/-. If we
apply multiplier of 15 as per Second Schedule (multiplier as per Sarla Varma's
case, is 14), the total compensation payable to the claimants would be
Rs.1,35,720/- and if we add Rs.5,000/- towards loss of estate and Rs.5,000/-
towards loss of consortium and Rs.4,000/- towards funeral expenses, the
result would be same and the total compensation payable to the claimants
would be around Rs.1,50,000/- only. I, therefore, consider that the
compensation awarded by the Tribunal to the Lrs of deceased Dilsukh Saini
was just and proper. I find no ground to interfere with the award passed by
the Tribunal on account of compensation. The appeal FAO 210 of 1995 is
FAO NOs. 210 of 1995, 36,37 & 38 of 1996 Page 3 Of 6
accordingly dismissed.
6. The award passed by the Tribunal has been assailed in other three
appeals by the insurance company, insurer of the taxi, alleging therein that
the Tribunal wrongly came to conclusion that the liability of the insurer was
unlimited. It is submitted by counsel for insurance company that the injured
persons and deceased in this case were passengers in the taxi and the
liability of the insurance company towards the passengers, as per insurance
policy proved on record by insurance company, was Rs.15,000/- per
passenger and it was not unlimited. It is submitted that the insurance
company had proved and exhibited before the Tribunal its policy but the
Tribunal wrongly interpreted the terms and conditions of the policy.
7. A perusal of record of Tribunal would show that two insurance
companies were involved, one respondent no.3 and other respondent no.6
(before Tribunal). Respondent no.3 was insurance company of the taxi.
Respondent no.3 examined its witness RW3 Ram Lal an Assistant from its
office, who proved that the insurance company had issued a notice to insured
to produce original policy but the insured failed to produce the original policy
despite service of notice Ex.PWR/3/A and insurance company (respondent
no.3) was given liberty to lead secondary evidence. In secondary evidence,
respondent no.3 brought on record the carbon copy of the insurance policy
and Schedule of Policy. A perusal of the Schedule of policy issued by
insurance company would show that a premium of Rs.48 was charged for four
passengers and it was mentioned in the policy itself that the liability of the
insurance company was limited to Rs.15,000/- per passenger in respect of
any one accident. The learned Tribunal, however, observed that in the policy,
including endorsement, it was nowhere mentioned that liability of insurance
FAO NOs. 210 of 1995, 36,37 & 38 of 1996 Page 4 Of 6
company per passenger was limited to Rs.15,000/- and, therefore, rejected
the plea of limited liability .
8. This Court in Neeta Trehan & Ors. v Gopal Krishan & Ors FAO 257 of
1991 decided on 17th May, 2010 observed that the liability of insurance
company has to be commensurate with premium charged by it since, the
premium is specified and prescribed by Advisory Board. There is no dispute
in this case that the premium charged for four passengers was Rs.48/- i.e.
Rs.12 was the premium per passenger. In New India Insurance Company Ltd.
v Shanti Bai & Ors I (1995) ACC 667 (SC), the Supreme Court had considered
the limitation of liability of insurance company in respect of passengers and
observed as under:
"9 .In the present case, the premium which has been
paid is at the rate of Rs. 12/- per passenger and is clearly
referable to the statutory liability of fifteen thousand
rupees per passenger under Section 95 (2)(b)(ii) of the
Motor Vehicles Act, 1939. In the present case, there is
no special con-tract between the appellant-company and
respondent No. 4 to cover unlimited liability in respect
of an accident to a passenger. In the absence of such an
express agreement, the policy covers only the statutory
liability. The mere fact that the insurance policy is a
comprehensive policy will not help the respondents in any
manner. As pointed. out by this Court in the case of
National Insurance Co. Ltd. v. Jugal Kishore & Ors.,
(supra) comprehensive policy only entitles the owner to
claim reimbursement of the entire amount of loss or
damage suffered up to the estimated value of the
vehicle. It does not mean that the limit of liability with
regard to third party risk becomes unlimited or higher
than the statutory liability. For this purpose, a specific
FAO NOs. 210 of 1995, 36,37 & 38 of 1996 Page 5 Of 6
agreement is necessary which is absent in the present
case. Reference in this connection may also be made to
the case of M.K. Kunhimohammed v. P.A. Ahmedkutty &
Ors., (1987 (3) SCR 1149). The appellant company is,
therefore, entitled to succeed to the extent that it has
been directed to pay to respondents 1 to 3 any amount
in excess of Rs. 15,000/-."
9. A perusal of tariff roll would also show that in case of passengers where
the premium charged is Rs.12, the insurance cover provided by insurance
company is of Rs.15,000/-. I, therefore, uphold the plea raised by insurance
company. The three appeals i.e. FAO No.36,37 and 38 of 1996 preferred by
insurance company are allowed and I hold that the liability of insurance
company was limited to Rs.15,000/-. Amount in excess to its liability if already
paid would be recoverable by it from the owner of the taxi and not from
claimants.
10. All the four appeals stand disposed of with above order.
May 31, 2010 SHIV NARAYAN DHINGRA J.
rd
FAO NOs. 210 of 1995, 36,37 & 38 of 1996 Page 6 Of 6
