Delhi High Court
Oriental Insurance Co. Ltd. vs Hardiyanand Parshad & Ors. on 6 December, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 6th December, 2012
+ MAC. APP. 635/2012
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through Mr. Tarkeshwar Nath & Mr.Saurabh
Kumar Tuteja, Advocates
versus
HARDIYANAND PARSHAD & ORS. ..... Respondents
Through None.
+ MAC. APP. 644/2012
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through Mr. Tarkeshwar Nath & Mr.Saurabh
Kumar Tuteja, Advocates
versus
MASTER SATVIR KUMAR & ORS. ..... Respondents
Through None.
+ MAC. APP. 646/2012
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through Mr. Tarkeshwar Nath & Mr.Saurabh
Kumar Tuteja, Advocates
versus
MS.MAANSI ZALPURI & ORS. ..... Respondents
Through None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
MAC. APPs. 635, 644 & 646/2012 Page 1 of 5
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These three Appeals (MAC.APPs.635/2012, 644/2012 and 646/2012)
arise out of a common judgment dated 29.02.2012 passed by the Motor
Accident Claims Tribunal (the Claims Tribunal) whereby a compensation
of `3,75,000/-, `3,30,849/- and `15,000/- was awarded respectively in
MAC.APP. 635/2012, MAC.APP. 644/2012 and MAC.APP. 646/2012.
2. In MAC.APP.644/2012 & 646/2012, the quantum of compensation is not
challenged whereas in MAC.APP.635/2012 a compensation of `
3,75,000/- was awarded for the death of a minor child. This Court while
listing the case for consideration observed as under:-
"2. In Manju Devi v. Musafir Paswan, VII (2005) SLT 257,
the Supreme Court awarded a compensation of ` 2,25,000/- in
respect of death of a 13 years old boy by applying a multiplier of
„15‟ and taking the notional income of the deceased‟s child as `
15,000/- per month. The said case related to an accident which
occurred in 1998, deduction of 1/3rd towards personal and living
expenses was not made in the said case.
3. Following Manju Devi(supra), this Court in Shyam Narayan v.
Kitty Toors, IV (2005) ACC 1 awarded a compensation of
`2,25,000/- towards loss of dependency and `50,000/- on account
of loss of company of the child. In R.K. Malik v. Kiran Pal, III
(2006) ACC 261, this Court granted a compensation of `75,000/-
towards non-pecuniary damages which on Appeal to the Supreme
Court in R.K. Malik v. Kiran Pal, 2009 (8) Scale 451 were
approved. The Hon‟ble Supreme Court further awarded a
compensation of `75,000/- towards future prospects for death of
each of the child.
4. All these cases were considered by this Court in National
Insurance Company v. Farzana & Ors., 2009 ACJ 2763 and a
compensation of `3,75,000/- (`2,25,000/- towards loss of
dependency, `75,000/- towards non-pecuniary damages and
`75,000/- towards future prospects) was awarded. The award of
`3,75,000/- made by the Claims Tribunal is based on settled law
and does not call for any interference.
5. The Appellant/Insurance Company is directed to deposit the
amount of compensation with the Claims Tribunal within six weeks
and file a report in this Court in this regard.
6. With regard to recovery rights against Respondents No. 3 and 4
Trial Court record be requisitioned."
3. I have perused the Trial Court record. The plea of the Appellant
Insurance Company is that the driving licence issued in favour of the
driver Bhagwati Parshad was cancelled on 23rd October, 2007, that is, a
few days before the accident took place on 30th October, 2007. There was
a breach of the terms and conditions of the policy on the part of the
Insured, and the Appellant Insurance Company is entitled to recovery
rights. The Claims Tribunal dealt with the issue of liability in Paras 22
and 23 of the impugned judgment dated 29.02.20107 which are extracted
hereunder:-
"22. The Ld. Counsel for insurance company argued that
since the driving licence of offending driver was cancelled by RTO
Authorities so there is a breach of terms and conditions of policy at
the time of accident. The driver should have a valid and effective
driving licence at the time of accident. The Ld. Counsel made an
effort to draw a conclusion from newspaper report which appeared
immediately after the accident interalia pleading the driver of
offending vehicle was habitual defaulter of driving licence.
Repelling these arguments counsel for petitioners argued that
insurance company is liable to indemnify the owner of offending
vehicle. The insurance company failed to discharge his onus that
owner who has got the vehicle insured has allowed the vehicle to
be driven by a person who is not duly licensed. The expression
„breach‟ occurring in Section 149(2)(a)(ii) of the Act means
infringement or violation of promise or obligation. As such the
insurance company will have to establish that insurance was guilty
of and infringement or violation of promise. He further argued that
there is not even any allegation that it was the owner who was
guilty of violation the condition that vehicle shall not be driven by
any person not duly licensed. The insurance company must
establish that breach is on the part of insured. Unless the insured
is at fault and he is guilty of breach of condition, the insurer
cannot be escaped from obligation to indemnity the insured.
23. I have heard arguments advanced by the counsel for the
parties. Though the insurance company disputed its liability on the
ground that driving licence of driver was not valid and effective as
cancelled prior to the accident as evident from the testimony of
R3W2 Sh.Rohtas Singh, LDC Seikh Sarai Authority and issuing
authority report but there is nothing on record to suggest that
owner at the time of employing the driver was aware of this fact.
Moreover, newspaper report placed on record by insurance
company reveals that driver was habitual of procuring driving
licence on fake documents. The onus is upon the insurance
company that owner at the time of handing over the vehicle to the
driver was well aware of this fact. The record is devoid of any such
assumption and suggestions. Further, more such kind of
documents/newspaper report cannot be relied upon by insurance
company as defence unless it is proved that the fact of fake driving
licence was in the knowledge of owner of vehicle. In the aforesaid
claim petitions undisputed accident has occurred due to negligence
of the offending driver and thus vicariously liability is fastened
upon registered owner. Since however at the time of accident the
Oriental Insurance Company is insurer, therefore, insurance
company is liable to indemnify. These aforesaid claims shall be
paid by insurance company."
4. It was stated by R3W2 Rohtash Singh, LDC from the Office of Licensing
Officer, Seikh Sarai that the driver's licence was cancelled on
23.10.2007. The witness was completely silent that information with
regard to the cancellation of driving licence was sent to the driver, leave
apart the owner of the vehicle. The Insurance Company failed to adduce
any evidence that the driver was informed about the cancellation.
5. Admittedly, there was close proximity in cancellation of licence and the
accident. In the absence of any specific evidence led by the Appellant
Insurance Company that the driver was duly informed and consequently,
the owner was also aware that the validity of the driving licence has come
to an end, it cannot be said that the vehicle was allowed to be driven by
the Insured by a person who did not possess a valid and effective driving
licence. Thus, the insurer failed to discharge the initial onus placed on it
that there was a conscious breach of the terms and conditions of policy on
the part of the Insured. The Claims Tribunal rightly fastened the liability
upon the Appellant Insurance Company.
6. The Appeals are devoid of any merit; the same are accordingly dismissed
in limine.
7. Statutory amount of ` 25,000/-, if any, shall be refunded to the Appellant
Insurance Company in each Appeal.
8. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 06, 2012
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