Delhi High Court
New India Assurance Co Ltd vs Shanti & Ors. on 28 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th February, 2012
+ MAC.APP. 218/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. K.L.Nandwani, Advocate
versus
SHANTI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
C.M. APPL. 3687/2012(Exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
C.M.No.3688/2012, 3686/2012 & MAC APP.218/2012
1. There is a delay of 98 days in filing the Appeal.
2. The Appellant (The New India Assurance Company Limited)
seeks reduction of compensation from Rs.2,75,288/- awarded
for the death of Dharmanand Dev who was aged 62 years at the
time of the accident.
3. During the enquiry before the Tribunal it was proved that the
deceased was getting a pension of Rs.5617/- per month. The
Tribunal deducted 1/2 towards personal and living expenses as
only the deceased's widow was financially dependent on the
deceased, applied multiplier of '7' relevant to the deceased's
age and computed the loss of dependency as Rs.2,25,288/-. The
judgment is challenged on the following grounds:-
(i) There was no negligence on the part of the driver of the
insured vehicle. The deceased himself contributed to the
accident. There was negligence on the part of the
motorcyclist on which the deceased was a pillion rider.
(ii) The compensation awarded is excessive as family
pension of Rs.4725/- which was available to the family
was not deducted from the pension which the deceased
was getting.
(iii) The driving licence of the driver of the offending vehicle
was found to be fake. The Tribunal instead of exonerating
the Appellant made it liable to pay the compensation with
the right to recover the same from the insured.
4. The Claims Tribunal dealt with the question of negligence in
detail. PW-1 an eye-witness to the accident deposed that at the
time of accident the motor cycle was hit by the offending
vehicle bearing No.UP 14 AH 6405 from behind, the deceased
fell down on the road and was crushed by the offending vehicle.
This part of the testimony of this witness was not challenged in
cross-examination.
5. The Claims Tribunal further observed that as per the
Mechanical Inspection Report the offending vehicle had fresh
damage on its front and the motorcycle on which the deceased
was a pillion rider had damage on the rear left side. Thus, it
was apparent that the accident took place in the manner as
alleged by the Respondents/Claimants. No fault can be found
with the reasoning given by the Claims Tribunal.
6. As far as the deduction of family pension is concerned, the law
is well settled by the report of the Supreme Court in N.
Sivammal and Others v. Managing Director, Pandian
Roadways Corporation and Another, 1985 ACJ 75 and Full
Bench judgment of this Court in Delhi Transport Corporation
Vs. Mrs. Meena Chaturvedi and Ors., 122(2005) DLT 75
wherein it was held that the reduction of the monetary benefit of
pension from the amount of the compensation is without
justification. Otherwise also, it is well settled that the benefits
which comes to the hands of the dependants by way of
accidental death only is to be deducted from the loss claimed by
way of compensation. The widow of the deceased was entitled
to the family pension even if the deceased met with a natural
death or otherwise on account of some illness.
7. So far as holding of a fake licence by the driver and proof of
willful breach of policy condition is concerned, the law is well
settled by catena of judgments of Supreme Court including
United India Insurance Company Ltd. v. Lehru & Ors., (2003) 3
SCC 338 and three Judges Bench decision in National
Insurance Co. Ltd. v. Swaran Singh & Ors., 2004 (3) SCC 297
that in case of a third party injury the Insurance Company is
under obligation to fulfill its statutory liability to pay and
recover the amount awarded from the insured. In Swaran
Singh's case (supra) it was held as under:-
"104. It is, therefore, evident from the discussions made
hereinbefore that the liability of the insurance company
to satisfy the decree at the first instance and to recover
the awarded amount from the owner or driver thereof
has been holding the field for a long time.
105. Apart from the reasons stated hereinbefore, the
doctrine of stare decisis persuades us not to deviate
from the said principle.
x x x x x x x x x x x
110. The summary of our findings to the various issues
as raised in these petitions is as follows:
x x x x x x x x x x x
(x) Where on adjudication of the claim under the Act
the Tribunal arrives at a conclusion that the insurer has
satisfactorily proved its defence in accordance with the
provisions of Section 149(2) read with Sub-section (7),
as interpreted by this Court above, the Tribunal can
direct that the insurer is liable to be reimbursed by the
insured for the compensation and other amounts which
it has been compelled to pay to the third party under
the award of the Tribunal. Such determination of claim
by the Tribunal will be enforceable and the money
found due to the insurer from the insured will be
recoverable on a certificate issued by the Tribunal to
the Collector in the same manner under Section 174 of
the Act as arrears of land revenue. The certificate will
be issued for the recovery as arrears of land revenue
only if, as required by Sub-section (3) of Section 168 of
the Act the insured fails to deposit the amount awarded
in favour of the insurer within thirty days from the date
of announcement of the award by the Tribunal."
8. The Appeal is without any merit. It is, therefore dismissed with
cost of Rs.20,000/- to be deposited with Delhi High Court legal
Services Committee.
9. It is note-worthy that this accident took place on 11.10.2008.
The award was passed by the Tribunal on 19.08.2011 i.e. more
than six months back. A direction was given to the Appellant
by the Claims Tribunal to satisfy the award within 30 days. The
Insurance Companies always come forward with the plea that
they are ready to settle the claim compensation. However, it is
apparent that even in a case of a widow, the Insurance Company
was placing all obstacles to stall the payment of a meager
compensation of Rs.2,75,288/- in an accident which took place
almost three years back. Not only this, the New India Insurance
Company was merrily sitting on the award and took almost six
months to challenge the same. In the circumstances, the
application for condonation of delay also stands dismissed.
10. Let a copy of the judgment be sent to the General Manager of
the Appellant/Insurance Company through its counsel and he
should file his response within six weeks as to the
circumstances under which the Appeal was filed.
11. List on 04.05.2012.
12. Copy of the order be also given Dasti.
(G.P. MITTAL)
JUDGE
FEBRUARY 28, 2012
mr
