National Insurance Co. Ltd. vs Rajbala & Ors.
2012 Latest Caselaw 803 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Reserved on: 19th January, 2011
                                    Pronounced on: 6th February, 2012

+       MAC. APP. No.748/2010

        NATIONAL INSURANCE CO. LTD.     ..... Appellant
                     Through: Ms. Shantha Devi Raman,
                              Advocate

                       Versus

        RAJBALA & ORS.                        ..... Respondents
                     Through:           Mr. S.N. Paarashar, Advocate

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                             JUDGMENT

G. P. MITTAL, J.

1. This Appeal is for reduction of compensation of ` 5,16,000/-

granted for the death of Umesh Kumar aged 30 years who died in an accident which took place on 11.02.2007.

2. The Motor Accident Claims Tribunal (the Claims Tribunal) by the impugned order accepted the deceased income to be ` 6000/- per month, added 50% towards future prospects, deducted ½ towards the personal and living expenses and applied the multiplier of 9 to compute the loss of dependency as ` 4,86,000/-.

3. Following contentions are raised on behalf of the Appellant:

i) There was no document to show that the deceased was earning ` 6,000/- per month. In any case, in the absence of any evidence as to future prospects, the same should not have been added.

ii) The deceased's mother was more than 60 years of age; the multiplier of 7 should have been taken instead of 9 as applied by the Tribunal.

iii) The driver did not possess any driving licence at the time of the accident; the Appellant could not have been fastened with the liability to pay the compensation.

4. During inquiry before the Tribunal, the first Respondent Rajbala entered the witness box as PW1. She deposed that her son Umesh Kumar was working as an electrician with M/s. Mac Engineering Pvt. Ltd., Delhi and was earning ` 10,000/- per month. She deposed that he was 12th pass and his salary was increasing day by day. In cross-examination, the Respondent admitted that she had not filed any certificate to the effect that the deceased Umesh Kumar was working as an electrician with Mac Engineering Pvt. Ltd., Delhi and earning ` 10,000/- per month. She testified that she filed the document with regard to the deceased's qualification as an electrician. She produced the certificate of apprenticeship, training Ex.PW1/G, the certificate

of ITI Ex.PW1/H and the national trade certificate issued by the Ministry of Labour as Ex.PW1/J. Some documents were also placed on record to show that the Appellant did apprenticeship with Uptron Powertronics an undertaking of government of UP. for a period of 01.11.1999 to 31.01.2000. In the circumstances, the Tribunal's assessment that the deceased must be earning at least ` 6,000/- per month cannot be faulted. At the same time, in the absence of any evidence as to the deceased's permanent employment, the Tribunal faulted in considering the future prospects while computing the loss of dependency.

5. As per the ration card, Rajbala was born in the year 1946. The accident took place on 11.02.2007 i.e. just in the beginning of the year. The age of Rajbala can be taken to be just above 60 years. In the circumstances, the multiplier of 9 taken by the Tribunal cannot be faulted. Thus, the loss of dependency would come to ` 3,24,000/-(6000 X ½ X 12 X 9). I would further add ` 25,000/- towards loss of love and affection, ` 10,000/- towards funeral expenses and ` 10,000/- towards loss of estate. The overall compensation comes to ` 3,69,000/-.

6. Thus, the compensation is reduced from ` 5,16,000/- to ` 3,69,000/-.

7. It is urged by the learned counsel for the Appellant that a notice under Order 12 Rule 8 CPC was served upon the owner and

driver of the vehicle to produce the driving licence. The non- production of the licence would show that the driver did not possess any driving licence. The Appellant, therefore, should not have been saddled with the liability to pay the compensation. It is true that a notice under Order 12 Rule 8 CPC was claimed to have been served upon the driver and the owner. However, no evidence with regard to the same was produced. It is well-settled that the onus to prove the breach of the policy condition is on the insurer. Simply stating that a notice under Order 12 Rule 8 CPC was sent was not sufficient to discharge the onus that the fourth Respondent did not possess any driving licence to drive the vehicle. In this view of the matter, The Appellant National Insurance Co. Ltd. cannot avoid the liability to pay the compensation.

8. A sum of ` 46,000/- along with proportionate interest payable to the second Respondent shall be released to the second Respondent forthwith. Rest of the compensation along with proportionate interest shall be payable to the first respondent. 40% of the amount payable to the first respondent shall be released immediately, rest 60% shall be held in three equal Fixed Deposits in UCO Bank, Delhi High Court Branch for one year, two years and three years respectively.

9. The excess compensation deposited shall be returned to the Appellant National Insurance Co. Ltd. with interest, if any, earned during the pendency of the Appeal.

10. The statutory amount of ` 25,000/- shall also be refunded to the Appellant.

11. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE FEBRUARY 06, 2012 pst