Delhi High Court
Oriental Isurance Co. Ltd. vs Smt. Shiny & Ors. on 10 January, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 10th January, 2012
+ MAC APP. 576/2008
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv. with
Mr. Amit Gaur, Advocate
versus
SMT. SHINY & ORS. ..... Respondents
Through: Mr. Manish Maini, Adv. for R-
1 to R-4.
+ MAC APP. 40/2009
SMT. SHINY & ORS. ..... Appellants
Through: Mr. Manish Maini, Advocate
versus
MOHD. AKIL & ORS. ..... Respondents
Through: Mr. Pradeep Gaur, Adv. with
Mr. Amit Gaur, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These are two cross Appeals. MAC APP. 576/2008 is preferred
by the Oriental Insurance Company Limited whereas MAC
APP. 40/2009 is filed by the Appellants Shiny & Ors.
2. The Appellants Oriental Insurance Company shall be referred to
as the Insurance Company and the Appellants in MAC APP.
40/2009 shall be referred to as the Claimants for the sake of the
convenience.
3. The Claimants seek enhancement of compensation of `
6,91,500/- on the ground that the Motor Accident Claims
Tribunal (the Tribunal) erred in making deduction of 25% and
then again of one-third from the deceased's income of `7,000/-
per month while calculating the loss of dependency.
4. The Insurance Company's plea is that the compensation
awarded was on the higher side and no recovery rights were
granted to it, although, it was proved that the driving licence of
the driver Respondent No.5 Mohd. Akil (in MAC APP.
576/2008) was fake.
5. The accident took place on 26.02.2006. As per the driving
licence of deceased Rajesh @ Rajesh Joseph, his date of birth
was 10.05.1970. Thus, he was aged about 35 years and 7
months on the date of the accident.
6. In order to establish the deceased's salary, the Claimant Shiny
deposed that her husband was getting a salary of `7,000/- per
month. Her testimony was corroborated by PW-2 Hirotoshi
Endo who was the deceased's employer. He deposed that the
deceased was being paid a salary of `7,000/- per month
inclusive of medical allowance, conveyance and lunch since the
time of his employment in January, 2005. From PW-2's
testimony, it is apparent that the deceased was getting a
lumpsum salary of ` 7,000/-. No deduction was required to be
made in the amount of income apart from the deduction towards
personal and living expenses of the deceased. The Tribunal fell
into error in initially deducting 25% from the income towards
the personal expenses and then again deducting one-third
towards the personal and living expenses of the deceased.
7. The Supreme Court in the case of Sarla Verma v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121 laid down the
following principles for grant of compensation in death cases:-
"I. MULTIPLIER
Age of the Multiplier
deceased (in
years)
II. DEDUCTION FOR PERSONAL AND LIVING
EXPENSES
Deceased - unmarried
(i) Deduction towards personal expenses.
: 1/2 (50%)
(ii)
Deduction where the family of the
bachelor is large and dependent on the
income of the deceased.
: 1/3rd (33.33%)
Deceased - married
(i) 2 to 3 dependent family members. : 1/3rd
(ii) 4 to 6 dependent family members : 1/4th
(iii) More than 6 family members : 1/5th
(iv) Subject to the evidence to the
contrary. : Father, brother and
sisters will not be
considered as
dependents.
III. FUTURE PROSPECTS
(i) Permanent job : Actual salary - tax + 50%
Below 40 years of age towards future prospects.
(ii) Permanent job : Actual salary - tax + 30%
Between 40-50 years towards future prospects.
(iii) More than 50 years with: Actual salary only.
permanent job. No addition for future
prospects.
(iv) Deceased employed at a fixed: Only actual income to be
Salary (without provision for taken. No addition.
Annual increments)"
8. As per Sarla Verma (supra) father is not to be treated as a
dependant. Hence, one-third shall have to be deducted towards
the deceased's personal and living expenses and the multiplier
of 15 should have to be applied as per the age of the deceased.
9. The revised loss of dependency works out to ` 8,40,000/- (i.e. `
7,000/- minus one-third x 12 x 15).
10. On adding a sum of `25,000/- towards loss of love and
affection, ` 10,000/- each towards loss of consortium and loss of
estate and `5,000/- towards funeral expenses, the overall
compensation comes to ` 8,90,000/-.
11. The amount of compensation shall carry interest @ 7% per
annum from the date of filing of the petition till the date of
payment as granted by the Tribunal.
12. The amount shall be payable to the Claimants in proportion and
will be held in fixed deposits as directed by the Tribunal in Para
17 of the impugned judgment.
13. With regard to the right of recovery, the driving licence number
T-17640 issued on 21.10.2002 was placed on the record of the
Tribunal. It is urged by the learned counsel for the Insurance
Company that the driving licence was found to be fake. On this
issue, the Tribunal held as under:-
"16.... T3W2 proved insurance policy as
EX.R3W3/D. He further deposed that notice under
Order 12 Rule 8 CPC was issued to Sh. Harender
Kumar and Sh. Mohd. Akil respondent Nos. 2 and
1 respectively. He proved the copy of notice as
Ex.R3W2/A. He further stated that notice was sent
to them by registered AD. R3W1 deposed as per
record brought by him regarding issuance of
licences for the period 01.06.2005 to 15.07.2005
licences No.T-7103 to 7158 were issued during
this period. He further deposed that driving
licence No.T-1764 was not issued from his office.
T series licence numbers were not issued after
15.07.2008. He proved relevant page of register
as Ex.R3W1/A. In cross examination he admitted
that he did not bring the record of 21.10.2002 or
20.10.2005. Ex.P4 is copy of driving licence dated
21.10.2002 or 20.10.2005.Ex.P4 is copy of driving
licence dated 21.10.2002 purportedly issued to
Mohd. Akil respondent No.1. His testimony could
not create any suspicion that driving licence Ex.P4
is fake licence....."
14. It is urged by the learned counsel for the Insurance Company
that the serial number of the driving licence 17640 issued in the
year 2002 by itself would show that the same was fake as
R3W1 deposed that the licence number T-7103 to T-7158 were
issued during the period 01.06.2005 to 15.07.2005. It is well
settled that the onus to prove the breach of terms of policy is on
the Insurance Company. The Insurance Company was required
to summon and prove the record of the issuance of the licence
on 21.10.2002 and its renewal on 20.10.2005. The same having
not been done, it cannot be said that the Insurance Company
discharged the onus of proving the breach of the terms of
policy.
15. Thus, no fault can be found in the finding of the Tribunal that
the insurer failed to establish the violation of the terms and
conditions of the Insurance Policy. Thus, the insured was
entitled to be indemnified by the Insurance Company as the
vehicle was duly insured.
16. In view of the above MAC APP.576/2008 filed by the Insurance
Company is hereby dismissed. MAC APP. 40/2009 filed by the
Claimants is allowed in above terms. No costs.
(G.P. MITTAL)
JUDGE
JANUARY, 10, 2012
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