Delhi High Court
National Insurance Company Ltd vs Bhupal Singh Adhikari & Ors on 23 July, 2012
Author: G.P. Mittal
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:23rd July, 2012
+ MAC. APP. No.875/2010
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
Versus
BHUPAL SINGH ADHIKARI & ORS. ..... Respondents
Through: Mr. Gyan Prakash, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `7,15,000/-
awarded by the Motor Accident Claims Tribunal(the Claims
Tribunal) for the death of Smt. Asha Adhikari, a housewife who
died in a motor vehicle accident which occurred on 01.12.2006.
2. The finding on negligence is not challenged by the Appellant
Insurance Company. The same has thus attained finality.
3. The following contentions are raised on behalf of the Appellant:
(i) The compensation of `5,40,000/- towards loss of
dependency in case of a housewife is exorbitant and
excessive; a compensation of `1,00,000/- towards
loss of love and affection is also excessive.
(ii) By examining R3W1 R.S. Kashyap, R3W2 Rajesh
Kumar Sinha and R3W3 Sanjay Diwan, the
Appellant was able to prove the breach of the terms
of the policy as the owner did not possess a valid
permit on the date of the accident. In spite of this,
the Appellant was fastened with the liability; even
the recovery rights were not granted.
4. As far as quantum of compensation is concerned, the case is
covered by a judgment of this Court in Royal Sundaram
Alliance Insurance Co. Ltd. v. Master Manmeet Singh & Ors.,
(MAC.APP.590/2011), decided on 30th January, 2012. This
Court noticed the following judgments of the Supreme Court:-
(i) General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas (Mrs.)
and Ors. (1994) 2 SCC 176,
(ii) National Insurance Company Limited v. Deepika & Ors.,
2010 (4) ACJ 2221,
(iii) Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2
Del 1,
(iv) Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8
SCC 197,
(v) Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami
& Ors., AIR 1962 SC 1,
(vi) A. Rajam v. M. Manikya Reddy & Anr.,
MANU/AP/0303/1988,
(vii) Morris v. Rigby (1966) 110 Sol Jo 834 and
(viii) Regan v. Williamson 1977 ACJ 331 (QBD England),
and laid down the principle for determination of loss of
dependency on account of gratuitous services rendered by a
housewife. Para 34 of the judgment in Master Manmeet Singh
(supra) is extracted hereunder:-
"34. To sum up, the loss of dependency on account of
gratuitous services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a
Graduate.
(ii) Minimum salary of a Matriculate where she is a
Matriculate.
(iii) Minimum salary of a non-Matriculate in other
cases.
(iv) There will be an addition of 25% in the assumed
income in (i), (ii) and (iii) where the age of the
homemaker is upto 40 years; the increase will be
restricted to 15% where her age is above 40 years
but less than 50 years; there will not be any
addition in the assumed salary where the age is
more than 50 years.
(v) When the deceased home maker is above 55 years
but less than 60 years; there will be deduction of
25%; and when the deceased home maker is above
60 years there will be deduction of 50% in the
assumed income as the services rendered decrease
substantially. Normally, the value of gratuitous
services rendered will be NIL (unless there is
evidence to the contrary) when the home maker is
above 65 years.
(vi) If a housewife dies issueless, the contribution
towards the gratuitous services is much less, as
there are greater chances of the husband's re-
marriage. In such cases, the loss of dependency
shall be 50% of the income as per the qualification
stated in (i), (ii) and (iii) above and addition and
deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the
personal and living expenses.
(viii) As an attempt has been made to compensate the
loss of dependency, only a notional sum which may
be upto ` 25,000/- (on present scale of the money
value) towards loss of love and affection and `
10,000/- towards loss of consortium, if the
husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not
earning, no amount should be awarded towards
loss of estate."
5. There was no evidence as to the qualification of the deceased
Asha Adhikari. Thus, minimum salary of a non-matriculate is
to be taken into consideration to compute the loss of
dependency. Applying Master Manmeet Singh (Supra), the loss
of dependency comes to `7,25,535/-(`3505 + 15% x 12 x 15).
Loss of dependency itself without addition of any compensation
towards pecuniary and non-pecuniary damages comes to be
more than what was awarded by the Claims Tribunal. Thus, the
compensation awarded cannot be said to be exorbitant or
excessive.
6. As far as breach of the terms of the policy is concerned, Sanjay
Diwan, Asstt. Secretary, STA Department (R3W3) admitted
that the permit holder had deposited the fee for validity of the
permit for a period of five years w.e.f. 02.03.2006 to
01.03.2011. The permit was thus valid upto 01.03.2011. There
was one of the condition of the permit i.e. the DTC bus stop was
to be used by the offending vehicle and for that purpose a DTC
bus stand fee was required to be deposited with the DTC.
R3W3 deposed that this vehicle permit was issued on
02.03.2006 and valid upto 16.09.2006. It was then renewed
from 26.12.2006 to 26.03.2007 and then 05.11.2007 to
26.02.2008. The witness deposed that the DTC bus stand fee
was paid only on 26.12.2006 and so the permit was renewed
from that day. In cross-examination, the witness admitted the
genuineness of the document Ex.R3W3/P-1 which showed that
the permit was valid from 02.03.2006 to 26.02.2008. Thus,
payment of fee for using DTC bus stand was a mere formality
and the permit thereafter renewed from retrospective effect on
deposit of the aforesaid fee as the Respondent No.6 (the owner)
had already been issued a stage carriage permit for the period
02.03.2006 to 01.03.2011. On the basis of this evidence, the
Claims Tribunal opined that it was not each and every violation
of any condition of the permit which would make the permit
ineffective for the purpose of insurance policy and thus declined
to grant recovery rights. The observations of the Trial Court are
extracted hereunder:
"..... In my view it is not each and every violation of
the condition of the permit which makes the permit
ineffective for the purpose of insurance policy. For
instance if a driver does not wear the uniform, it may
be a violation of the permit condition but in no way it
will affect the condition of the policy. Only those
condition of the permit which substantially make the
permit ineffective can be termed as violation of the
condition of the policy. For example if the vehicle is a
goods vehicle but used as a passenger vehicle.
Another example is where the vehicle (a bus) has
stage carriage permit but is used as a contract
carriage. There can be so many examples. I need not
incorporate them. I am not inclined to hold that
because of late deposit of the stand fees by R2, he
(R2) had violated the terms of the policy so as to
justify the recovery rights in favour of R3."
7. The fact that the stage carriage permit was valid for a period of
five years w.e.f. 02.03.2006 and the renewal on fulfilling the
condition of deposit of DTC charges was being granted
retrospectively on payment of late fee would show that there
was no substantial breach of the terms of the permit. This Court
in Mahender Singh v. Oriental Insurance Co. Ltd. & ors.
(MAC.APP.430/2010) decided on 10.05.2012 the question of
breach of the terms of policy for using the vehicle for a purpose
not allowed by the permit under which the vehicle is used was
dealt with in great detail and relying on State of Maharastra and
Ors. v. Nanded-Parebhani Z.L.B.M.V. Operator Sangh (2000) 2
SCC 69 it was held that it is not each and every condition for
issuance of the permit which would result in breach of Clause
(c) to Section 149(2)(a)(i) of the Act. It was held the user of a
transport vehicle for the purpose not allowed by a permit would
be using a goods vehicle as a passenger vehicle and vice-versa
etc. As admitted by the R3W3 in his cross-examination, the
validity of the permit was for the period 02.03.2006 to
26.02.2008 which covered the period of accident. The
Appellant Insurance Company cannot avoid its liability to
indemnify the insured.
8. Consequently, the Appeal is devoid of any merit; the same is
accordingly dismissed.
9. Statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company.
10. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 23, 2012
pst
