The New India Assurance Co. Ltd vs Kiran & Ors
2012 Latest Caselaw 4354 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: 6th July, 2012
                                         Pronounced on: 23rd July, 2012
+       MAC.APP. 45/2004

        THE NEW INDIA ASSURANCE CO. LTD...... Appellant
                      Through Mr. Pankaj Seth, Advocate

                      versus


        KIRAN & ORS                                 ..... Respondents
                               Through   Nemo

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

                               JUDGMENT

G. P. MITTAL, J.

1. The Appeal is directed against a judgment dated 14.11.2003 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby a compensation of `3,68,448/- was awarded in favour of the Respondents No.1 to 4 for the death of one Balwan who died in a motor vehicle accident which occurred on 08.02.1995.

2. On appreciation of evidence, the Claims Tribunal found that the accident was caused because of rash and negligent driving of maruti van No.DL-8CA-1580 driven by the Respondent No.6 in rash and negligent manner. The Claims Tribunal declined to believe that the deceased while working as a barber was earning

`2,500/- to 3,000/- per month as claimed by the First Appellant

(PW1). Thus, it took the minimum wages of a skilled worker `1919/- per month, added 50% towards future prospects,

deducted 1/3rd towards personal and living expenses and applied a multiplier of 16 to compute the loss of dependency as `3,68,448/-.

3. The finding on negligence is not challenged by the Appellant Insurance Company. The owner and the driver have not preferred any Appeal. Thus, the finding on negligence has become final between the parties.

4. There is twin challenge to the impugned judgment. Firstly, it is urged that the compensation awarded is exorbitant and excessive as future prospects were granted without any evidence in this regard; secondly it is urged that the Appellant Insurance Company successfully proved the breach of the terms of the policy by proving conviction of Sixth Respondent by certified copy of the judgment Ex.RW2/2 vide which he was convicted not only under Section 3/181 of the Motor Vehicles Act, 1988 (the Act) but also under Section 279/304A IPC. Thus, it is urged by the learned counsel that the Appellant Insurance Company was entitled to the recovery rights against the owner and the driver of the offending vehicle.

QUANTUM

5. As far as quantum of compensation is concerned, even without addition towards future prospects, the compensation of

`3,68,488/- cannot be said to be exorbitant. The Claims

Tribunal while computing the loss of dependency made 1/3rd deduction towards personal and living expenses which should have been 1/4th as the number of dependents were five on the date of the accident(Smt. Attro the deceased's mother died during the pendency of the Claim Petition). The appropriate multiplier at the deceased's age (28years) was 17 as against 16 adopted by the Claims Tribunal. (Sarla Verma & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121). The loss of dependency without future prospects thus comes to `2,93,607/-. (1919 x 12 x 3/4 x 17).

6. No compensation was awarded towards non-pecuniary damages. I would make the provision of `25,000/- towards love and affection, `10,000/- towards loss of consortium and `5,000/- each towards funeral expenses and loss to estate. The

overall compensation without addition of future prospects or inflation comes to `3,38,607/- as against an award of `3,68,448/-. Since no Cross-Objection or Appeal has been filed

by the Claimants, I would not go into the question of future prospects. In any case, the compensation of `3,68,448/- awarded by the Claims Tribunal cannot be said to be excessive or exorbitant. The same is just and reasonable.

LIABILITY

7. As far as liability of the Appellant is concerned, the Appeal must succeed.

8. During inquiry before the Claims Tribunal, the Appellant examined RW2 Ramesh Chander who proved copy of the notice dated 15.11.2002 served upon the Respondents No.6 and 7(the driver and the owner of the offending vehicle) to produce the original policy and the driving licence of the driver. The same were proved as Exhibits RW2/6 to RW2/7. This remained unanswered and an inference could be drawn that the Respondent No.6 did not possess any driving licence to drive the maruti van on the date of the accident. (New India Assurance Co. Ltd. v. Sanjay Kumar and Ors., ILR 2007(II) Delhi 733 ). Not only this, in the criminal case filed under Section 279/304 IPC in respect of this accident, the driver was convicted for driving the vehicle rashly and negligently and also for being without a licence under Section 3 read with 181 of the Act. The Appellant, therefore, successfully proved the breach of the terms of policy in consonance with Section 149(2) of the Act. The owner did not come forward with any explanation as to the circumstances under which the Respondent No.6 was entrusted with the maruti van. The Appellant Insurance Company is, therefore, entitled to recover the compensation paid along with interest from the driver and the owner i.e. the Respondents No.6 and 7 herein. I, therefore, hold that the Appellant would be entitled to recover the compensation paid in execution of this very judgment without having recourse to any independent civil proceedings.

9. The Appeal is allowed in above terms.

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

11. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE

JULY 23, 2012 pst