Delhi High Court
Oriental Insurance Co Ltd vs Shashi Bala & Ors on 8 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 8th May, 2012
+ MAC.APP. 175/2010
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. L.K. Tyagi, Advocate
versus
SHASHI BALA & ORS ..... Respondents
Through: Mr. J.S. Kanwar, Advocate with
Mr. Mohinder Malhotra,
Advocate for R-1.
Mr. Sandeep Sharma, Advocate
for R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM APPL.5275/2012 (Delay)
There is a delay of 7 days in filing the Appeal. For the reasons
stated in the application, the same is allowed. Delay of seven
days in filing the Appeal is condoned.
The application stands disposed of.
MAC.APP. 175/2010
1. There is twin challenge to an award dated 30.11.2009 whereby
a compensation of `9,50,000/- was awarded in favour of Smt.
Shashi Bala and Smt. Prakash Devi who were the Petitioner and
Respondent No.4 before the Motor Accident Claims Tribunal
(the Claims Tribunal).
2. Firstly, it is urged that the compensation of `1,00,000/- awarded
towards loss of love and affection is on the higher side.
Secondly, it is contended that it was proved before the Claims
Tribunal that Respondent No.2 driver Gajjan Khan (Respondent
No.1 before the Claims Tribunal) did not possess a valid driving
licence on the date of the accident to drive the offending
vehicle, yet the Claims Tribunal instead of exonerating the
Appellant Insurance Company, made it liable to pay the
compensation.
3. The Claims Tribunal granted recovery rights and that too only
against the registered owner Mohd. Ali, Respondent No.3. It is
argued that the Appellant was entitled to recovery rights against
Respondents No. 5 to 10, who were the legal representatives of
deceased Irfan; the rightful owner and the person who was in
possession of the vehicle at the time of the accident.
4. It is urged by the learned counsel for the Respondents No.1 and
4 (the Claimants) that the compensation of `1,00,000/- awarded
towards loss of love and affection cannot be said to be on the
higher side, particularly when he was survived by a young
widow and an old mother.
5. There is no Appeal by the driver and the registered owner. The
legal representatives of the deceased Irfan (Respondents No.5 to
10) preferred not to contest this Appeal despite their appearance
through an Advocate.
6. The Claims Tribunal awarded a sum of `1,00,000/- towards loss
of love and affection. Loss of love and affection can never be
measured in terms of money. Thus, uniformity has to be
adopted by the Courts while granting non-pecuniary damages.
The Supreme Court in Sunil Sharma v. Bachitar Singh (2011)
11 SCC 425 and in Baby Radhika Gupta v. Oriental Insurance
Company Limited (2009) 17 SCC 627 granted only ` 25,000/-
(in total to all the claimants) under the head of loss of love and
affection. Thus, I would reduce the compensation under this
head to ` 25,000/- only.
7. As far as the liability of the Insurance Company to pay the
compensation when the driver is found to be in possession of a
fake licence or an invalid licence or no licence, this Court in
MAC APP.329/2010 titled 'Oriental Insurance Co. Ltd. v.
Rakesh Kumar & Ors.' decided on 29.02.2012, noticed the
judgments of the Supreme Court in Malla Prakasarao v. Malla
Janaki & Ors.(2004) 3 SCC 343; National Insurance Company
Limited v. Kusum Rai & Ors., (2006) 4 SCC 250; National
Insurance Company Limited v. Vidhyadhar Mahariwala & Ors.,
(2008) 12 SCC 701; Ishwar Chandra & Ors. v. The Oriental
Insurance Company Limited & Ors., (2007) 10 SCC 650;
Premkumari & Ors. v. Prahalad Dev & Ors., (2008) 3 SCC
193; Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21; New
India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC
342; United India Insurance Company Ltd. v. Lehru & Ors.,
(2003) 3 SCC 338; National Insurance Company Limited v.
Swaran Singh & Ors., (2004) 3 SCC 297; Oriental Insurance
Co. Ltd. v. Zaharulnisha and Ors., (2008) 12 SCC 385;
National Insurance Company Limited v. Geeta Bhat & Ors.,
2008 (12) SCC 426, and National Insurance Company Limited
v. Laxmi Narain Dhut, (2007) 3 SCC 700 and relied on Sohan
Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21 and National
Insurance Company Limited v. Swaran Singh & Ors., (2004) 3
SCC 297; and opined that even in case of conscious breach of
the terms of policy, the Insurance Company would have
statutory liability to satisfy the award but would be entitled to
recovery rights against the tortfeasor. Therefore, the Claims
Tribunal's finding making the Appellant Insurance Company
liable to satisfy the award cannot be faulted.
8. It is important to note that Respondent No.3 Mohd. Ali was the
registered owner. The LRs of deceased Irfan, who was the
rightful owner, admitted during the inquiry before the Claims
Tribunal that earlier Irfan was the rightful owner and in
possession of the vehicle at the time of the accident. Therefore,
the Appellant Insurance Company shall be entitled to recovery
rights against the rightful owner on the date of the accident as
well. Obviously, Irfan being dead, the right of recovery would
only be against the estate of Irfan. Respondent No.2 Gajjan
Khan, the driver of the offending vehicle No.DL-1RG-9966
who caused the accident on account of his rash and negligent
driving being the principal tortfeasor would also be liable to
reimburse the amount of compensation to the Appellant
Insurance Company.
9. In the result, the overall compensation is reduced from `
9,50,000/- to `8,75,000/- which shall carry interest @ 7.5% per
annum as granted by the Claims Tribunal.
10. The amount of `8,75,000/- along with proportionate interest
shall be released to Respondents No.1 and 4 (the Claimants) in
the manner and in terms of the award dated 30.11.2009 passed
by the Claims Tribunal.
11. The excess amount of `75,000/- along with proportionate
interest and the interest accrued, if any, during the pendency of
the Appeal shall be refunded to the Appellant Insurance
Company.
12. The statutory amount of `25,000/- be refunded to the Appellant
Insurance Company.
13. The Appeal is allowed in above terms.
14. Pending application stands disposed of.
(G.P. MITTAL)
JUDGE
MAY 08, 2012
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