Delhi High Court
Icici Lombard General Insurance ... vs Sarita & Ors. on 27 November, 2012
Author: G.P. Mittal
$ 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th November, 2012
+ MAC. APP. 1129/2011
ICICI LOMBARD GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Ms. Suman Bagga, Advocate.
Versus
SARITA & ORS. ..... Respondents
Through: Mr. Suresh Sisodia, Advocate for the
Respondents No.1 to 4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This Appeal is directed against a judgment dated 16.09.2011 passed by
the Motor Accident Claims Tribunal(the Claims Tribunal) whereby a
compensation of `34,35,000/- was awarded in favour of the Respondents
No.1 to 4.
2. Since the finding on negligence is not challenged by the Appellant
Insurance Company, the same has attained finality.
3. There is twin challenge to the impugned judgment. First, the
compensation awarded is exorbitant and excessive inasmuch as the
number of dependents in the case were only three. Thus, there should
have been a deduction of 1/3rd towards personal and living expenses. No
deduction was made towards liability of Income Tax. The compensation
of `1,00,000/- towards loss of love and affection is on the higher side.
Second, Respondent No.5 Surender Kumar did not possess a valid driving
licence as on the date of the accident, that is, 28.05.2007, Thus, the
Appellant was not under obligation to satisfy the award in favour of the
Claimants.
4. On the other hand, the learned counsel for the Respondents No.1 to 4
urges that the compensation awarded is just and reasonable and that the
Insurance Company has failed to prove any breach of the terms and
conditions of the policy.
QUANTUM:
5. The Claim Petition was filed by the five Petitioners which were the wife,
son, parents and the younger brother of the deceased. Respondent Radha
Devi entered the witness box as PW4. In her affidavit Ex.PW4/A, she
was completely silent if her husband Prem Shankar Chauhan (who was
alive at the time of the accident and was one of the Petitioners) was
dependent on his deceased son Mukesh. In cross-examination, she
deposed that she had four sons and one daughter. She testified that there
was a son elder to deceased Mukesh. Her other son Mukesh was aged 28
years on the date of recording the statement. Age of Respondent No.4
(Nitesh Chauhan) has not come on record. From the ages of the deceased
and other brothers, it can be inferred that Nitesh Chauhan may be 24-26
years on the date of the accident. No evidence was led that Nitesh
Chauhan was dependent on deceased Mukesh. In Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr., (2009) 6 SCC 121, it was laid down
that unless there is evidence to the contrary, father is not to be considered
as a dependent. In this case, no evidence was produced that the father
was dependent on deceased Mukesh. In this view of the matter, there
were just three dependents, that is, Respondents No.1, 2 and 3. The
deduction towards personal and living expenses would accordingly be
1/3rd as against 1/4th deducted by the Claims Tribunal (Sarla Verma
(supra). Further, there would be liability of income Tax of `3,000/- on an
income of `15,300/- per month taken by the Claims Tribunal. The loss
of dependency in view of the above discussion comes to `28,89,600/-
(`15300/- x 12 =`1,83,600/- - `3,000/-(Income Tax) + 50% x 2/3 x 16).
6. The Claims Tribunal relying on the Judgment of this Court in Kailash
Kaur and Another v. New India Assurance Company Limited, MAC.
APP.318/2008 granted ` 25,000/- each (`1,00,000/- in total) to the
Respondent (Claimants) under the head of 'Loss of Love and Affection'.
I may mention here that, where the Claimants are entitled to loss of
dependency on actual basis, normally a nominal sum is awarded under
the head of 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 ` 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. The compensation awarded is tabulated hereunder:
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Loss of Dependency `33,05,000/- `28,89,600/-
2. Loss of Love and ` 1,00,000/- ` 25,000/-
Affection
3. Loss of Consortium ` 10,000/- ` 10,000/-
4. Funeral Expenses ` 10,000/- ` 10,000/-
5. Loss to Estate ` 10,000/- ` 10,000/-
Total ` 34,35,000/- ` 29,44,600/-
LIABILITY:
8. It is urged by the learned counsel for the Appellant that the Appellant
examined Gaurab Gauba(R3W1) who testified that driver Surender
Kumar possessed valid driving licence from 31.05.2007 to 11.01.2010.
The learned counsel further relies on the document Ex.R3W1/1 to press
her point that the driver did not possess a valid driving licence on the date
of the accident.
9. I have perused the Trial Court record. R3W2 Babu Lal merely proved the
document Ex.R3W1/1. This document simply shows that a licence
No.C09111999145952 was issued only in the name of Surender Kumar
on 09.02.1988 which was valid to drive motor cycle and heavy transport
vehicle on 09.02.1988. It further shows that licence was last valid upto
11.01.2010 and that it was cancelled on 12.07.2007. It was only the
Appellant's Investigator who had mentioned in his application that the
licence is valid from 31.05.2007 to 01.01.2010. It was nowhere stated by
the witness from the Transport Authority that the licence was valid from
31.05.2007 only. Admittedly, no notice under Order 12 Rule 8 CPC was
issued to the driver and owner to produce the driving licence possessed
by the driver on the date of the accident. Moreover, an insurer can
provide a wider coverage than under the Act. Section 149(2)(a) of the
Act simply provides that an insurer can provide one of the conditions as
laid down in Section 149(2)(a) and (b) while entering into a contract of
insurance. In the instant case, no notice was issued to the insured to
produce the original insurance policy. The Appellant Insurance Company
was precluded to produce secondary evidence to prove the insurance
policy without first laying foundation that the primary evidence was not
forthcoming. Thus, the Appellant Insurance Company is not entitled to
avoid its liability under the insurance policy.
10. Thus, the Appellant Insurance Company failed to prove any conscious
and wilful breach of the terms and conditions of the policy. It was,
therefore, not entitled to avoid the liability.
11. In view of above, the compensation is reduced from `34,35,000/- to
`29,44,600/-.
12. The excess amount of `4,90,400/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
13. The balance amount of compensation payable shall be disbursed in favour
of the Respondents (Claimants) in term of the orders passed by the
Claims Tribunal.
14. The Appeal is allowed in above terms.
15. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
16. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 27, 2012
pst
