Delhi High Court
New India Assurance Co. Ltd. vs Padam Singh & Ors. on 26 September, 2012
Author: G.P. Mittal
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th September, 2012
+ MAC. APP. No.766/2010
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Kanwal Chaudhary, Advocate
Versus
PADAM SINGH & ORS. ....Respondents
Through: Mr. S.C. Aggarwal with Mr. Harmesh
Kumar, Advocates for the Respondent
No.1(a) to 1(c)
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Co. Ltd. impugns a judgment dated
31.08.2010 passed by the Motor Accident Claims Tribunal(the Claims
Tribunal) whereby a compensation of `14,40,318/- was awarded in
favour of the Respondents No.1(a) to 1(c) for the death of deceased
Ameer Singh who died in a motor vehicle accident which occurred on
16.02.2006.
2. The finding on negligence is not challenged by the Appellant.
3. There is twin challenge to the conclusion reached by the Claims Tribunal.
First, the compensation awarded is exorbitant and excessive in asmuch as
the award towards loss of dependency has been made by taking the
monthly income of the deceased to be `12,054/-, whereas as per the
salary certificate, the income of the deceased was `10,910/- per month.
Second, the Appellant proved that the licence held by the Respondent
No.2 was fake, yet the Appellant was made liable to pay the
compensation. Even the recovery rights were not granted.
4. Per contra, the learned counsel for the Respondents (Claimants) states
that the compensation awarded is just and reasonable. It is urged that the
Appellant failed to prove wilful breach of the terms and conditions of the
policy and, therefore, the recovery rights were refused.
QUANTUM:
5. The compensation of `14,40,318/- awarded by the Claims Tribunal is
tabulated hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Loss of Dependency `14,10,318/-
2. Loss of Love and ` 10,000/-
Affection
3. Loss to Estate ` 10,000/-
4. Funeral Expenses ` 10,000/-
Total ` 14,40,318/-
6. It is urged by the learned for the Appellant that as per the salary
certificate Ex.PW1/13, the deceased Ameer Singh was getting a
conveyance allowance of `1,166/- per month. The said amount being
incidental to the deceased's employment was not for the benefit of the
family and was liable to be deducted while computing the loss of
dependency.
7. I have before me the salary certificate Ex.PW1/13 proved by the
Respondents. Admittedly, the amount of `1,166/- was paid towards
conveyance allowance. The sum was, therefore, liable to be deducted
from the deceased's income of `12,054/- to compute the loss of
dependency. Thus, the loss of dependency comes to `12,73,896/-
(`12054/- - 1,166/- = 10,888/- + 50% x 12 x 1/2 x 13).
8. The Claims Tribunal awarded a sum of `10,000/- each towards loss of
love and affection, loss to estate and funeral expenses. In Sunil Sharma v.
Bachitar Singh (2011) 11 SCC 425 and in Baby Radhika Gupta v.
Oriental Insurance Company Limited (2009) 17 SCC 627, the Supreme
Court granted `25,000/- under the head of loss of love and affection.
Thus, I award a sum of `25,000/- under the head loss of love and
affection.
9. The overall compensation thus comes to `13,18,896/- as against the
award of `14,40,318/-.
LIABILITY:
10. It is urged by the learned counsel for the Appellant that the Appellant
successfully proved breach of the terms of the policy. The
owner(Respondent No.3) did not come forward to give any explanation
as to the circumstances under which he entrusted the offending vehicle to
the Second Respondent. As, the Appellant discharged the initial onus of
proving the breach of the terms and conditions of the policy, thus, argues
the learned counsel, the Appellant was entitled to recovery rights.
11. During inquiry before the Claims Tribunal, the Second Respondent
(driver of the offending vehicle) filed a written statement denying
negligence. He took up the plea that he (Respondent No.2) was driving
commercial vehicles for the last many years. He was a trained driver and
possessed a valid driving licence which was taken into possession by the
police at the time of the accident. He stated that till date the Second
Respondent had not caused any accident (except the accident in
question). The Appellant did not controvert the claims made by Second
Respondent in the written statement. Rather, a vague and general defence
was taken that if the driver did not possess a valid driving licence at the
time of the accident, the Appellant would not be liable to pay any
compensation to the Claimants.
12. The Appellant relies on the report Ex.R3W1/A given by an Investigator
Prem Gautam. As per this report, the RTO Meerut informed him (the
Investigator) that licence No.DL-J-69916/Meerut/1990 was not issued by
the Motor Licensing Authority, Meerut. Thus, the licence held by the
Second Respondent at the time of the accident issued by the MLO
although was genuine cannot be said to be valid as the initial licence was
a fake one.
13. No official from the office of MLO, Meerut was summoned to prove the
report Ex.R3W1/B. Amit Kumar Singh, R3W1, Administrator Officer of
the Appellant did not depose anything about the signatures on the
document Ex.R3W1/B. Moreover, Ex.R3W1/B nowhere states that the
initial licence was a fake one. It is well settled that in order to avoid
liability, it is for the Insurance Company to prove that there is breach of
the terms and conditions of the policy. The Appellant Insurance
Company has utterly failed to establish that the initial licence issued in
the year 1990 was fake.
14. Moreover, no notice under Order XII Rule 8 CPC was given to the
Respondents No.2 and 3 calling upon them to produce the original licence
or to depose about its genuineness. No explanation was sought by giving
any notice to the owner that the licence held by the driver was fake.
Thus, there is no escape from the conclusion that the Appellant Insurance
Company failed to establish that there was any wilful breach of the terms
of the policy. The Appellant, therefore, cannot escape its liability to
indemnify the insured.
15. The excess amount of `1,21,422/- along with proportionate interest and
the interest, if any, accrued during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
16. The compensation awarded shall be released/held in fixed deposit in
terms of the Claims Tribunal's order.
17. The Appeal is disposed of in above terms.
18. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
19. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 26, 2012
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