Oriental Insurance Co Ltd. vs Hari Om Kaushik & Ors.
2013 Latest Caselaw 1645 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%             Judgment delivered on: 10th April, 2013

+      MAC.APP. 683/2011

       ORIENTAL INSURANCE CO LTD.                         ..... Appellant
                                Through: Mr. Pradyot Pravash and
                                Mr. Abhishek Kumar, Advs.
                    versus
       HARI OM KAUSHIK & ORS.                             ..... Respondents
                                Through: Mr. Ashok Popli, Adv. for R1 and
                                R2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Instant appeal has been preferred against the impugned award dated 04.05.2011 passed by the ld. Tribunal, whereby ld. Tribunal has granted compensation against the appellant and in favour of the respondents / claimants as under:

"1. Loss of dependency (Rs.7875 x 12 x 16) Rs. 15,12,000/-

       2.  For Funeral Expenses                          Rs. 10,000/-
       3.  For Loss of Love and Affection               Rs. 1,25,000/-
       4.  For loss of consortium                       Rs. 10,000/-
       5. For Loss of Estate                            Rs. 10,000/-"

2. Instant appeal has been filed mainly on the ground that ld. Tribunal has erred in not considering the provision provided under Section 149 (2)(a)

(i) (c) that no sum shall be payable by an insurer where there is no valid permit in respect of the insured vehicle.

3. Ld. Counsel appearing on behalf of the appellant has relied upon a case of National Insurance Co. Ltd. v. Challa Bharathamma & Ors. 2004 ACJ 2094 wherein it is held that a person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof.

4. Ld. Counsel further submits that plying a vehicle without a permit is an infraction. Therefore, in terms of Section 149 (2) defence is available to the insurer on that aspect.

5. The second ground he has argued that the ld. Tribunal has granted Rs.1,25,000/- for love and affection which is on a very higher side.

6. The third ground he has argued that as per the case of Sarla Verma v. DTC & Ors (2009) 6 SCC 121, keeping in view the age of the deceased, as he was 35 years of age, the future prospects should have been 30% instead of 50%.

7. On the other hand, ld. Counsel appearing on behalf of respondent nos. 1 & 2 (driver and owner) submitted that neither a issue has been framed by the ld. Tribunal whether owner of the vehicle was having driving licence, nor the appellant had led any evidence thereto.

8. Therefore, in the absence of both the situation mentioned above, the version of the ld. Counsel for the appellant cannot be allowed at this stage.

9. On the issue of future prospects, ld. Counsel appearing on behalf of the respondents submits that ld. Tribunal has rightly granted 50% future prospects, keeping in view the age of the deceased and applying the case of Sarla Verma (Supra).

10. Ld. Counsel further submits that the three Judges Bench of the Supreme Court in case of Reshma Kumari & Ors. v. Madan Mohan & Ors. in Civil Appeal no. 4646/2009 has affirmed the dictum of the Sarla Verma (Supra). Therefore, there is no substance in the appeal filed by the appellant.

11. It is not in dispute that the insurer cannot take the defence available under Section 149 of the Motor Vehicles Act, 1988. But in the present case the appellant / insurance company has not examined any witness to prove that the offending vehicle was plying without valid permit.

12. On this issue, even no steps were taken by the appellant to get the issue framed. Therefore, in the absence of same adverse inference cannot be recorded.

13. As regards the compensation for loss of love and affection, each and every case has its own facts and circumstances. After perusal of the record, age of the deceased, number of dependants and other relevant facts, the ld. Tribunal has rightly granted Rs.1,25,000/- for loss of love and affection. In my considered opinion, this amount is not on a higher side.

14. On the issue of loss of future prospects, keeping the age of deceased into view, dictum in Sarla Verma's case (Supra) which is further affirmed

by three Judges Bench of the Apex Court in Reshma Kumari (Supra), in my considered opinion, the ld. Tribunal has rightly granted 50% for loss of future prospects.

15. In view of the above discussion. I find no discrepancy in the award dated 04.05.2011 passed by the ld. Tribunal.

16. Consequently, instant appeal is dismissed with no order as to costs.

17. Registry of this Court is directed to release statutory amount of Rs.25,000/- in favour of the appellant.

SURESH KAIT, J

APRIL 10, 2013 jg