Delhi High Court
Future General India Insurance Co ... vs Shakila Khatoon & Ors on 11 February, 2014
Author: Suresh Kait
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11th February, 2014
+ MAC.APP. 1135/2012
FUTURE GENERAL INDIA INSURANCE
CO LTD ..... Appellant
Represented by: Ms. Suman Bagga, Adv.
versus
SHAKILA KHATOON & ORS ..... Respondents
Represented by: Mr. V.N. Jha and Mr. B.K.
Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal is directed against the impugned award dated
19.09.2012, whereby ld. Tribunal has granted compensation for a sum of
Rs.13,43,758/- (wrongly typed as Rs.11,81,924/-) with interest @ 7.5% per
annum from the date of filing of the petition till realization of the amount.
2. Ld. Counsel appearing on behalf of the appellant submitted that the
driver of the offending vehicle was holding fake driving licence on the date
of accident. In such eventuality, Ld. Tribunal ought to have exonerated the
appellant from any liability. However, Ld. Tribunal directed the appellant /
insurance company to deposit the amount and thereafter recover the same
from respondent nos. 5 and 6, i.e., driver and owner of the offending vehicle.
3. Ld. Counsel for the appellant further argued that deceased was
rickshaw puller and was 43 years of age at the time of accident and stated to
be earning Rs.6,000/- per month. Since the proof of income was not filed,
therefore, Ld. Tribunal has assessed the income of the deceased as
Rs.6,422/- applicable to unskilled persons at the prevalent time as per the
Minimum Wages Act. Ld. Counsel further submits that keeping the age of
the deceased as 43 years into view Ld. Tribunal ought to have added 30% as
future prospects, however, erred in adding 50% in his income as future
prospects.
4. The issue of fake driving licence, no driving licence and invalid
driving licence was dealt with by this court in the case of Santosh Chabra
and Ors. v. Abhishek Gureja and Ors. MAC.A 805/2010 decided on
04.10.2013, wherein this court held as under:
"21. Law is settled on the issue of no licence, fake licence or
invalid driving licence in the case of New India Insurance
Company Ltd. v. Darshana Devi 2008 ACJ 1388. The
offending vehicle at the time of accident was being driven by
son of the owner of the vehicle, who was not holding any
licence to drive the same. Ld. Tribunal, while awarding the
compensation held that the amount shall be payable by the
insurer initially, however, the insurer will be at liberty to
recover the same from the owner of the offending vehicle. The
award passed by ld. Tribunal was challenged by the Insurance
Company, same was affirmed by the High Court and also
upheld by the Supreme Court.
22. In New India Assurance Co. Ltd. v. Kamla and Ors. etc.
2001 ACJ 843, wherein it is held as under:
"The position can be summed up thus: The insurer and
insured are bound by the conditions enumerated in the
policy and the insurer is not liable to the insured if there
is violation of any policy condition. But the insurer who is
made statutorily liable to pay compensation to third
parties on account of the certificate of insurance issued
shall be entitled to recover from the insured the amount
paid to the third parties, if there was any breach of policy
conditions on account of the vehicle being driven without
a valid driving licence.."
23. In National Insurance Co. Ltd. v. Swarn Singh, 2004
ACJ 1 while deciding the issue of driving licence, the Apex
Court has held as under:
"(iii) The breach of policy condition e.g., disqualification
of driver or invalid driving licence of the driver, as
contained in sub-section (2)(a)(ii) of section 149, have to
be proved to have been committed by the insured for
avoiding liability by the insurer. Mere absence, fake or
invalid driving licence or disqualification of the driver for
driving at the relevant time, are not in themselves
defences available to the insurer against either the
insured or the third parties. To avoid its liability towards
insured, the insurer has to prove that the insured was
guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy
regarding use of vehicles by duly licensed driver or one
who was not disqualified to drive at the relevant time. (iv)
The insurance companies are, however, with a view to
avoid their liability must not only establish the available
defence(s) raised in the said proceedings but must also
establish 'breach' on the part of the owner of the vehicle;
the burden of proof wherefor would be on them.
In V. Mepherson vs. Shiv Charan Singh [1998 ACJ 601
(Del.)], the the owner of the vehicle was held not to be
guilty of violating the condition of policy by willfully
permitting his son to drive the car who had no driving
licence at the time of accident. In that case, it was held
that the owner and insurer both were jointly and severally
liable."
24. In Oriental Insurance Co. Ltd. v. Rakesh Kumar &
Ors., 2012, ACJ, 1268, the Coordinate Bench of this court in
Para 44 has held as under:
"44. (ii) Even when there is a willful breach of the terms
of the policy under Section 149(2)(a) of the Act, the
Insurance Company is under obligation to indemnify the
liability towards the third parties and recover the same
from the owner.
(iii) Once the Insured proves that the driver did not hold
any driving licence to drive the Class of vehicle involved
in the accident or that the driving licence was fake;
requires the owner and driver to produce the driving
licence and if they failed to produce the same, the onus of
proving breach of policy would be deemed to be
discharged. Onus would then shift on the owner to
establish that he was not guilty of breach of the terms of
policy. In the absence of any evidence being produced by
the Insured, in such cases, it will be presumed that he was
guilty of a willful breach. The Insured in such cases,
would be entitled to recover the compensation paid to
third party in discharge of its statutory liability.
(iv) Where policy is avoided on proof or facts which
renders the Insurance policy void under Section 149(2)
(b) of the Act, the Insurance Company would not be under
obligation to pay even to third parties, as in such cases
the contract of insurance is non est."
25. No doubt, the respondent no. 3 / insurance company
successfully proved that there was breach of terms and
conditions of the policy, mere breach of the conditions of the
policy would not entitle the insurance company to avoid its
liability against the insured."
5. Admittedly, recovery rights have been granted. Therefore, I do not
find any merit on this issue.
6. On the issue of future prospects, I find force in the submission of Ld.
Counsel for the appellant. The Full Bench of the Apex Court while deciding
this issue in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6)
SCALE 563 has held as under:
"11. Since, the Court in Santosh Devi's case (supra)
actually intended to follow the principle in the case of
salaried persons as laid in Sarla Verma's case (supra)
and to make it applicable also to the self-employed and
persons on fixed wages, it is clarified that the increase
in the case of those groups is not 30% always; it will
also have a reference to the age. In other words, in the
case of self-employed or persons with fixed wages, in
case, the deceased victim was below 40 years, there
must be an addition of 50% to the actual income of the
deceased while computing future prospects. Needless to
say that the actual income should be income after
paying the tax, if any. Addition should be 30% in case
the deceased was in the age group of 40 to 50 years."
12. In Sarla Verma's case (supra), it has been stated
that in the case of those above 50 years, there shall be
no addition. Having regard to the fact that in the case of
those self-employed or on fixed wages, where there is
normally no age of superannuation, we are of the view
that it will only be just and equitable to provide an
addition of 15% in the case where the victim is between
the age group of 50 to 60 years so as to make the
compensation just, equitable, fair and reasonable. There
shall normally be no addition thereafter.
Therefore, keeping in view the age of the deceased as 43 years at the
time of accident and the dictum of Rajesh & Ors. (Supra), I reduce the
future prospects to 30%.
7. I note, in the present case Ld. Tribunal has awarded Rs.10,000/- each
towards funeral expenses and for loss of consortium.
8. In Appeal this court has the power to enhance the award amount, if
the compensation is not just and proper. Therefore, keeping in view the
dictum of Rajesh & Ors. (Supra), I enhance Rs.1,00,000/- towards loss of
consortium and Rs.25,000/- towards funeral expenses.
9. Consequently, the compensation amount comes as under:-
Sr. no. Heads of Calculation as per Calculation as per
Compensation MACT this Court
i. Loss of Rs. 12,13,758/- Rs.10,51,923.6/-
dependency
ii. Loss of Love Rs.1,00,000/- Rs.1,00,000/-
and affection
iii. Loss of Rs.10,000/- Rs.1,00,000/-
consortium
iv. Loss of Estate Rs.10,000/- Rs.10,000/-
v. Towards Rs.10,000/- Rs.25,000/-
funeral
expenses
Total Rs.13,43,758/- Rs.12,86,923.6
Rounded off
Rs.12,86,925/-
Hence, an amount of Rs.56,833/- (Rs.13,43,758 - Rs.12,86,925) is
reduced from the compensation.
10. Resultantly, the compensation is assessed for Rs.12,86,925/-.
11. I note vide order dated 19.10.2012, appellant was directed to deposit
50% of the award amount with the Claims Tribunal. Therefore, appellant /
insurance company is directed to deposit the balance compensation amount
with interest within five weeks from today.
12. On deposit, the Claims Tribunal is directed to release the same in
favour of the respondents /claimants in terms of the impugned award dated
19.09.2012 passed by the learned Tribunal on taking necessary steps by
them.
13. Statutory amount be released in favour of the appellant.
14. In view of the above, present appeal is partially allowed.
CM. No. 18283/2012
With the disposal of the instant appeal itself, instant application has
become infructuous and disposed of as such.
SURESH KAIT, J
FEBRUARY 11, 2014
Jg/sb
