Future Generali India Insurance ... vs Rina Devi & Ors
2014 Latest Caselaw 795 Del

$~35
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%             Judgment delivered on: 11th February, 2014


+      MAC.APP. 1131/2012

FUTURE GENERALI INDIA INSURANCE
CO LTD                                        ..... Appellant
                       Represented by: Ms. Suman Bagga, Adv.

                          versus

RINA DEVI & ORS                                             ..... Respondents
                                   Represented by: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Present appeal is directed against the impugned award dated 19.09.2012, whereby ld. Tribunal has granted compensation for a sum of Rs.17,94,582/- (wrongly typed as Rs.15,72,638/-) 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 there are 7 dependents, i.e., wife, five children and mother. However, Ld. Tribunal has considered 8 dependents, i.e., wife, five children and parents, accordingly deducted 1/10th towards personal expenses from the income of the deceased while calculating the compensation.

3. Ld. Counsel further submitted that as per the settled law, father cannot be considered as dependent, therefore, total dependents are 7 in number and

keeping the dependents into view Ld. Tribunal ought to have deducted maximum 1/6th towards personal expenses.

4. Ld. Counsel further 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 recover the same from respondent nos. 9 and 10.

5. I heard Ld. Counsels for the parties.

6. 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."

7. Admittedly, recovery rights have been granted. Therefore, I do not

find any merit on this issue.

8. Perusal of the record and impugned award reveal that there are eight dependents in number, i.e., five minor children, widow wife and the parents. No witness was examined by the appellant / insurance company to prove that the father of the deceased was independent and was not dependent upon him.

9. It is settled law that if the dependents are more than six in number, then the deduction towards personal expenses would have 1/5th. This view has been affirmed by the Apex Court in the case of Reshma Kumari and Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC 65 and Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563. Therefore, Ld. Tribunal has wrongly deducted 1/10th towards personal expenses from the salary of the deceased while calculating the compensation amount.

10. Therefore, keeping in view the dictum of the Apex Court in Reshma Kumari & Ors. (Supra), I reduce the personal expenses from 1/10th to 1/5th.

11. I note that towards the non-pecuniary damages, Ld. Tribunal has granted Rs.10,000/- each towards funeral expenses and for loss of consortium. Though, no appeal has been filed by the respondents / claimants for enhancement of the compensation amount, however, while considering the quantum, it is the duty of the court to see whether fair and just compensation has been granted. Therefore, relying on the dictum of Rajesh and Ors. (Supra), this Court enhances Rs.1,00,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses.

12. 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. 16,64,582.4/- Rs.14,79,628.8/-

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 funeral Rs.10,000/- Rs.25,000/-

expenses

Total Rs.17,94,582.4/- Rs.17,14,628.8 Rounded off to Rs.1714,630/-

Hence, an amount of Rs.79,952/- (Rs.17,94,582.4 - Rs.17,14,628.8).

is reduced from compensation.

Thus, the compensation amount is assessed for Rs.17,14,630/-.

13. 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.

14. 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.

15. Statutory amount be released in favour of the appellant.

16. In view of the above, the appeal stands disposed of.

CM. No. 18209/2012 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