Delhi High Court
National Insurance Co Ltd vs Partha Sarthi Ghosh & Ors on 15 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 65/2012
Date of decision : October 15, 2014
NATIONAL INSURANCE CO LTD ..... Appellant
Through Ms. Manjusha Wadhwa and
Ms. Arpan Wadhawan, Advocates
versus
PARTHA SARTHI GHOSH & ORS ..... Respondents
Through Mr. J.P.N. Shahi along with
Ms. Kirti Sethi, Advocates
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J(ORAL):
1. By the present appeal, the appellant/insurance company seeks to
impugn the Award dated 19.10.2011. The brief facts are that the
claimant/respondent No.1 on 15.07.2007 was standing with his family at
Satya Cinema Panshop, District Centre, Janakpuri, Delhi. The driver of
the offending RTV driven by respondent No.2 in a rash and negligent
manner hit the claimant/respondent No.1 with great force. Respondent
No.1 fell down and got injuries. Hence, the claim petition was filed.
2. Based on the evidence on record, the tribunal awarded a total
compensation of Rs.13,87,486/- details of which are as follows:
The total compensation is assessed as under:
Treatment expenses: Rs.1,44,546/-
Pain and sufferings: Rs. 50,000/-
Conveyance & special diet: Rs. 5,000/-
Compensation for loss of income Rs. 89,842/-
Compensation on account of disability: Rs.10,78,098/-
Loss of enjoyment of life Rs.50,000/-
Total: Rs.13,87,486/-
3. Learned counsel for the appellant has made three submissions
challenging the amount. She firstly submits that the driver of the
offending RTV did not have a driving license and has also been challaned
under Sections 3/181 of the MV Act. Hence, she submits that the
appellant/insurance company would not be liable to pay compensation.
She secondly submits that the tribunal has erroneously assessed the
functional disability at 40% which is without any basis. She thirdly
submits that the tribunal has wrongly taken the income of respondent
No.1 on the date of the accident as Rs.1,79,683/- per annum based on one
Income Tax Return filed by respondent No.1 for the Assessment Year
2005-06. She submits that the income could not have been assessed based
on a solitary Income Tax Return and apart from this Return there is no
other evidence on record to show as to what was the income of
respondent No.1. Hence, she submits that compensation has been
wrongly assessed and prays for reduction in the same.
4. Coming to the issue of driving license of the driver/respondent
No.2. The tribunal did not accept the said contention of the appellant
company. Relying upon the judgment of the Supreme Court in the case of
National Insurance Company Limited vs. Swaran Singh & Ors, (2004)3
SCC 297, the tribunal held that it is not enough to prove that the driver
did not have a licence but the appellant company had to prove the breach
of the terms and condition of the insurance policy which has not been
done in this case.
5. I will look at the evidence on this issue. Sh. S.S. Bisht, Assistant of
the appellant/insurance company has filed his affidavit by way of
evidence in R3W1 where he has pointed out that the company has served
the driver and owner of the offending vehicle with a notice under Order
XII Rule 8 CPC through Sh. Vijay Kumar Gupta, Advocate. The notice is
Ex. R3W1/A. The registered postal receipts have also been placed on
record. He has further averred that the driver/respondent No.2 was
challaned by the police under Sections 3/181 of the MV Act and hence is
guilty of violation of terms and conditions of the insurance policy.
6. In my opinion, the evidence on record is sufficient to conclude that
the driver of the offending vehicle did not have a driving license. A notice
under Order XII Rule 8 CPC has been duly served which has been proved
by R3W1. Challan has been filed by the police under Sections 3/181 MV
Act indicating that even as per the police investigation, respondent No.2
did not have driving license.
7. Reliance on the case of National Insurance Company Limited vs.
Swaran Singh (Supra) would not be correct. In the judgment in the said
case, the Supreme Court held that the mere absence of licence or fake or
invalid license is not a valid defence to the insurer to avoid its liability.
To avoid its liability, the insurer has to prove that the insured was guilty
of negligence and failed to exercise reasonable care in the matter of
fulfilling the policy.
8. In the present case, the driver and the owner of the said vehicle
never entered appearance. Hence they did not prove that they acted in a
bonafide manner or with reasonable care. Accordingly, the ratio of the
Supreme Court in the case of National Insurance Company Limited vs.
Swaran Singh (Supra) would not be applicable to the facts and
circumstances of the present case.
9. Keeping in view the judgment of the Supreme Court in the cases of
Jawahar Singh vs. Bala Jain & Ors 2011 (5) Scale 494 and United
India Insurance Company Limited vs. Rakesh Kumar Arora and Ors
2008 (1) CCC 359, in my opinion, it would be in the interest of justice
that the appellant may comply with the directions in the Award. Having
complied with the Award they will be entitled to seek recovery rights
from respondents No.2 and 3, namely the driver and owner of the
offending vehicle.
10. As far as the assessment of the functional disability is concerned,
as per the disability certificate Ex.PW1/6, respondent No.1 is suffering
from Post Traumatic Ankylosis of right knee with permanent disability of
53% in relation to the right lower limb. PW1 in his affidavit by way of
evidence has stated that he is unable to do any work or earn his livelihood
for himself and his family members. He has further stated that at the time
of accident he was drawing a monthly salary of Rs.21,000/- per month.
However, due to his injury and disability he is unable to perform his
duties and has lost his employment. There is no meaningful cross
examination of PW1 regarding these averments. Accordingly, there is no
reason to disbelieve the stand of the claimant. There is no merit in the
submission of the appellant regarding assessment of functional disability
by the tribunal.
11. As far as the assessment of the income of respondent No. 1 is
concerned, a perusal of the concerned ITR for the assessment year 2005-
06 shows that the return has declared an annual salary of Rs.1,79,683/-.
The concerned Form-16 also shows that each month the employer was
deducting TDS and depositing with the Income Tax Department. Return
also shows that respondent No.1 was working as Assistant Manager,
Customer Services, with the Employer EMU Lines Pvt. Ltd. Accordingly,
there are no grounds to interfere with the findings recorded by the
tribunal assessing the annual salary of respondent No.1 for assessing the
loss of income at Rs.1,79,683/-. There is no merit in the said two
submissions of the appellant pertaining to grant of compensation to
respondent No.1.
12. The present appeal is accordingly disposed of as above. The
statutory amount be refunded to the insurance company. All interim
orders including the interim orders dated 17.01.2012 and 19.07.2012,
stand vacated.
13. As per order dated, 17.01.2012, the appellant was directed to
deposit 80% of the Award amount out of which, 2.5 lakh was released on
19.07.2012. Let the balance Award amount as lying deposited with the
UCO Bank, Delhi High Court Branch be released to respondent No.1
with accumulated interest as directed by the tribunal. The appellant may
deposit the remaining amount with up to date interest as awarded by the
tribunal within four weeks from today, with the Registrar General of this
High Court. The Registrar General will thereafter release the amount to
respondent No.1.
JAYANT NATH, J
OCTOBER 15, 2014
'raj'
