M.K. Sharma & Ors. vs Pramod Chaudhary & Ors.
2015 Latest Caselaw 251 Del

$~R-1 & 2

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 12th January, 2015

+        FAO.No.726/2003

         ORIENTAL INSURANCE CO. LTD.
                                                      ..... Appellant
                                    Through:    Mr. Shoumik Mazumdar, Advocate

                               Versus

         M.K. SHARMA & ORS.                                       .....Respondents
                      Through:                  None

+        FAO.No.894/2003

         M.K. SHARMA & ORS.
                                         .                        .... Appellants
                                    Through:    None

                               Versus

         PRAMOD CHAUDHARY & ORS.                .....Respondents
                    Through: Mr. Shoumik Mazumdar, Advocate for
                             Respondent no.3.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                        JUDGMENT

G. P. MITTAL, J. (ORAL)

1. These two appeals arise out of judgment dated 25.07.2003 passed by the

Motor Accident Claims Tribunal(the Claims Tribunal) whereby

compensation of Rs.2,52,400/- was awarded in favour of claimants no.1

and 2, who are the parents of deceased Gaurav.

2. The appeal, FAO No.726/2003 is filed by the Insurance Company for

reducing the amount of compensation while the Cross-Appeal

FAO.894/2003 is for enhancement of compensation on the ground that

compensation awarded is too less and meagre.

3. In FAO. 726/2003 preferred by Oriental Insurance Co. Ltd., the limited

ground raised by the learned counsel for the Appellant is that the

Appellant successfully proved the breach of the terms and conditions of

the policy. The Appellant was therefore, entitled to recovery rights

against the insured.

4. I have the Trial Court record before me. The Appellant insurance

company examined R3W-1 Mr. Harsh, Clerk from the office of Distt.

Transport Officer, Faridabad, Haryana and R3W-1 Mr. R.K. Goswami

also from the office of Distt. Transport Officer, Faridabad, Haryana.

Both the witnesses were confronted with the driving licence of the

accused placed on record from the criminal case. They testified that the

said driving licence was not issued by the Distt. Transport Officer,

Faridabad, Haryana. It is therefore, urged by the learned counsel for the

Appellant Insurance Company that even if the Insurance Company was

liable to initially pay the compensation to the third party, it was entitled to

recover the same from the insured who committed breach of the terms

and conditions of policy.

5. It is true that from the statement of the two witnesses mentioned above, it

was established that the driving licence in question was not issued by the

Distt. Transport Officer, Faridabad, Haryana. Copy of the insurance

policy was also sought to be proved as Ex.R3W1/A. But, at the same

time, no notice under Order 12 Rule 8 of Code of Civil Procedure,

1908(CPC) was issued to the insured to produce the driving licence of the

driver who had caused the accident. No notice was issued to even

produce the original insurance policy which, according to Mr. R.K.

Goswami was given to the insured. Had any notice been issued to the

insured, the owner(insured) might have come forward to prove that the

licence was genuine or that there was any other driving licence on the

basis of which he had employed the driver of the offending vehicle. In

view of this, the Appellant Insurance Company has failed to discharge the

initial onus placed on it that there was conscious and willful breach of the

terms and conditions of the policy.

6. The appeal (FAO 726/2003) filed by the Appellant Insurance Company

therefore, has to fail, it is accordingly dismissed.

7. Pending applications, if any, also stand disposed of.

8. The statutory amount of Rs.25,000/- shall be refunded to the Appellant

Insurance Company.

9. Coming to the Cross-Appeal (FAO 894/2003), the learned counsel for the

Appellants(claimants) has not come forward. Appropriately, the appeal

has to be dismissed for non-prosecution. At the same time, I have also

examined the merits of the case as well.

10. The deceased Gaurav was a bachelor and the claim petition was filed by

his parents, who are Appellants no.1 and 2 in FAO 894/2003. His income

was claimed to be Rs.4,000/- per month. The Claims Tribunal examined

Arun Kumar Tandon(PW3), government contractor with whom the

deceased Gaurav was claimed to be working. Arun Kumar Tandon

stated that a salary of Rs.4,000/- was being paid to the deceased Gaurav.

However, he did not produce any documentary evidence to support his

claim. It may be noted that any income beyond Rs.40,000/- per annum

was subject to Income Tax. Arun Kumar Tandon was put a question

regarding deduction of Income Tax. He stated that the income was not

taxable, which is not correct. In view of this, the Claims Tribunal rightly

took the income of the deceased on the basis of Minimum Wages of an

unskilled worker as no evidence with regard to his educational

qualifications was produced on record. In case of a bachelor, there has to

be deduction of 50% towards personal and living expenses as against

33% made by the Claims Tribunal. Similarly, the appropriate multiplier

will be as per the age of the claimants(their age being higher), whereas

the multiplier as per the age of the deceased was taken in the instant case.

Considering that the accident took place in the year 1999, the overall

compensation as awarded by the Claims Tribunal cannot be said to be on

the lower side.

11. The appeal being FAO 894/2003 is accordingly dismissed.

12. Pending applications, if any, also stand disposed of.

(G.P. MITTAL) JUDGE JANUARY 12, 2015 pst