Delhi High Court
The New India Ins. Co. Ltd. vs Bimlesh & Ors. on 5 March, 2015
$-17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 5th March, 2015
+ MAC.APP 16/2014
THE NEW INDIA INS. CO. LTD. ..... Appellants
Through: Mr.J.P.N. Shahi, Advocate
versus
BIMLESH & ORS. ..... Respondents
Through: Mr. Kamaldeep Advocate for
Respondents no.1 to 7
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is directed against the judgment dated 14.10.2013
passed by the Motor Accident Claims Tribunal (Claims
Tribunal), whereby compensation of Rs.18,42,408/- was
awarded for the death of Ved Ram who suffered fatal injuries in
a motor vehicle accident which occurred on 09.10.2012.
2. During enquiry before the Claims Tribunal, it was claimed that
deceased Ved Ram used to carry out the job of cleaning at the
house of Mr. Yashwant Sinha, former Union Minister and was
also running a food stall. He was drawing a salary of Rs.6,000/-
from Mr. Yashwant Sinha for part time job and earning another
Rs.15,000/- from his employment by running the stall. The
Claims Tribunal in the absence of any evidence with regard to
the deceased's income took minimum wages of an unskilled
worker, added 50% towards the future prospects, deducted 1/5th
towards personal and living expenses, applied the multiplier of
16 (as per the age of the deceased) to compute the loss of
dependency as Rs.16,17,408/-. The Claims Tribunal further
awarded certain amounts towards non-pecuniary damages to
award the overall compensation of Rs.18,42,408/-.
3. The following contentions are raised on behalf of the Appellant:
(i) In the absence of any evidence with regard to the future
prospects, addition of 50% in deceased's estimated
income could not have been granted.
(ii) The compensation awarded towards non-pecuniary
damages is on the higher side; and
(iii) The Claims Tribunal held that there was breach of the
terms and conditions of the insurance policy still recovery
rights were not granted holding that it was a non-
fundamental breach of the terms and conditions of the
policy.
4. On the other hand, the learned counsel appearing for
Respondent no. 7 states that the compensation awarded is too
meager and that the Appellant has been rightly made liable to
pay the compensation.
Income of the deceased and compensation.
5. I have perused the trial court record. Smt. Vimlesh, deceased's
widow filed her Affidavit Ex.PW-1/A. In para 3 of the
Affidavit, she testified as under:-
"That my late Husband was working as part-time
cleaning worker working at Quarter No.6, Kushak
Road, New Delhi-110011 and used to carry out the
job of cleaning the car of Mr. Yashwant Sinha,
Hon'ble Ex-Minister (BJP) in the morning and
evening for two hours each and earning `6,000/-
p.m. However, during the day my husband was
running small joint selling Chinese food and used
to earn `15,000/- p.m. He was aged about 33 yrs at
the time of his death."
6. In cross-examination, a suggestion was given that PW-1's
husband was not earning Rs.6,000/- p.m. by doing part time
work and he was not earning Rs.15,000/- p.m. as stated in para
3 of the Affidavit. At the same time, no suggestion was given to
Respondent no.1 that the deceased was not doing the cleaning
work at the house of Mr. Yashwant Sinha, Former Union
Minister. No suggestion was given that the deceased was not
running a stall and selling Chinese food. In view of this, the
Claims Tribunal should have made assessment of the
deceased's income from carrying out the work which was
established. It was borne out from the record that the deceased
was living in the servant quarters in the house allotted to Mr.
Yashwant Sinha. Even in absence of any documentary
evidence, it can be assumed that the deceased must be earning
Rs.2,500/- p.m. from doing part time cleaning work and
Rs.8,000/- p.m from selling Chinese food. Thus, I take income
of the deceased to be Rs.10,000/- p.m.
7. I agree with the learned counsel for the Appellant that in the
absence of any finding with regard to the future prospects
addition of 50% was not permissible. In this regard a reference
may be made to judgment of this Court in HDFC Ergo General
Insurance Co. Ltd. v. Smt. Lalta Devi and Ors. MAC APP No.
189/ 2014 decided on 12.01.2015 whereby the question was
dealt with a great length.
8. Hence, the loss of dependency applying Sarla Verma (Smt.) &
Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121
which has been affirmed by three judge bench in Reshma
Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65
comes to Rs.16,12,800/- (Rs.10,500 x 12 - 1/5 x 16).
9. The compensation awarded towards non-pecuniary has to be
consonance with Rajesh & Ors. v. Rajbir Singh & Ors., (2013)
9 SCC 54. Thus, in addition, the claimants would further be
entitled to a sum of Rs.10,000/- towards loss to estate,
Rs.1,00,000/- each towards loss of love and affection and loss
of consortium and Rs.25,000/- towards funeral expenses. The
overall compensation hence, comes to Rs.18,47,800/-. The
compensation awarded therefore, cannot be set to be exorbitant/
excessive.
10. As far as liability of the Appellant Insurance Company to pay
the compensation is concerned, I agree with the conclusion
reached by the Claims Tribunal on a different reasoning. In my
view, the Appellant failed to prove that there was willfull and
conscious breach of the terms and conditions of the insurance
policy by the insured and therefore, the Appellant cannot avoid
its liability. It is borne out from the record that Respondent no.1
driver of the vehicle filed his affidavit Ex.R-1W1 and entered
the witness box as R1W1.He deposed that he possessed a
license to drive the vehicle. He was not given a suggestion that
the license possessed by him was not valid to drive a
commercial vehicle. All the more, what is required to be proved
by the insurer is that there was willful breach of the terms and
conditions of the policy by the insured. No notice was given to
the insured to produce the driving license held by the driver.
Without giving notice to the insured, it cannot be said as to
under what circumstances the driver was engaged and which
license was seen by him at the time of engaging the driver.
Thus, the insurance company cannot escape its liability.
11. The appeal therefore has to fail. The same is accordingly
dismissed.
12. The compensation awarded shall be released / held in a fixed
deposit in terms of the order passed by the Claims Tribunal.
13. The statutory amount, if any, deposited shall be refunded to the
Appellant.
(G.P. MITTAL)
JUDGE
MARCH 05, 2015/rs
