Delhi High Court
Reliance General Insurance Co. ... vs Smt. Neetu Devi And Others on 20 May, 2015
Author: G.P. Mittal
$ - 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th May, 2015
+ MAC. APP. 244/ 2014
RELIANCE GENERAL INSURANCE CO. LTD ...... Appellant
Through: Mr. Neerja Sachdeva, Advocate
Versus
SMT. NEETU DEVI AND OTHERS ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant has filed the present appeal against the judgment
dated 10.12.2013 passed by the Motor Accident Claims Tribunal
(the Claims Tribunal) whereby compensation of `15,77,575/- was
awarded in favour of Respondents no.1 to 4 for the death of Shri
Amar Kumar, who suffered fatal injuries in a motor vehicular
accident which occurred on the intervening night of 04-05.03.2010.
2. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of the
crane bearing Registration no.HR-63A-5804 by its driver
Respondent no.6. Further, the Claims Tribunal took minimum
wages of a non-matriculate on the date of the accident, added 50%
towards future prospects, deducted 1/4 towards personal and living
expenses and applied the multiplier of 17 to compute the loss of
dependency at `13,42,575/-.
3. In addition, the Claims Tribunal awarded a total sum of `2,35,000/-
towards non-pecuniary damages to compute the overall
compensation of `15,77,575/-. The same was to be paid by the
Appellant Insurance Company with right to recover the amount
paid from Respondent no.5 (insured) as Respondent no.5 had failed
to produce the original Driving License of Respondent no.6
(driver) despite service of notice to him under Order XXII Rule 8
of the Code of Civil Procedure, 1908 (CPC).
4. The following contentions are raised by the learned counsel for the
Appellant Insurance Company:-
(i) The driver of the offending vehicle i.e. crane bearing
Registration no.HR-63A-5804 did not possess a valid
driving license at the time of the accident in question which
amounts to breach of the terms and conditions of the
Insurance Policy. Thus, the Appellant ought to have been
exonerated from its liability to pay the compensation rather
than only granting recovery rights;
(ii) Father of the deceased could not be considered as dependent
upon the deceased and therefore deduction towards personal
and living expenses ought to have been 1/3 instead of 1/4 as
taken by the Claims Tribunal;
(iii) Addition of 50% was wrongly made towards future
prospects though there was no evidence with regard to
permanent employment or good future prospects of the
deceased; and
(iv) Award under non-pecuniary heads is made on higher side.
LIABILITY
5. It is urged by the learned counsel for the Appellant that the driver
of the offending vehicle i.e. crane bearing Registration no.HR-
63A-5804 did not possess a valid driving license at the time of the
accident which amounts to breach of the terms and conditions of
the Insurance Policy. This is evident from the fact that Respondent
no.5 (insured) failed to produce the original Driving License of
Respondent no. 6 (driver) on record despite service of notice to him
under Order XXII Rule 8 of the CPC. Thus, the Appellant ought to
have been exonerated from its liability to pay the compensation
completely rather than granting only recovery rights.
6. I have the Trial Court record before me.
7. Notice under Order XXII Rule 8 CPC dated 20.04.2012 (Ex.
R4W1/2) sent to Respondent no.5 and postal receipts of the same
(Ex.R4W1/3 (colly)) are available on record and proved by R4W1
Shri Navneet Goel, Deputy Manager, Legal, Reliance General
Insurance Company Limited. However, original Driving License
of Respondent no.6 is not placed on record. Thus, there is no
evidence that Respondent no.6 held an effective and valid Driving
License on the date of the accident. This amounts to wilful and
conscious breach of terms and conditions of the Insurance Policy
by Respondent no.5. However, in view of the three Judge Bench
decisions of the Hon'ble Apex Court in Sohan Lal Passi v. P. Sesh
Reddy, (1996) 5 SCC 21; United India Insurance co. Ltd. v. Lehru
and Ors., (2003) 3 SCC 338 and a judgment of this Court in Oriental
Insurance Company Limited v. Rakesh Kumar and Others, 2012
ACJ 1268, the Insurance Company is only entitled to recovery
rights from the insured if it discharges proves that there was wilful
and conscious breach of the terms and conditions of the Insurance
Policy by the insured.
8. Since recovery rights have already been granted to the Appellant
Insurance Company, I see no reason to interfere with this finding of
the Claims Tribunal.
COMPENSATION
9. PW1 Smt. Neetu Devi, wife of the deceased Amar Kumar testified
that her husband was employed as an Electrician with Respondent
no.5 to remove electricity poles on the roads and he was earning
more than `8,000/- per month from that job. The said fact was not
disputed in her cross-examination as well. To the similar effect was
the deposition of PW2 Shri Rakesh, co-worker of the deceased and
eye-witness to the accident. Though there is no documentary proof
with regard to the deceased's employment, yet it is established that
at the time of the accident, the deceased was cutting an electricity
pole with a gas cutter near Dhaula Kuan in front of a Petrol Pump
on Gurgaon Road, NH-8. At that very time, Respondent no.6 on
direction of Respondent no.5 to dismantle the pole itself by using
the offending vehicle pushed the pole too hard which fell upon the
deceased leading to his death in itself proves the occupation of the
deceased which was further corroborated by testimonies of PW1
and PW2. Thus, as an Electrician I believe the monthly income of
the deceased to be at least `8,000/-.
10. Since the deceased was neither in permanent employment, nor is
there any evidence available with regard to the deceased's good
future prospects, no addition ought to have been made towards
future prospects.
11. Further, since there is no evidence with regard to Respondent no.4
(deceased's father) being financially dependent upon the deceased,
only Respondent no.1 (widow) and Respondents no.2 and 3 (minor
children) can be taken as deceased's dependants. Thus, deduction
towards personal and living expenses would be 1/3 in view of Smt.
Sarla Verma and Ors. v. Delhi Transport Corporation and Anr.,
(2009) 6 SCC 121.
12. As per the School Leaving Certificate/Transfer Certificate of the
deceased (Ex.PW1/12), his date of birth is 27.12.1981. Therefore,
the deceased's age on the date of accident would be 28 years.
Consequently, the appropriate multiplier as taken by the Claims
Tribunal is 17.
13. The loss of dependency hence, come to `10,88,000/- (8,000/- x 12
x 2/3 x 17).
14. As far as award towards non-pecuniary damages is concerned, it is
now settled that the legal representatives are entitled to a sum of
`1,00,000/- each towards loss of love and affection and loss of
consortium, `25,000/- towards funeral expenses and `10,000/-
towards loss to estate in view of the three Judge bench decision of
the Supreme Court in Rajesh and Others v. Rajbir Singh and
Others, (2013) 9 SCC 54 as granted by the Claims Tribunal.
15. The compensation is accordingly reduced from `15,77,575/- to
`13,23,000/-.
16. By an order dated 18.03.2014, execution of the award was stayed
on deposit of the entire awarded amount along with up-to-date
interest accrued thereon by the Appellant and 80% of the same was
ordered to be released to Respondents no.1 to 4.
17. The remaining compensation shall also be released to Respondents
no.1 to 4 alongwith proportionate interest. The excess amount
along with residue interest shall be refunded to the Appellant
Insurance Company.
18. The appeal is disposed of in above terms.
19. Pending applications, if any, also stand disposed of.
20. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
MAY 20, 2015
sj
