National Insurance Co. Ltd. vs Rajni & Ors.
2015 Latest Caselaw 8560 Del

$~22
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Date of Decision : 18th November,2015
+                   MAC.APP. 33/2005

       NATIONAL INSURANCE CO. LTD.                ..... Appellant
                    Through: Mr.Pradeep Gaur & Mr.Amit Gaur,
                             Advocates

                                     versus

       RAJNI & ORS.                                        ..... Respondents
                          Through:      Mr.S.N.Prashar, Advocate for
                                        R-1.
                                        Mr.Ghanshyam Chaudhary, Advocate
                                        for R-3.

PRATIBHA RANI, J. (Oral)

1. The appellant National Insurance Company impugns the award dated 20.07.2004 (modified vide order dated 03.09.2004) passed by learned Motor Accident Claim Tribunal in Suit/Claim Petition No.143/2003 whereby a total compensation of `7,88,000/- has been awarded to the widow and parents of the deceased Sunil Kumar, who was aged about 29 years at the time of his death in an accident that has taken place on 07.12.2000.

2. No cross appeal or objections have been filed by the respondents and the finding of negligence has attained finality.

3. On behalf of appellant/insurance company, the following two contentions have been raised:-

(i) The income of the deceased has been wrongly calculated by the learned Tribunal, hence on quantum the award needs to be modified.

(ii) The insurance company is entitled to have recovery rights for the

reason that Arvind Kumar Singh - the driver of the offending vehicle i.e. Tempo bearing registration No.HR-26A-4061 was not holding a valid driving licence to drive transport vehicle.

4. Mr.Pradeep Gaur, Advocate for the appellant/insurance company has submitted that the accident in this case has taken place in year 2000 and at that time, the minimum wages for a skilled worker was `2948/- per month. After considering the future increase in the income, loss of dependency could have been `3000/- per month and after applying the multiplier of '16' as per Schedule-II of Motor Vehicle Act, the loss of dependency could have been `5,76,000/- instead of `7,68,000/-. It has been further submitted by Mr.Pradeep Gaur, Advocate that since on the date of accident, the driver of the offending vehicle was not holding a valid driving licence to drive the transport vehicle, the learned Tribunal should have granted recovery rights to the insurance company.

5. I have considered the submissions made on behalf of the appellant/insurance company.

6. So far as contention raised by learned counsel for the appellant/insurance company regarding loss of dependency is concerned, the learned Trial Court has noted the following facts:-

(i) The deceased Sunil Kumar was driving a commercial vehicle i.e. a bus at the time when the accident has taken place wherein he lost his life.

(ii) There was a valid driving licence in favour of the deceased issued by Transport Authority, Delhi Administration to drive HTV.

(iii) In December, 2000, the minimum wages for skilled worker was `2948/- and after considering the future prospects for purpose of calculating the compensation, the income has been assessed to be `6000/- per month for determining the quantum of compensation and after deducting 1/3rd towards

personal expenses financial dependency of the claimants had been considered as `4000/- per month.

7. It is well settled that while awarding the compensation, future prospects have to be considered by the learned Tribunal. Since the deceased was a skilled worker holding commercial driving licence to drive HTV, by no stretch of imagination it can be said that the assessment by the learned Tribunal regarding loss of dependency is exorbitant or on higher side or against settled legal principles. Thus, the plea of the appellant/insurance company challenging the quantum of compensation which is just `7,68,000/- in a case of death of a young driver aged about 29 years, no interference is warranted by this Court.

8. Another contention raised before this Court is to claim recovery rights. It is noteworthy that the learned Tribunal in the impugned award has noted the fact that evidence has been led by the insurance company to the effect that the licence issued in favour of Arvind Kumar Singh - driver of the offending vehicle on 16.12.1998 was only in respect of LMV/motorcycle. The accident has taken place on 07.12.2000 whereas the endorsement on his licence to drive transport vehicle has been made much thereafter i.e. with effect from 26.09.2001.

9. Perusal of the record reveals that that the driver and owner of the offending vehicle were impleaded as respondents No.1 and 2 in the claim petition before the learned Tribunal. They filed the written statement denying the factum of accident whereas the appellant/insurance company filed the written statement pleading that the insurance company shall not be liable to pay compensation unless it is established that the offending vehicle was being used in accordance with the terms and conditions of the insurance policy and the driver of the offending vehicle was holding a valid driving

licence at the time of accident. The insurance company had got the driving licence of Arvind Kumar Singh verified from the Transport Authority, Deoria, U.P. which confirmed that the driver was not holding any licence to drive a transport vehicle i.e. tempo on the date of accident.

10. The appellant/insurance company had already examined RW-1 Sh.Rameshwar Singh from Licencing Authority, Deoria, U.P. to prove the above fact. The terms and conditions of the insurance policy were got proved by examining its official. Not only that, notice under Order XII Rule 8 CPC was also sent to the owner and driver of the offending vehicle to produce the original driving licence as well as the registration certificate of the offending vehicle which they failed to produce. Thus, no evidence has been led by the owner and driver of the offending vehicle to prove that Arvind Kumar Singh - the driver was holding a valid driving licence to drive a tempo on the date of accident.

11. In such circumstances, the learned Tribunal ought to have considered the issue of grant of recovery rights to the insurance company especially in view of the finding given in the impugned award which is to the following effect:-

'.....Respondent no.3 insurance company has taken a plea in their WS that they are not liable to pay the amount of compensation on the ground that respondent no.1 was not holding a valid and effective driving licence. In this respect, the insurance company has examined Sh.Rameshwar Singh. He has stated on oath that as per record, the licence was issued for LMV/motor cycle in favour of Arvind Kumar Singh on 16/12/98 and an endorsement for transport vehicle was made w.e.f. 26/9/2001. The accident took place on 07.12.2000. Thus, apparently, the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the accident. However, this fact alone would not be sufficient for the insurance company to be discharged from its liability. Insurance company has not been able to prove that the insured has committed any wilful terms of breach of terms and conditions.'

12. While passing the impugned award, the learned Tribunal has not gone into this aspect especially when the plea of the insurance company right from the stage of filing the written statement is to deny its liability on the plea that the driver was not holding a valid driving licence and also proved this fact by examining the concerned witness from the Licencing Authority, Deoria, U.P. In the circumstances, the appellant/insurance company should have been granted the recovery rights by the learned Tribunal.

13. I am supported in this view by the judgment of this Court in New India Assurance Company Ltd. v. Sanjay Kumar & Ors., ILR (2007) 11 Delhi 733, wherein it was held as under:

"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.

24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving licence. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."

14. In view of the above discussion, the appeal is allowed to the limited extent that the appellant/insurance company is granted recovery rights to recover the amount of compensation paid to the claimants from owner/driver of the offending vehicle.

15. Since the appeal filed by the insurance company stands disposed of,

the amount of compensation lying in the form of FDR, which was ordered to be kept only for a period of five years which period has since lapsed, is directed to be released to the claimants.

16. Statutory amount of ₹25,000/- shall be refunded to the Appellant/ Insurance Company.

CM No. /2015 (to be numbered and registered)

1. This hand written application has been filed on behalf of respondent No.3 Jagviri Devi today in the Court praying for releasing in her favour the amount of compensation awarded to her husband/respondent No.2 Mahavir Singh.

2. Mr.S.N.Parashar, Advocate has appeared on behalf of the respondent No.1 Rajni - widow of the deceased.

3. Mr.Ghanshyam Choudhary has appeared on behalf of respondent No.3 Jagviri Devi - mother of the deceased.

4. Mr.Ghanshyam Choudhary, Advocate for respondent No.3 submits that since respondent No.2 Sh.Mahavir Singh - father of the deceased has been expired, the amount of compensation awarded to him may be released in favour of his wife namely Jagviri Devi, who is respondent No.3 before this Court.

5. In the proceedings dated 08.10.2013, it is mentioned that Mr.Mahavir Singh - father of the deceased has expired on 31.05.2011 i.e. during the pendency of the present appeal.

6. Since respondent No.2 Mahavir Singh - father of the deceased has expired, the compensation awarded in favour of respondent No.2 be released in favour of his wife namely Jagviri Devi, who is respondent No.3 before this Court.

7. Application stands disposed of.

8. As prayed, copy of the order be given dasti to learned counsel for the parties.

CM No.14075/2015 (releasing the award amount) Since the appeal has been disposed of and remaining award amount has been ordered to be released to the claimants, the instant application has become infructuous and the same is hereby dismissed as infructuous. CM No.20709/2014 Dismissed as infructuous.

PRATIBHA RANI, J.

NOVEMBER 18, 2015 'st'