Delhi High Court
National Insurnace Co. Ltd. vs Shri Jai & Ors. on 7 April, 2016
$~R-48, 49 & 50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 7th April, 2016
+ MAC.APP. 444/2007
NATIONAL INSURNACE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
RINA ..... Respondent
Through: Mr. O.P. Mannie & Mr. Manish
Mannie, Advs.
+ MAC.APP. 520/2007
RINA & ORS. ..... Appellants
Through: Mr. O.P. Mannie & Mr. Manish
Mannie, Advs.
versus
SURAJ PRAKASH & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Adv. for Insurance
company.
+ MAC.APP. 447/2007
NATIONAL INSURNACE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
SHRI JAI & ORS. ..... Respondents
Through: None.
MAC APP. No.444/2007 & conn. Page 1 of 5
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 07.05.2005 at about 5.45 a.m. Ratnakar along with Jai were
travelling in three wheeler scooter bearing No. DL-1R-J-1037 (TSR) from
Badarpur to Old Delhi Railway Station. The TSR was statedly driven by
Suraj Prakash (first respondent in MAC Appeal No. 520/2007, it being
registered in the name of Kartar Singh (second respondent in MAC Appeal
No. 520/2007 and admittedly insured against third party insurance risk with
National Insurance Company Ltd. (appellant in MAC Appeal Nos. 444/2007
and 447/2007). The TSR met with an accident in the area of Red Fort near
Saleem Ghat on ring road resulting in both the passengers suffering injuries
as a consequence to which Ratnakar died. Two accident claim cases (Suit
Nos. 293 and 30/2006) were brought before the motor accident claims
tribunal (the tribunal), first by the dependent family members of Ratnakar
and, the other, by injured Jai seeking compensation. Both the cases were
clubbed together and inquired into. The tribunal eventually passed the order
dated 16.05.2007 granting compensation in each case upholding the case
that the accident had occurred due to negligent driving of the TSR.
2. In the case of death, the tribunal awarded compensation calculated
thus :
Loss of dependency ₹ 5, 15,000/-
Loss of love and affection ₹ 25,000/-
Funeral Expenses ₹ 5,000/-
Loss to estate ₹ 5,000/-
Total compensation ₹ 5, 50,000/-
3. In the case of injuries, compensation was awarded and calculated
thus:-
Medical expenses ₹ 1,000/-
Pain and suffering ₹ 50,000/-
Loss of income ₹ 10,000/-
Marriage prospect ₹ 10,000/-
Conveyance and special diet ₹ 5,000/-
Total compensation ₹ 76,000/-
4. In both the cases, the insurer was directed to pay the compensation
with interest @ 6% per annum from the date of filing of the respective
petition till realization.
5. It appears the insurer had taken the plea that the driver of the
offending vehicle was not holding a valid and effective driving license. It
was pointed out that the driving license held for light motor vehicle (non-
transport) which was not good for purposes of commercial passenger
carrying vehicle in the nature of TSR. The tribunal failed to consider the
said plea in the judgment which is impugned in all the three appeals before
this court.
6. By way of its appeals (MAC Appeal Nos. 444 & 447/2007), the
insurer presses for recovery rights with reference to the contention about the
driving license. By their appeal (MAC Appeal No.; 520/2007) the
dependent family members of Ratnakar (deceased) seek enhancement.
7. Arguments have been heard. Record has been perused.
8. The learned counsel for the claimants in the death case has fairly
conceded that the income of the deceased at Rs. 4,000/- has correctly been
adopted as the benchmark. He, however, submitted that the deduction on
account of personal & living expenses should have been to the extent of 1/4
and the multiplier of 17 should have been adopted. His submissions on
both counts are correct inasmuch as the dependent family members are four
in number and the age of the deceased at the relevant point of time was 27.
Thus, the loss of dependency is calculated as (4,000 x 3 ÷ 4 x 12 x 17) Rs.
6,12,000/-.
9. There is also substance in the grievance about the inadequacy of the
non-pecuniary heads of damages and the rate of interest.
10. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
compensation in the sum of Rs. 1 lakh each on account of loss of love &
affection and loss of consortium and Rs. 25,000/- each towards loss of estate
and funeral expense are added. Thus, the total compensation in the case of
death of Ratnakar comes to (6,12,000 + 2,50,000) Rs. 8,62,000/-.
11. Following the consistent view taken by this Court, it is directed that
the rate of interest shall be 9% per annum from the date of filing of the
petition.
12. The award is modified as above.
13. It is directed that the entire enhanced portion of the award including
on account of increased rate of interest shall be payable to the widow (first
appellant in MAC Appeal No. 520/2007).
14. As regards the plea of breach of terms and conditions of the policy,
the fact remains that the driver was holding a valid and effective driving
license. The mere fact that it was not meant for a commercial vehicle cannot
be treated as fundamental breach so as to exonerate the insurance company
of its liability to indemnify. (National Insurance Company V. Swaran Singh
(2004) 3 SCC 297)
15. By order dated 23.03.2009 in MAC Appeal No. 444/2007, arising out
of the claim due to death of Ratnakar, the insurer was directed to deposit the
entire awarded amount with the tribunal within the period specified and
upon such deposit it was directed to be released to the claimants in that case
excluding the portion meant to be kept in fixed deposit. Similarly, in MAC
Appeal No. 447/2007, by order dated 23.03.2009, relating to the injury case,
the insurer had been directed to deposit the awarded compensation with
proportionate interest with the tribunal which was directed to release
₹20,000/- with remainder to be kept in fixed deposit for a period of three
years from which interest was permitted to be released. The tribunal shall
now release the balance to the respective claimants.
16. The insurer is directed to deposit the amount payable on account of
modification with the tribunal within 30 days of today.
17. The appeals are disposed of in above terms.
18. Statutory deposits made by the insurer shall be refunded.
R.K. GAUBA
(JUDGE)
APRIL 07, 2016
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