Delhi High Court
Punita Devi & Ors vs Bhupinder Singh & Ors. on 15 January, 2016
$~10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15th January, 2016
+ MACA 1060/2012
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
versus
PUNITA DEVI & ORS. ..... Respondents
Through: Mr. Amarjeet Rai & Ms. Puja
Anand, Advs.
AND
+ MACA 1169/2012
PUNITA DEVI & ORS ..... Appellants
Through: Mr. Amarjeet Rai & Ms. Puja
Anand, Advs.
versus
BHUPINDER SINGH & ORS. ..... Respondents
Through: Ms. Neerja Sachdeva, Adv. for R-
3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Both these appeals arise out of the judgment dated 11 th July, 2012
passed by Motor Accident Claims Tribunal (hereinafter referred to as
"the Tribunal") on petition under Section 166 read with Section 140 of
Motor Vehicles Act (hereinafter referred to as "MV Act"), registered as
suit No. 268/2011, claiming compensation on account of death of
Jitender Kumar, son of Sh. Ram Prashad in a motor vehicular accident
that occurred at about 3 p.m. on 18.2.2009, near Hari Nagar, NH-8, Anaj
Mandi, Gurgaon, Haryana, involving truck trailor bearing registration
No. RJ-02GA-0908. The claim petition had been preferred by Smt.
Punita Devi (widow of the deceased) for her own behalf and on behalf
of her minor son Harsh besides Ram Prashad and Jayshree Devi, parents
of the deceased. In the claim petition, Bhupinder Singh was shown in
the array of parties as the driver of the offending truck which was stated
to be owned by Kailash Sharma and insured with Bajaj Allianz General
Insurance Company Ltd.
2. The claim petition was contested by the insurance company only,
the driver and owner having suffered the proceedings ex-parte inspite of
notice. The insurance company, inter alia, took up the defence that it
was not liable to pay compensation since there was a breach of policy
condition in that the truck in question had been put on road without the
requisite permit taken in terms of the provisions of MV Act. The
defence of the insurance company was rejected and the claim petition
was allowed awarding compensation in the sum of ₹ 14,92,480/- along
with interest @ 9% per annum from the date of filing of the petition till
realisation, the awarded amount having been apportioned and duly
protected by suitable directions.
3. The insurance company (the third respondent before the
Tribunal) has come up in MAC Appeal No. 1060/2012 questioning the
denial of the recovery rights against the owner and driver of the
offending truck contending that the defence about the breach of policy
condition has been wrongly brushed aside. The claimants, on the other
hand, have come up with MAC Appeal No. 1169/2012 seeking
enhancement of the compensation on the ground that loss of dependency
has been wrongly calculated on the basis of multiplier of 17 which
instead should have been taken as 18, since the deceased was 29 years
old on the date of the accident. It has also been submitted that non-
pecuniary damages under the heads of funeral expenses, loss to
consortium, loss of estate and loss of love and affection have been
awarded on the lower side in the sums of ₹10,000/- each and thus need
to be enhanced.
4. Arguments on both sides have been heard and record perused.
5. Having regard to the age of the deceased (29 years), the view
taken by the trial court as to the appropriate multiplier (17) cannot be
faulted in view of the judgment in Sarla Verma & Ors. vs. DTC & Anr.
(2009) 6 SCC 121.
6. Indeed, with regard to the non-pecuniary damages, the same have
not been appropriately dealt with by the learned Tribunal and the award
is on the lower side in view of the case reported as Rajesh & Ors. vs.
Rajbir Singh & Ors. (2013) 9 SCC 54 wherein against a fatal accident
case, the incident having occurred on 05.09.2007, the Hon'ble Supreme
Court awarded non-pecuniary damages under the heads of loss of
consortium, loss of care and guidance and funeral expenses in the sum
of ₹ 1,00,000/-, ₹ 1,00,000/- and ₹ 25,000/- respectively. The said
yardstick can be adopted for the present purposes also. Thus, the award
under the said heads is modified and instead of amounts awarded by the
learned Tribunal, compensation is determined on account of funeral
expenses, loss of consortium, loss to estate and loss of love and
affection in the sum of ₹ 25,000/- ₹ 1,00,000/-, ₹ 1,00,000/- and
₹1,00,000/- respectively. By this reckoning, an amount of ₹ 2,85,000/-
is added to the compensation awarded, raising it to ₹ 17,77 480/-
(Rupees Seventeen Lakhs Seventy Seven thousand and four hundred
eighty). Needless to add that the enhancement awarded shall carry
interest @ 9% per annum from the date of filing of the petition till
realization, the awarded amount to be apportioned in the same manner
as directed by the Tribunal in the impugned judgment.
7. Since the insurance was admitted and only recovery rights were
claimed, it shall be the responsibility of the insurance company to
deposit the enhanced compensation with upto date interest within 30
days of this order.
8. Now, the question of recovery rights of the insurance company
has to be dealt with. The contention of the insurer in this regard was
rejected by the Tribunal through the following reasoning:-
"36. The respondent No. 3 disputed its liability on the
ground that the owner and driver did not produce valid
insurance policy, permit and effective driving licence in
spite of notice U/o 12 Rule 8 CPC being served upon
them. The notices were proved as Ex. R3W1/2 and
R3W1/3 and their postal receipts were proved as
Ex.P3W1/4 and R3W1/5. It was also submitted that the
investigator of the company had inspected the record of
criminal case but the permit was not available in the
record of criminal case, as such since the offending
vehicle was being driven without permit which was a
violation of terms and conditions of the insurance policy
and the Act. Thus, respondent No.3 was not liable to pay
compensation.
37. I have considered the submissions of Ld. Counsel
for respondent no. 3. The onus was on the insurer to
prove that there was wilful breach of the terms of the
policy by the insured. Respondent no. 3 proved the
notice U/o 12 rule 8 CPC sent to the insured to produce
the permit. However, Insurance company did not
summon the record from the concerned Transport
Authority to prove that respondent no. 2 did not have a
valid permit to ply the vehicle."
9. The registered owner of the offending vehicle, Kailash Sharma
(impleaded as respondent No.6 in appeal taken out by the insurance
company) was duly served, albeit by way of publication under Order 5
Rule 20 CPC). Inspite of service he has chosen not to appear and thus,
has suffered the appeal proceedings also as ex-parte.
10. As pointed out by the learned counsel for the insurance company,
the evidence led by it during the inquiry seems to have escaped the
notice of the Tribunal. Ramnik Sanchar, Senior Executive Legal had
appeared as R3W1 on behalf of insurance company to depose on the
strength of his affidavit (Ex.R3W1). The relevant part of his deposition
may be taken note of as under:-
"I SAY THAT THE RSPONDENT No. 3 company has
been impleaded in the above mentioned claim petition as
insurer of vehicle bearing No. RJ-02GA-0908 vide
Commercial Policy no. OG-09-1401-1803-00003147
valid for the period 07.08.2008 to 06-08-2009. The
Attested copy fo said insurance policy along with term
and conditions is Ex. R3W1/1(COLLY).
3. I say that the respondent No. 3 company sent a
Notice under Order 12 Rule 8 of Civil Procedure Code
through our counsel to THE Respondent No.
1/Driver/Mr. Bhupinder Singh and the Respondent No.
2/Mr. Kailash Sharma, owner of vehicle No. RJ-02GA-
0908 for production of above said original insurance
Policy, a valid and effective Driving license of
respondent No. 1 and a Permit of vehicle No. RJ-02GA-
0908 at the time of alleged accident before this Hon'ble
Court but both the respondent no.2/owner and
respondent No.1/driver have failed to produce before this
Hon'ble Court or provide to the Respondent
No.3/Insurance Company the valid and effective Permit
of vehicle No. RJ-02GA-0908 and other documents. The
signed copy of Notice under Order 12 Rule 8 of Civil
Procedure Code and postal receipts are Ex. R3W1/1, Ex.
R3W1/3, Ex. R3W1/4 and Ex. R3W1/5 respectively.
4. I say that the Investigation of our Company got
inspection the criminal record but the copy fo Permit of
vehicle No. RJ-02GA-0908 is not available/found in the
criminal record. Therefore, the said vehicle No. RJ-
02GA-0908 was being driven without permit at the time
of accident. There is violation of Limitation as to Use
clause of terms and conditions of insurance policy which
have mentioned in Para Limitation as to Use on the face
of Insurance Policy.
5. I say that under these circumstances, there was
violation of the provisions of section 66 and 149 (1), (2)
of Motor Vehicles Act, 1988 (Amended upto date) and
this fact was well in the knowledge of Respondent No.
2/owner/insured that the vehicle No. RJ-02GA-0908 was
being driven without permit at the time of alleged
accident in spite of that he had voluntarily, willingly,
illegally and violated the section 66 of M.V. Act, 1988,
and the terms and conditions of Insurance Policy".
11. There was nothing before the Tribunal to refute the stand taken
by the respondent company through its official witness R3W1 to above
effect. The registered owner of the vehicle despite the notice served
remained absent and, thus, consciously avoided the
proceedings during the inquiry. The evidence of the insurance company
in above regard has, thus, gone unrebutted and unchallenged.
12. Since the insurance policy was in respect of a goods carriage
vehicle, the liability of the insurance company to indemnify would be
subject to provisions of MV Act. Since the truck was not driven on the
public road with a valid permit taken out in terms of the law, the
insurance company cannot be denied the recovery rights [United India
Insurance Co. Ltd. vs. Lehru & others (2003) 3 SCC 338 ].
13. Thus, the insurance company (appellant in MAC App. No.
1060/2012 is granted the right to recover the amount of compensation
(paid/payable by it to the claimants), from the driver and owner in terms
of the impugned award granted by the Tribunal, as modified in appeal
by this Court through this judgment. For such purposes, the insurance
company would be entitled to initiate appropriate proceedings before the
Tribunal.
14. By earlier orders, the insurance company had been directed to
deposit the awarded amount in terms of the impugned judgment. Inspite
of repeated directions, no proof about due compliance has been
submitted. If the amount has already been deposited with this Court, or
with the Tribunal, the claimants shall be entitled to get it released in
terms of the Award and the directions as above. In case there has been
default, the claimants shall be entitled to take out appropriate execution
proceedings before the Tribunal for its recovery.
15. Both the appeals stand disposed of with above
directions/observations.
16. The statutory deposit, if made, by the insurance company shall
be refunded after it has satisfied the award.
R.K. GAUBA
(JUDGE)
JANUARY 15, 2016/nk
