Delhi High Court
New India Assurance Co. Ltd. vs Sumita & Ors. on 2 June, 2016
$~R-144 & R-145
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02.06.2016
+ MAC.APP. 142/2008 & CM No.3302/2008
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through Mr. D K Sharma, Adv.
versus
SUMITA & ORS. ..... Respondents
Through Mr. O P Mannie, Adv.
+ MAC.APP. 18/2009
SUMITA ..... Appellant
Through Mr. O P Mannie, Adv.
versus
RAVINDER SINGH & ORS. ..... Respondents
Through Mr. D K Sharma, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Sumit, 19 year old, a bachelor, was travelling on the pillion of two
wheeler motorcycle bearing registration No.DL7S W 3797 of Richpal Singh
(R3W1) which was driven by Ravinder Singh (the driver) with one more
pillion rider on 04.06.2005. The motorcycle struck against the side
pavement at main road Triveni Apartment, Vivek Vihar, New Delhi on
account of negligent driving by Ravinder Singh (driver) resulting in all the
three persons riding it falling down. All these persons travelling on the
motorcycle were without helmets. Sumit suffered head injuries and came to
be hospitalized for treatment, in spite of which he died in the consequence
on 09.06.2005. His mother Sumita (appellant in MAC.APP.No.18/2009)
instituted an accident claim case (petition No.259/2005) on 04.07.2005
under Sections 166 & 140 of Motor Vehicles Act, 1988 (MV Act)
impleading Ravinder Singh (driver), Richpal Singh (owner) and New India
Assurance Co. Ltd. (insurer) of the said motorcycle as respondents with the
averments that the accident had occurred due to negligent driving of the
motorcycle. The motor accident claims tribunal (tribunal) held inquiry and,
on that basis, by judgment dated 28.11.2007, returned a finding accepting
the case of the claimant mother that Sumit had died due to negligent driving
of the motorcycle. This finding has attained finality as it was not further
challenged.
2. The tribunal awarded compensation in the sum of `4,62,400/- and
directed the insurer (appellant in MAC.APP.No.142/2008) to pay, it having
admittedly issued a third party insurance policy in respect of the motorcycle.
The said amount was inclusive of `4,22,400/- towards loss of dependency,
besides `10,000/- towards medical expenses and `30,000/- as composite
sum on account of loss of estate, funeral expenses and transportation
charges etc.
3. The insurer by its appeal (MAC.APP.No.142/2008) submitted that the
claimant mother appearing in the evidence (as PW1) had admitted that
Sumit was a son born to her from her first marriage. Her husband having
died, Sumit had initially lived with his maternal grandmother (nani) for two
to three years, she having remarried in 1998 and having given birth to
another son from the said second marriage. The contention of the insurance
company is that in these circumstances, the claim of loss of dependency was
questionable. The insurer further refers to the evidence of Uchit Sahni
(PW2) and Richpal Singh (R3W1), which collectively reveal that the
motorcycle was carrying three persons unauthorisedly, it having been
admittedly borrowed from its owner (Richpal Singh) by his son (Ravinder
Singh) with his consent and further that all the persons riding it were not
wearing any helmet. The contention raised by the insurer is that these facts
and circumstances reveal negligence on the part of the driver and since the
owner had not only permitted his son to carry two pillion riders but also all
occupants who were not wearing helmets, there was a breach of terms and
conditions of the policy as the vehicle had been put to use on public road
against the provisions of MV Act. On this reasoning, the insurer seeks
recovery rights against the owner of the insured vehicle. The insurer further
submits that since the deceased was a bachelor, personal & living expenses
should have been deducted to the extent of one-half (50%).
4. Per contra, the claimant by her appeal (MAC.APP.No.18/2009)
submits that the evidence clearly shows that after her remarriage, the son
had come to live with her and since he had been gainfully employed, he was
contributing to the household expenditure. She also argues through her
counsel that the dependency loss has not been properly calculated as the
award under the non-pecuniary heads of damages and the rate of interest
(7.5% per annum) are on the lower side.
5. The argument of the insurance company about there being no loss of
dependency must be rejected. The claimant appearing as PW1 clearly
deposed that though, after her remarriage in 1998, the deceased had initially
shifted to the house of his maternal grandmother, he had come back to the
house, living with her and the second husband and that he would also
contribute to the family expenditure.
6. Having heard the learned counsel on both sides and having gone
through the tribunal's record, this Court agree with the submission of the
insurer with regard to the deduction on account of personal & living
expenses. Since the deceased was a bachelor, this factor had to be brought
in to the extent of 50%. The loss of dependency is, thus, re-calculated as
(3,300 ÷ 2 x 12 x 16) `3,16,800/-.
7. 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 `1 lakh on account of loss of love & affection
and `25,000/- each towards loss of estate and funeral expense are added
besides `10,000/- awarded by the tribunal towards medical expenses. Thus,
the total compensation payable in the case is computed as (3,16,800 +
1,50,000 + 10,000) `4,76,800/-.
8. Following the consistent view taken by this Court [see judgment
dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v.
Sangeeta Devi & Ors.], the rate of interest is increased to 9% per annum
from the date of filing of the petition till realization.
9. The contention of the insurer about breach of terms and conditions of
the insurance policy leading to recovery rights being granted against the
insured, however, cannot be accepted. It may be that the insured (R3W1)
had given the motorcycle for use to his son but there is nothing on record
from which it could be inferred that he was aware that his son would be
carrying more than one person along on the pillion and further that all of
them would not be taking proper care in wearing helmets as was required
under the law. The contention of the insurer is thus rejected.
10. By order dated 04.03.2008, in MAC.APP.No.142/2008, the insurer
was directed to deposit the entire awarded amount with Registrar General
within the period specified and out of such deposit 75% was allowed to be
released. The Registrar General shall now calculate the amount payable
under modified award and release the same to the claimant from the
balance, refunding the excess, if any, to the insurer with statutory deposit, if
made. Conversely, if the amount deposited is deficient, the insurer will be
obliged to pay the balance by requisite deposit with the tribunal within 30
days making it available to be released.
11. Both appeals are disposed of in above terms.
(R.K. GAUBA)
JUDGE
JUNE 02, 2016
VLD
