Delhi High Court
Icici Lombard General Insurance ... vs Vishwa Nath & Ors on 4 March, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 4th March, 2016
+ MAC.APP. 771/2010
ICICI LOMBARD GENERAL INSURANCE CO LTD
..... Appellant
Through Ms. Suman Bagga and Mr. Pankaj
Gupta, Advs.
versus
VISHWA NATH & ORS
..... Respondent
Through Mr. Ashok Popli, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent (the claimant), then aged 37 years, serving as a
constable in Delhi Police met with an accident on 13.01.2006 at about 8.45
PM whilst he was on duty at check post of Pocket No.1, Vivek Vihar when
he was hit by motorcycle No.DL4S AY 5173 owned by the second
respondent and driven by the third respondent, the vehicle being admittedly
insured against third party risk with the appellant company (the insurer). He
filed a claim petition under Sections 166 and 140 of Motor Vehicles Act
(MV Act) on 05.07.2006 whereupon it was registered by the Motor Accident
Claims Tribunal as suit No.1408/2008. The claim case was inquired into.
During the course of inquiry, the insurer took the plea that there was a
breach of terms and conditions of the insurance policy as the driver did not
hold a valid licence. The insurer led evidence by examining its area
manager, legal (R2W1) to prove a notice that had been issued and served on
the insured, the owner under Order 12 Rule 8 of Code of Civil Procedure,
1908 (CPC) calling upon him to show the driving licence to which there has
been no response. The Tribunal rejected the contention of the insurance
company and called it upon to pay compensation assessed in the sum of
₹8,92,570/- worked out as under :
1. Medical expenses : 1,946/-
2 Conveyance and special diet : 10,000/-
3. Loss of income : 39,004/-
4. Permanent disability : 5,41,620/-
5 Pain and sufferings : 3,00,000/-
Total : 8,92,570/-"
2. The insurance company, feeling aggrieved, has come up with the
appeal at hand questioning the compensation payable under the head of
permanent disability pointing out there was no loss of employment due to
the disability suffered which has been assessed to the extent of 27% in
relation to both the upper limbs as per disability certificate proved (Ex.PX1).
It also argues that the award under the head of pain & suffering in the sum
of ₹3 (three) lakhs is unduly high. It presses for recovery rights against the
owner on the ground that the reasoning for rejecting its plea of breach of
terms and conditions of the policy as set out by the Tribunal in the impugned
judgment was not proper since, there was no proof of holding a valid and
effective driving licence with the driver.
3. Having heard arguments on both sides, this Court finds substance in
the contention of the insurance company with regard to the assessment of
compensation payable due to permanent disability which essentially is
compensation for loss of income in future. It is admitted on the side of the
claimant that he has continued to be in the service of Delhi Police,
notwithstanding the disability suffered. There has, thus, been no loss of
employment or earnings. It was argued on his behalf, however, that due to
the disability the claimant has suffered on account of loss of possibility of
upward progression of his career. But then, such factors are imponderables
and consequently need to be factored in under non-pecuniary heads of
damages.
4. In ordinary course, the claimant would continue to be in service of
Delhi Police till he attains the age of 60 years. Thus, the loss of future
income must be worked out with reference to the date on which he would
stand superannuated. In these circumstances, the calculation would have to
be made on the multiplier of 9.
5. The gross income as per the document (Ex.PW2/3) was ₹11,145/-.
Thus, the loss of future income is calculated as (11,145 x 12 x 9 x 27 ÷ 100)
₹3,24,988/- rounded off to ₹3,25,000/-. Therefore, instead of the award of
₹5,41,620/- directed to be paid under the head of permanent disability by the
Tribunal, an amount of ₹3,25,000/- will have to be added under the head of
loss of future income due to disability.
6. The Tribunal awarded an amount of ₹3 lakhs under the head of pain
& suffering. By itself, this may be unduly high. But then, it is noted that the
Tribunal did not award any compensation under loss of amenities of life.
Put together, the amount that needs to be awarded under the said two heads
would still turn out to be ₹3 lakhs [Master Mallikarjun v. Divisional
Manager, The National Insurance Company Ltd. (2014) 14 SCC 396]. With
this clarification no further modification needs to be made to the
compensation made therein.
7. The total compensation in the case at hand comes to ₹6,75,950/-
rounded off to ₹6,76,000/-. Needless to add, it shall carry interest as levied
by the Tribunal.
8. There is merit in the contention of the appellant regarding breach of
terms and conditions of the policy. It is noted that the owner (insurer) of the
offending vehicle did not appear before the Tribunal to contest. The same is
the position even in appeal. The Tribunal had adduced evidence by
examining R2W1 who proved the relevant facts with regard to the breach in
that the driver of the offending vehicle was not shown to be in possession of
a valid and effective driving license in spite of notice having been served on
the owner/insured under Order 12 Rule 8 CPC. The Tribunal, however,
declined to hold it as a breach of terms and conditions of the policy for the
reason no notice had been served upon the driver by the insured. The privity
of contract with regard to the insurance policy is between the insured and the
owner. In these circumstances, the reason cited by the Tribunal cannot be
upheld.
9. Thus, while calling upon the insurance company to pay the
compensation to the claimant, it is granted recovery rights against the owner
(the second respondent herein).
10. The insurer had deposited the entire award with up-to-date interest
with the Registrar General in terms of direction in Order dated 19.11.2010.
By order dated 31.01.2012, 50% of the said deposit was allowed to be
released. But then, by order dated 31.07.2012, the earlier order was
modified and only ₹2.5 lakhs was allowed to be released. The Registrar
General shall now calculate the amount payable to the claimant in terms of
the award modified as above and release the same to the claimant refunding
the balance lying in deposit in excess of its liability to the insurance
company with the statutory deposit, if made.
11. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 04, 2016
VLD
