Delhi High Court
Iffco Tokio Gen. Ins. Co. Ltd. vs Md. Muslim @ Md. Hussain & Ors. on 14 March, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14th March, 2016
+ MAC APPEAL No.811/2010
IFFCO TOKIO GEN. INS. CO. LTD. .... Appellants
Through: Ms. Shantha Devi Raman, Adv.
Versus
MD. MUSLIM @ MD. HUSSAIN & ORS. .... Respondents
Through: Mr. Amir Gaur, Amicus Curaie, Adv.
for R-3 & 4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first and second respondents (hereinafter referred to as the
claimants) had instituted accident claim case under Sections 166 and 140 of
Motor Vehicles Act, 1988 (MV Act) registered as petition No. 44/2009
(2006) before the motor accident claims tribunal (the tribunal) seeking
compensation on account of death of their son Mohd. Farmood Ansari in a
motor vehicular accident that occurred at about 9.45 a.m. on 21.10.2006
wherein he suffered fatal injuries while travelling in a three wheeler scooter
bearing registration No. DL 1RF 5316 (the offending vehicle) driven by the
third respondent, it having turned turtle after hitting an electric pole on
roadside. The claimants had impleaded the fourth respondent, the registered
owner of the offending vehicle, as a party respondent in addition to the
appellant insurance company (insurer) which had admittedly issued a third
party insurance policy in its respect for the period in question.
2. The tribunal awarded compensation in the sum of ` 5,61,860/- which
excludes the amount of ` 50,000/-, earlier directed to be paid (on the no-
fault liability principle) to the claimants, directing the insurance company to
pay the compensation.
3. The insurance company questions the impugned judgment and award
on several grounds. It argues that there was no proof of negligence in
driving and that the tribunal, having adopted the method of calculation of
compensation under Section 163 A of MV Act should have followed the
principles laid down in the second schedule to MV Act. It is further the
contention of the insurance company that there was breach of terms and
conditions of the insurance policy in that the TSR had been wrongly handed
over by the registered owner/insured (fourth respondent) to the third
respondent for being plied on hire in breach of terms and conditions of the
permit and consequently of the insurance contract.
4. The contention of the insurance company that there was no proof
adduced as to negligence cannot be accepted. The evidence on record
included the copies of the evidence gathered by the police during
investigation of the first information report that had been registered in
respect of the accident in question. The evidence on record clearly shows
that the TSR in which the deceased was travelling had struck against the
electric pole. With no explanation whatsoever having come forth as to why
the TSR should strike against an electric poll, negligence on the part of its
driver is writ large on the record of the case.
5. The tribunal wrongly invoked the provision of Section 163 A of MV
Act in a case where the compensation was being sought under Section 166 of
MV Act. In absence of proof of income, the tribunal correctly adopted the
minimum wages of ` 3,312/- for an unskilled worker payable around the
time of accident (21.10.2006). Having recorded a finding that only the
mother was dependant, deduction on account of personal & living expenses
to the extent of 50% required to be made. Thus, the monthly loss of income
comes to ` (3,312 /2) ` 1,656. Since the deceased was not in a regular
employment wherein he would be entitled to any progressive increase in
income, there is no possibility of any future prospects to be factored in.
[Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6
SCC 121 and Reshma Kumari V. Madan Mohan (2013) 9 SCC 65].
6. Since the age of the mother at the relevant point of time was 37 years,
the tribunal rightly adopted the multiplier of 15. In this view, the total loss of
dependency comes to (1,656 X 12 X 15) ` 2,98,080/-. It is at the same time
noted that the tribunal awarded meager amounts of ` 5,000/- each under the
heads of funeral expenses and loss of estate. No award was made on account
of loss of love & affection. This Court is duty bound to bring in suitable
correction. Following the view taken in Rajesh & Ors. vs. Rajbir & Ors.,
(2013) 9 SCC 54, and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
` 1,00,000/- is awarded on account of loss of love & affection besides `
25,000/- each towards funeral expenses and loss of estate. The claimants had
also proved having incurred ` 13,200/- towards charges for transportation of
the dead body from Delhi to their native place. Adding these components,
the total compensation payable in the case comes to ` (2,98,080 + 1,00,000 +
25,000 + 25,000 + 13,200) ` 4,61,280/- rounded off to ` 4,62,000/-. The
amount of ` 50,000/- paid under Section 140 MV Act will have to be
suitably adjusted.
7. The award is accordingly modified/reduced. It shall carry interest as
levied by the tribunal.
8. The ground on which the insurance company raised the issue of breach
of terms and conditions of the policy is that the registered owner (fourth
respondent) had unauthorisedly handed over the TSR to the third respondent
(the driver) for plying it on hire. It refers to judgment of the Supreme Court
in M.C. Mehta vs. Union of India & Ors. JT 1997 (10) SC 209 to contend
that this amounts to breach of permit conditions.
9. The letting of the TSR on hire may amount to breach of permit
conditions entailing penal action under the MV Act. But this, however, does
not mean that the insurance company can refer to the said breaches as
fundamental breaches of the insurance policy so as to seek to be absolved of
its liability to indemnify. This Court in a series of judgment on the subject
has rejected such contentions of the insurance companies. Reference may be
made to National Insurance Co. Ltd. vs. Ram Rati & Ors. in MAC Appeal
No. 11/2008 decided on 18.01.2008, Mahender Singh vs. Oriental Insurance
Co. Ltd. & Ors. in MAC Appeal No. 430/2010 decided on 10.5.2012,
National Insurance Company Ltd. vs. Suresh Kumar & Ors. in MAC Appeal
No. 424/2009 decided on 1.11.2012 and New India Assurance Co. Ltd. vs.
Prem Rani & Ors. in MAC appeal No. 885/2010 decided on 18.3.2015. In
Mahender Singh (supra), the learned single judge while repelling similar
contentions of the insurance company, in almost identical fact situation,
observed as under:-
"Thus, the user of a transport vehicle for the purpose not
allowed by the permit would be using a goods vehicle as a
passenger vehicle, a passenger vehicle as a goods vehicle, etc.
and not each and every contravention of the condition of permit
issued by the concerned Transport Authority. Thus, simply
because the vehicle was driven by a person other than the
permit holder cannot be said to be a user of the transport
vehicle for the purpose not allowed by the permit under which
the vehicle was used."
10. For the foregoing reasons, the plea of the insurance company about
breach of terms and conditions of the policy is rejected.
11. By order dated 17.12.2010, the appellant had been directed to deposit
the entire awarded compensation with upto date interest with the Registrar
General within the period specified. The Registrar General shall now
calculate the amount payable to the claimants in terms of the modified award
as above and release the same with upto date interest in terms of the
impugned judgment, refunding the excess with statutory deposit, if made, to
the insurance company.
12. This Court records its appreciation for the able assistance of Mr. Amit
Gaur, Amicus Curaie.
R.K. GAUBA
(JUDGE)
MARCH 14, 2016
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