Delhi High Court
Shriram General Insurance Co. ... vs Rajinder Kaur & Ors on 23 March, 2016
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd March, 2016
+ MAC.APP.1028/2011
SHRIRAM GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth & Mr. Shoumik
Mazumdar, Advs.
versus
RAJINDER KAUR & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Joginder Singh, 79 year old person, died as a result of injuries
suffered in a motor vehicular accident that occurred at about 11.45 a.m. on
19.7.2010 involving motorcycle bearing No. DL 9SAE 0734 (the
offending vehicle) which was admittedly insured against third party risk
with the appellant company (insurer). A claim petition was filed under
Sections 166 and 140 of Motor Vehicles Act, 1988 (MV Act) before the
motor accident claims tribunal (the tribunal) which registered it as case no.
399/2010. In the said case, besides the insurer, driver and owner of the
offending vehicle were impleaded as respondents, they now being fifth and
sixth respondents before this Court. The claimants (first to fourth
respondents in the appeal) led evidence and on that basis the tribunal
passed judgment dated 01.09.2011, awarding compensation in the sum of
₹ 3,51,122/- which includes ₹ 1,40,000/- under the heads of non-pecuniary
damages besides ₹ 2,11,122/- towards loss of dependency.
2. The grievance of the insurer in appeal concerns the calculation of
loss of dependency and also on the denial of recovery rights, this with
reference to its plea that the driver of the offending vehicle was not holding
a valid driving license.
3. On the first contention, this Court finds merit in the appeal. The
claimants had not shown any clear proof of income. Thus, the income was
notionally assessed at ₹ 5,278/- per month it being the rate of minimum
wages. The tribunal deducted 1/3rd towards personal and living expenses
on the reasoning that the deceased would have been saving 1/3rd of his
income. This would have a reflection on the loss of estate. Primarily it was
the wife (first claimant) who was dependent and, therefore, the deduction
under the head of personal & living expenses should have been made to the
extent of 50%. In this view, the loss of dependency comes to ₹ (5278÷2)
₹ 2639/- per month. Having regard to the age (79 years), the loss of
dependency has to be worked out on the multiplier of 5. Therefore, the
total loss of dependency is computed as ₹ (2639 X 12 X 5), ₹ 1,58,340/-
rounded off to ₹ 1,59,000/-. Adding the amount of ₹ 1,40,000/- awarded
by the tribunal under the non-pecuniary heads of damages, the total
compensation in the case comes to ₹ (1,59,000 + 1,40,000) ₹ 2,99,000/-
rounded off to ₹ 3,00,000/-. The award is reduced accordingly. Needless
to add, it shall carry interest as levied by the tribunal and shall be
apportioned in the manner done in the impugned judgment.
4. On the question of breach of terms and conditions of the policy, all
that the insurer has to show is the pleadings to the effect that the driver was
prosecuted for offence under Section 3 read with Section 181 of the MV
Act on the allegations that he was not holding a valid or effective driving
licence. Prosecution on those allegations is one thing and conviction on
such allegations is another. No evidence confirming the afore-said facts
has been adduced. In these circumstances, the plea for recovery rights to
be granted has to be rejected.
5. By order dated 21.11.2011, the insurer was directed to deposit 75%
of the awarded amount with upto date interest with State Bank of India, Tis
Hazari Courts Branch, whereupon the execution was stayed. By order
dated 07.09.2012, the share of the first claimant was released. The tribunal
is directed to now calculate the amount payable to the claimants in terms
of the modified award as above and release the same from the balance in
the amount deposited. If there is any further amount to be paid, the
appellant shall deposit the same with the tribunal within 30 days.
Conversely, if the amount has been deposited in excess, the same shall be
refunded to the insurer.
6. The appeal stands disposed of in above terms.
7. Statutory deposit, if made, shall be refunded.
R.K. GAUBA
(JUDGE)
MARCH 23, 2016
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