Delhi High Court
Bajaj Allianz General Insurance ... vs Naresh Kumar Gupta And Ors on 23 May, 2016
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.05.2016
+ MAC.APP. 113/2014
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
NARESH KUMAR GUPTA AND ORS ..... Respondents
Through: Mr. Ashish Mohan and Ms. Manpreet
Kaur, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. By judgment dated 10.10.2013, the Motor Accident Claims Tribunal
(tribunal) decided accident claim case (suit no.622/10) which had been
instituted by the first respondent (claimant) on 19.01.2011 and upheld his
contention that he had suffered injuries in a motor vehicular accident that
took place on 20.02.2009 due to negligent driving of a motor vehicle
described as a Dumper bearing registration no. UP-35H-1819 (offending
vehicle). The said finding has since attained finality as it was not questioned
further.
2. By the said judgment, the tribunal awarded compensation in the sum
of Rs.19,40,000/- with interest in favour of the claimant directing the
insurance company (insurer) to pay, it having concededly issued a third
party risk insurance policy in respect of the offending vehicle for the period
in question. The compensation was calculated thus :
Compensation for medical expenses `13,65,000/-
Compensation for conveyance `25,000/-
Compensation for special diet `25,000/-
Compensation for attendant charges `25,000/-
Compensation for permanent `2,00,000/-
disability and loss of Income
Compensation for pain, sufferings `3,00,000/-
and loss of amenities of life,
disfiguration, etc.
TOTAL `19,40,000/-
3. It is noted that the insurer while contesting the case had also raised the
issue of breach of the terms and conditions of the policy, particularly
pointing out that no valid permit in respect of the offending vehicle had been
produced inspite of notice served under Order 12 Rule 8 of the Code of
Civil Procedure, 1908 (CPC). The tribunal rejected this contention of the
insurer observing, inter alia, that no proof of service of the said notices had
been furnished nor any witness from the transport authority examined and
further that the plea was against the documents filed on record with the
written statement of the driver and owner of the offending vehicle (second
and third respondents in appeal) which included copy of a permit, respecting
which there had been no verification carried out by the insurer.
4. By the appeal at hand, the insurer questions the award of
compensation on the ground that permanent physical impairment to the
extent of 25% as assumed by the tribunal was wrong in as much as he was
over 72 years in age and Dr. Ranjan Kumar Wadhwa (PW-9) in the course
of his testimony had conceded that the "claimant can perform his day-to-
day activities in a normal manner". The insurer further questions the award
of non-pecuniary damages in the sum of Rs.3 Lakhs towards pain, suffering,
loss of amenities of life and disfiguration, etc. stating that it is too high.
5. Having heard the counsel and having gone through the tribunal's
record, the exception taken to the compensation awarded by the tribunal is
found to be frivolous. The claimant had proved by cogent evidence that he
had suffered disability on account of grievous hurt in the spinal region. The
medical opinion indicated his disability to be permanent, though non
progressive, but 25% in relation to the spine region. Looking at the age at
which the said disability was suffered, the assessment made on this account
by the tribunal cannot be faulted. For the same reasons, the award under the
non-pecuniary heads of damages is also found to be appropriate and, thus,
calling for no interference.
6. The plea of the insurance company about breach of the terms and
conditions of the insurance policy on account of the permit was considered
and rejected by the tribunal thus :
"..19. The learned counsel for the R-3/Insurance Company has
argued that Insurance Company is not liable to pay the
compensation for the reason that there is breach of the terms of
the insurance policy as the offending vehicle i.e. (Dumper)
bearing registration no.UP-35-H-1819 as being driven on the
date of accident without any valid permit and has relied upon
the statement of R3W-1, Ms. Seema Sehrawat, Sr. Executive
(Legal), M/s.Bajaj Allianz General Insurance Company Ltd.
who has proved the insurance policy of the offending vehicle as
Ex. R3W1/1 and has deposed that notice u/o. 12 Rule 8 CPC,
Ex. R3W1/2 was issued to the insured, Shri. Arun Awasthi for
production of permit of the vehicle bearing registration no.UP-
35-H-1819 (Dumper) but neither any reply nor any permit has
been received till date and hence the insurance company is not
liable to pay compensation. However, no document regarding
delivery / receipt of the said notice under Order 12 Rule 8 CPC
has been filed on record nor any acknowledgement of the same
has been filed by R-3/Insurance Company to prove that the said
notices had been duly received by the insured/ owner of the
offending vehicle. I also note that copies of the insurance
policy, permit, fitness and registration certificate of the dumper
truck No.UP-35H-1819 have been filed alongwith the written
statement of respondents no.1 and 2 but the respondent
no.3/insurance company has not cared to get the same verified
from the concerned transport authority. Neither any witness
from the concerned transport authority has been got examined
to prove any breach of the terms of the insurance policy. In
these circumstances, the respondent no.3/Insurance Company
has failed to establish that the owner / insured is guilty of any
deliberate of willful breach of terms of the insurance policy or
that the offending vehicle was being piled without any valid and
cannot avoid its liability to indemnify the respondent
no.2/owner of the offending vehicle.."
7. Clearly, the tribunal has misread the evidence and not appreciated the
contention of the insurer properly. The insurer had taken a specific defence
namely that the vehicle was not holding a valid permit. The insurer had
proved the despatch of notices under Order 12 Rule 8 CPC by post. There
was no contest to the evidence to this effect. In these facts and
circumstances, the delivery in due course of postal transit should have been
inferred. The driver and owner of the offending vehicle were well aware
that in order to avail the benefit of the indemnity clause under the insurance
policy, in the face of defences taken, they were required to show not only
that the driver was holding a valid or effective driving licence but also that
the vehicle was brought on road in strict compliance with the requirements
of the Motor Vehicles Act and Rules framed thereunder which would
include the necessity of a permit. The tribunal failed to note that the
documents filed with the written statement though included copy of a permit
but the said document was valid from 06.05.2009. The accident having
occurred on 20.02.2009, the said permit could not have been referred so as
to absolve the owner of his responsibility.
8. Thus, the appeal of the insurance company against rejection of its plea
as to the breach of the terms and conditions of the insurance policy must be
allowed. In the result, the appeal is partly allowed. The insurance company
is granted recovery rights against the driver and owner of the offending
vehicle.
9. By order dated 04.02.2014, the insurance company had been directed
to deposit the entire awarded amount with upto date interest within the
period specified and, out of the said deposit, 50% was allowed to be
released, the balance kept in fixed deposit receipt with the UCO Bank, Delhi
High Court Branch, New Delhi. The balance shall also be released to the
claimant in terms of the impugned judgment. For enforcement of recovery
rights, the insurer may take out appropriate proceedings before the tribunal.
10. Statutory deposit, if made, shall be refunded.
11. The appeal is disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 23, 2016
yg
