Iffco Tokio General Insurance Co. ... vs Dharmender & Ors.
2017 Latest Caselaw 4613 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Decided on: 30th August, 2017
+     MAC APPEAL 667/2016 and CM APPL.30971/2016,
      CM APPL.22931/2017

      IFFCO TOKIO GENERAL INSURANCE CO. LTD.
                                             ..... Appellant
                    Through: Ms. Suman Bagga, Advocate

                         versus

      DHARMENDER & ORS.                             ..... Respondents
                  Through:            Mr. Navneet Goyal, Advocate
                                      for R-1.
                                      Mr. Saurabh Kansal, Advocate
                                      for R-2 & R-3.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                    JUDGMENT (ORAL)

1. On 28.07.2009, the first respondent was riding on the pillion of a motorcycle when it was hit by a three wheeler scooter bearing registration No.DL-1RF-2150 (TSR) and suffered injuries. The TSR was driven at the relevant point of time by the second respondent, it being registered in the name of the third respondent Bhim Sain (registered owner of the vehicle), and admittedly insured against third party risk with the appellant insurance company (insurer). The third respondent died on 27.10.2011 but the factum of his death was not brought on record before the tribunal during inquiry. On application

(CM No.45008/2016) under Order 22 Rule 4 of the Code of Civil Procedure, 1908 (CPC), his legal representatives have been substituted and are now represented by a counsel.

2. The tribunal after inquiry, by the judgment dated 10.03.2016, awarded compensation in the total sum of Rs.4,25,481/- and directed the insurer to pay with interest @ nine per cent (9%) per annum. By subsequent order dated 20.05.2016, however, the error in calculation of compensation was rectified and the award eventually was passed in the sum of Rs.3,41,277/-, the liability being still on the insurance company.

3. By the appeal at hand, the insurer raises two issues; first, respecting the addition of Rs.1,50,000/- under the non-pecuniary head of damages of loss of enjoyment of life including disfigurement and, second, respecting its plea of recovery rights on the ground the driver did not hold a valid or effective driving licence.

4. The driver (second respondent in the appeal) in spite of notice served has chosen not to appear and has been set ex parte.

5. Having heard the learned counsel for the insurer, the legal representatives of the deceased registered owner and the claimant, and upon perusal of the tribunal's record, this court finds no substance in the appeal in so far as it challenges the award of compensation. The non-pecuniary heads of damages mentioned above, to which exception is taken, were granted by the tribunal within its judicial discretion having regard to the multiple fractures suffered by the claimant, the evidence also showing prolonged treatment in the course of which the

claimant underwent surgical procedure including by two steel rods being implanted in his right lower limb. The appeal in so far as it challenges the award of compensation to the claimant is dismissed.

6. It is noted that though the insurance company had raised the plea of breach of terms and conditions of the insurance policy, specifically on the question of driving licence not being valid or effective for the offending vehicle and also led evidence, the impugned judgment is conspicuously silent on the said issue, there being no adjudication on such plea. In these circumstances, the matter with regard to the plea of insurance company for recovery rights is remitted to the tribunal for appropriate adjudication. The insurer, the driver and the registered owner (represented by the legal representatives) are directed to appear before the tribunal for further inquiry into said issue. If the contesting parties seek any opportunity to lead evidence in rebuttal, such opportunity shall be afforded.

7. The tribunal shall take up the matter for aforesaid purposes on 26th September, 2017.

8. By order dated 07.09.2016, the insurance company was directed to deposit the entire awarded amount with the UCO Bank, Delhi High Court, New Delhi upon which the same was ordered to be kept in interest bearing fixed deposit receipt. The amount so deposited shall presently be refunded to the appellant insurance company with corresponding interest.

9. The statutory deposit shall also be refunded.

10. The appeal along with accompanying applications is disposed of in above terms.

11. Dasti.

R.K.GAUBA, J.

AUGUST 30, 2017 vk