Delhi High Court
United India Insurance Company ... vs Vindrawati & Ors. on 4 December, 2017
$~R-634
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th December, 2017
+ MAC APPEAL No.1132/212 and CM No.18211/2012
UNITED INDIA INSURANCE COMPANY LIMITED
... Appellant
Through: Mr. Priyadarsi Acharya, Advocate
versus
VINDRAWATI & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By judgment dated 18.09.2012, on the file of the accident claim
case (Case No.31/09), instituted on 05.07.2007 by the first to sixth
respondents (collectively, the claimants), the tribunal held inquiry and
upheld the contention that Ghanshyam, aged 34 years, had suffered
injuries in a motor vehicular accident that had occurred on
02.02.2003, due to negligent driving of motor vehicle described as
truck, bearing registration No.DDL-3174 and died in the consequence
on 15.12.2005. It awarded compensation in the total sum of
Rs.8,73,992/- and fastened the liability on the appellant (insurer) to
pay, it having concededly issued an insurance policy covering third
party risk in respect of such vehicle for the period in question. The
said amount of compensation includes Rs.1,23,000/- towards loss of
earning capacity, Rs,50,000/- towards special diet, Rs.50,000/-
towards loss of enjoyment of life, Rs.5,20,992/- towards loss of
dependency, besides Rs.1,00,000/- towards loss of love and affection
and Rs.10,000/- each for funeral charges, loss of consortium and loss
to estate. The insurer was called upon to pay with interest @ 7.5%
per annum.
2. The insurer had taken the defence that there was no liability as
there was breach of terms and conditions of the insurance policy,
there being no permit taken out in respect of the vehicle in question.
This plea was rejected.
3. The appeal is pressed by the insurer to take exception to the
inclusion of the award of loss of earning capacity and Rs.50,000/-
towards loss of enjoyment of life, the argument being that the former
was uncalled for as the loss of dependency had been worked out
separately and that the latter amount was under the non pecuniary
heads of damages which being personal in nature and consequently
not survive. The insurer also presses its plea of breach of terms and
conditions of the insurance policy.
4. It is noted that the evidence proved before the tribunal that on
the date of accident the deceased was 34 years old. Having suffered
injuries on 02.02.2003, he died on 15.12.2005 i.e. after 34 months.
The claimants had not led any evidence to prove the medical
expenditure incurred during the period of 34 months for which the
victim survived. It was, however, proved that he was rendered in a
vegetative stage and, thus, virtually unable to earn. There was
corresponding loss of future income during the said period which
required to be compensated. The loss of income during the period of
such survival, therefore, cannot be grudged. However, the second
contention mentioned above, is found to be correct. The loss of
enjoyment of life was such head of damages as was personal and,
therefore, will have no place in the compensation awarded to the legal
heirs dependent upon the family members.
5. It is made clear that the above would not adversely affect the
calculation of loss of dependency as has been computed with the
multiplier of 16, which would continue to apply notwithstanding the
death after 34 months of the injury.
6. The non pecuniary heads of damages, however, are not in sync
with the dispensation of the Constitution Bench of the Supreme Court
rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance
Company Ltd. Vs. Pranay Sethi and Ors. The non-pecuniary
damages as noted above, therefore cannot be upheld and in lieu
thereof, Rs.40,000/- towards loss of consortium and Rs.15,000/- each
towards loss to estate and funeral expenses are added. Thus, there
would be a net reduction in the award by (50,000/- + 60,000/-)
Rs.1,10,000/-.
7. The award of compensation is, thus, reduced to (8,73,992/- -
1,10,000/-) Rs.7,63,992/- rounded off to Rs.7,64,000/- (Rupees Seven
Lacs and Sixty Four Thousand Only).
8. Following the consistent view taken by this Court, the rate of
interest is increased to nine per cent (9%) per annum from the date of
filing of the petition till realization. [see judgment dated 22.02.2016
in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi
& Ors.].
9. The award is modified accordingly.
10. There is merit in the contention of the insurance company about
the breach of terms and conditions of insurance policy. It had
examined Shyam Nandan (R3W1) to prove, inter alia, the issuance of
notice under Order XII Rule 8 of the Code of Civil Procedure, 1908
to the driver and owner of the offending vehicle, they being seventh
and eighth respondents respectively. The evidence of the said
witness remained unimpeached and unchallenged. The said
respondents have failed to appear to resist the appeal. Till date, no
effort has been made on their behalf to prove that there was a valid
permit taken out in respect of the offending vehicle. The failure of the
police to prosecute the owner of the offending vehicle for plying a
vehicle without a valid permit cannot come in the way of the
insurance company to prove otherwise.
11. In the given facts and circumstances, it was the bounden duty
of the registered owner or the driver to prove by positive evidence,
the existence of such valid permit. Since no effect has been made in
that direction, it has to be inferred that there was no valid permit in
existence. Thus, the plea of the insurance company is accepted and it
is granted recovery rights against the seventh and eighth respondents
for enforcement. It shall have the liberty to approach the tribunal by
appropriate execution application.
12. By order dated 19.10.2012, the insurer was directed to deposit
fifty per cent of the awarded amount along with interest with the
tribunal, which was ordered to be released to the claimants.
13. The insurer is directed to deposit the remainder of its liability
along with upto date with the tribunal within thirty days, making it
available to be released to the claimants.
14. The statutory amount shall be released to the insurer, after proof
of award having been satisfied is shown.
15. The appeal along with accompanying application stand disposed
of in above terms.
R.K.GAUBA, J.
DECEMBER 04, 2017
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