Delhi High Court
National Insurance Co. Ltd vs K K Kamal & Ors. on 5 December, 2017
$~R-55A & 336
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 5th December, 2017
+ MAC APPEAL 582/2008
NATIONAL INSURANCE CO. LTD ..... Appellant
Through: Mr. Pradeep Gaur &
Mr. Amit Gaur, Adv
versus
K K KAMAL & ORS. ..... Respondents
Through:
+ MAC APPEAL 413/2011
K K KAMAL & ORS. ..... Appellant
Through:
versus
NATIONAL INSURANCE CO. LTD ..... Respondents
Through: Mr. Pradeep Gaur &
Mr. Amit Gaur, Adv
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The claimant had suffered injuries in a motor vehicular accident
that took place on 19.01.2006 involving negligent driving by the
driver of offending vehicle i.e. Bus bearing registration no. DL1PA
5917. Accident claim case 233/06 was instituted on 25.05.2006. The
tribunal held an enquiry and, by judgment dated 02.08.2008, accepted
the case for compensation under section 166 of Motor Vehicles Act,
1988 holding Shanker (respondent) responsible for negligent driving
and causing the said accident. The bus was found to be owned by
Vijay Kumar Sharma, another respondent in these appeals. The
tribunal awarded compensation in the total sum of Rs.5,96,000/- and
directed the insurer to pay the sum along with interest @ 9% pa,
calculating it thus:-
S. No. Head Amount
1 Nature of injuries and plain and sufferings 18,584/-
2 Pain and sufferings and loss of amenities of life 50,000/-
3 Loss of earning capacity due to permanent 5,17,000/-
disability
4 Conveyance and special diet 10,000/-
5 Total 5,95,584/-
2. The Insurer came up with appeal being MAC APP. No.582/08
challenging the said award and liability having been fastened upon it,
the prayer being only to seek recovery rights against the driver
(Shankar) and owner (Vijay Kumar Sharma) of the vehicle on the
ground that they were not having any valid and effective driving
license on the said date. During pendency of the said appeal of the
Insurer, the claimant filed cross objections (CM No.11670/09) which
were directed to be registered as an independent appeal vide order
dated 04.05.2011. Thus, MAC. APP. No.413/2011 of the claimant
seeking enhancement of compensation has also come up for
consideration alongside the appeal of the Insurer.
3. On the application of the Insurer, it was granted opportunity to
lead additional evidence. Pursuant to the said liberty, it examined Anil
Bihari Sahai (AW1), a clerk from office of ARTO, Mathura, UP and
Sunil K Nama (AW2) Admin. Officer (Legal) of the Insurer.
4. When these appeals are taken up from the list of "Regulars",
there is no appearance on behalf of claimants or other respondents.
Learned counsel for the Insurer has been heard and with his assistance,
the record perused.
5. The claimant had proved to the satisfaction of the tribunal that
as a result of the injuries suffered, his right lower limb had to be
amputated. This has rendered him permanently disabled as certified
(PW1/5) by the Board of Doctors of Safdarjung Hospital of Govt. of
India. It has opined permanent disability to be of the extent of 80%.
The claimant had contended that his functional disability should have
been taken as 100% rather than 80%. This plea cannot be accepted as
earlier in similarly placed cases this Court has consistently evaluated
functional disability to the extent of 80% as has been rightly
concluded by the Tribunal. (MAC APP 225/2012 "Raj Kumar vs.
Reliance General Insurance Co. Ltd. & Ors., decided on 10.11.2017).
6. However, there is deficiency in awarding just compensation by
award only of Rs.18,584/- towards reimbursement of medical
expenditure wrongly shown in the tabulation as compensation for
"nature of injuries and pain and sufferings". The tribunal awarded
Rs.40,000/- towards pain and suffering and Rs. 10,000/- towards loss
of amenities of life. These awards are grossly inadequate. Following
the ruling in the similarly placed case MAC APP 225/2012 "Raj
Kumar vs. Reliance General Insurance Co. Ltd. & Ors., the amount of
Rs. 40,000/- towards pain and suffering is increased to Rs. 1,50,000/-
and the amount of Rs. 10,000/- for loss of amenities of life is
increased to Rs.1,00,000/-. In addition, the amount of Rs. 1,50,000/- is
added towards disfigurement.
7. The grievance of the claimant that there is no provision made
for artificial limb is found to be correct. The amount of Rs.3,00,000/-
as claimed by him towards this end is found to be appropriate and thus
added in compensation.
8. As a result of the above, compensation would have to be
enhanced by a net amount of Rs.7,00,000/- (Rs.1,50,000/- +1,50,000/-
+ 1,00,000/- + 3,00,000/-). Compensation is, thus, increased to
(5,95,584/- + Rs.7,00,000/-) Rs.12,95,584/- round off to
Rs.12,96,000/- (Rupees Twelve Lacs and Ninety Six Thousand Only).
9. The award is accordingly modified which shall carry interest as
levied by the tribunal.
10. The Insurer by its additional evidence led during pendency of
the appeal has proved that the copy of driving license, on which
reliance was placed, is not genuine and no such license had been
issued in the name of the offending vehicle as affirmed on oath by
affidavit of the concerned official of the transport authority to which
there is no contest. The insurer has also proved that it had issued a
notice under Order XII Rule 8 of CPC, 1908 (Ex AW 2/3) calling
upon the driver and owner to produce the driving license. There was
no response to the said notice. The evidence led during pendency of
the appeal of the insurer has remained un-impeached and
unchallenged as the driver and owner of the offending vehicle would
not appear on the material dates. In these facts and circumstances, the
insurer has proved that driver was not having a valid or effective
driving license. This constitutes breach of terms and conditions of
insurance policy and consequently, insurer must succeed.
11. Thus recovery rights are granted to the insurer against the
second and third respondent in MAC. APP.582/2008. For enforcement
of such recovery rights, the insurer is at liberty to take out appropriate
proceedings before the tribunal. However, the insurance company
shall continue to be liable to satisfy the enhanced award in favour of
the claimant by requisite deposit, including corresponding interest,
with the tribunal within thirty days.
12. By order dated 26.11.2008 in MAC APP. 582/2008, the insurer
had been directed to deposit the entire awarded amount along with
interest in the name of Registrar General of this Court. Pursuant
thereto, 75% of the said deposited amount was permitted to be
released and balance 25% was released by subsequent order dated
08.11.2010.
13. In facts and circumstances, it is directed that the entire enhanced
portion of the award along with accrued interest be released to the
claimant in form of fixed deposit interest bearing receipt in the name
of a nationalized bank in his favour for a period of seven years with
right to draw periodic interest.
14. The statutory amount deposited by the insurer shall be refunded.
15. Both appeals stand disposed of in above terms.
R.K.GAUBA, J.
DECEMBER 05, 2017/sm
