Delhi High Court
Icici Lombard General Insurance ... vs Raj Singh & Ors. on 7 December, 2017
$~R-665 & 666
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 7th December, 2017
+ MAC.APP. 1207/2012
ICICI LOMBARD GENERAL INSURANCE CO LTD.
..... Appellant
Through: Ms. Suman Bagga with
Ms. Anjali Chawla, Advocate.
versus
RAJ SINGH & ORS. ..... Respondents
Through: Mr. S.N. Parashar with
Ms. Pankaj Kumari, Advocate
for R-1.
+ MAC.APP. 1223/2012
RAJ SINGH ..... Appellant
Through: Mr. S.N. Parashar with
Ms. Pankaj Kumari, Advocate
for R-1.
versus
BHAGAT SINGH & ORS ..... Respondents
Through: Ms. Suman Bagga with
Ms. Anjali Chawla, Advocate
for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The accident claim case (Suit No. 260/11) was filed by Raj
Singh (the claimant) on 14.11.2008, seeking compensation for injuries
suffered by him in a motor vehicular accident that occurred on
10.09.2008, it involving collision between two vehicles, one a
motorcycle bearing registration No. DL-3S-AH-4319 (the motorcycle)
and, the other, a Truck bearing registration No. MP-06-E-5582 (the
Truck). While the claimant was riding the motorcycle, the Truck was
proved at the inquiry before the Tribunal to have been driven in a
negligent manner by Bhagat Singh (driver). Since the Truck was
registered in the name of and owned by Anita Chaudhary (owner),
both the said driver and owner were held, jointly and severally, liable
to pay compensation.
2. By judgment dated 28.06.2012, the Accident Claims Tribunal
awarded compensation in the total sum of Rs.12,57,950/- fastening the
liability on ICICI Lombard General Insurance Co. Ltd. (insurer), it
admittedly having issued an insurance policy covering third party risk
in respect of the Truck for the period in question.
3. The amount of compensation awarded by the Tribunal was
calculated, thus:-
Medicines and Medical treatment Rs.4,81,150/-
Pain and suffering loss of amenities of life Rs.70,000/-
Conveyance ad Special Diet Rs.25,000/-
Loss of Income and loss of Future Prospects Rs.6,31,800/-
Loss of Expectation of Life Rs.50,000/-
Total: Rs.12,57,950/-
4. The insurer while contesting the claim case before the Tribunal
had taken the defence that there was neither a valid or effective
driving licence held by the driver of the truck nor any permit obtained
by the owner of the truck. The plea of the insurance company,
however, was rejected and it was called upon to pay the compensation.
5. The insurer came with the appeal (MAC. Appeal No.
1207/2012) and presses it only to seek recovery rights against the
driver and the owner of the truck. The claimant, on the other hand,
also came with appeal (MAC. Appeal No.1223/2012) submitting that
the award granted by the Tribunal is deficient. In the said appeal, it
was brought out that post decision of the claim case by the Tribunal,
the treatment of the claimant had to continue, in that he had developed
certain ulcers in the injured lower limb and, during the surgical
procedure that was advised, his left leg below knee had to be
amputated. On the request made by him, the Court granted liberty for
additional evidence to be adduced and pursuant to such opportunity
given, he examined Mohd. Basim, Medical Record Technician of
Saket City Hospital as additional witness on 01.08.2014, to prove the
medical records of further treatment.
6. The driver and the owner of the truck, who were party
respondents in these appeals, in spite of notice, have failed to come up
at the time of final hearing. The learned counsel for the insurer and the
claimant have been heard and, with their assistance, the record has
been perused.
7. The injuries suffered in the accident included crushed left lower
limb. During the course of inquiry before the Tribunal, evidence was
led through Dr. Sumant Sinha (PW-3), who proved disability
certificate (Ex.PW3/1) as issued by medical Board of Pandit Madan
Mohan Malviya Hospital, affirming that the claimant has been
rendered permanently disabled, his physical impairment being
assessed as 50% in relation to the left lower limb. The Tribunal took
note of the fact that the claimant was in a clerical job in a private
entity (S.K. Styles Pvt. Ltd.). The Tribunal assumed the functional
disability to be 30% and granted the award under head of loss of
future earning capacity accordingly. Keeping in view the subsequent
developments, wherein on account of further surgical procedure, the
left leg below knee has been amputated, the extent of functional
disability has to be revisited. Following the ruling in a similarly placed
case, which was subject matter of MAC. Appeal No. 563/2009,
Oriental Insurance Co. Ltd. v. Smt. Sushila & Ors., decided on
23.08.2017, the functional disability of the claimant is taken as 60%.
8. It is noted, however, that the Tribunal having reached the
conclusion that the net income (after deduction of Income Tax
liability) during the relevant period was Rs.1,62,000/- failed to factor
in the element of future prospects of increase. Given the age (47 years)
of the claimant at the relevant point of time and the fact of he being in
a permanent job such element will have to be added to the extent of
30% as per the ruling of a 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.
9. The loss of income in future due to above mentioned functional
disability is, thus, re-computed as (1,62,000 X 130/100 X 60/100 X
13) Rs. 16,42,680/-.
10. The claimant has also shown from the record that the claimant
had to bear additional medical expenses to the tune of Rs.50,000/-
approximately in the further surgical procedure undergone which
needs to be added to the compensation. Allowed accordingly.
11. The grievance about the inadequacy of non-pecuniary damages
under the heads of pain and suffering and loss of amenities of life at
Rs.70,000/- are found to be correct. In the given facts and
circumstances, separate amounts under the head of pain and suffering
on one hand and loss of amenities of life on the other in the amounts
of sum Rs.1,50,000/- each are added.
12. Putting together all the heads of damages, including those
awarded by the Tribunal under different heads, the total compensation
in the case is re-calculated as (4,81,150 + 50,000 + 1,50,000 +
1,50,000 + 25,000 + 16,42,680 + 50,000) Rs.25,48,830/- rounded off
to Rs.25,49,000/- (Rupees Twenty Five Lakhs Forty Nine Thousand
Only). The award is modified accordingly. It shall carry interest as
levied by the Tribunal.
13. The insurer, during the contest before the Tribunal, had
examined Shri Vivek Yadav (R3W1), its Manager (Legal) to prove,
inter alia, report (Ex.R3W1/1) obtained under Right to Information
Act, from the transport authority, Agra (U.P.) dated 23.05.2009, to the
effect that the document purporting to be a driving licence bearing
registration No. DL-23968/AG/01 dated 31.12.2001, as had been
relied upon by the driver of the truck involved in the case, was a fake
document. This report obtained under the Right to Information Act
had been collected by the investigator engaged by the insurance
company, whose report (Ex.R3W1/3) was also submitted by some
witness. The witness of the insurance company also proved that it had
issued a notice under Order XII Rule 8 of Code of Civil Procedure,
1908 (CPC) to the owner of the truck in question calling upon her to
produce the relevant documents. The copy of the said notice (Ex.
R3W1/5) and the postal receipt (Ex.R3W1/6) besides courier receipt
(Ex.R3W1/7) established that the insurance company had issued such
a notice under Order XII Rule 8 CPC to the registered owner. The
witness of the insurer (R3W1) had also testified that the owner had not
responded to the said notice under Order XII Rule 8 CPC. The said
evidence remained unchallenged and unimpeached as there was no
contest put in by the owner or the driver from the inquiry. The
situation remains the same during the pendency of these appeals. No
documents showing the existence of any valid driving licence of the
driver or permit in respect of truck has been brought on record. The
natural inference from such facts and circumstances is that the driver
and owner of the offending vehicle are unable to show any such
document.
14. Consequently, the insurer must be held to have brought home its
case of breach of terms and conditions of the insurance policy. Hence,
it is granted recovery rights against the driver and owner.
15. By order dated 23.11.2012 (in MAC. Appeal No.1207/2012),
the insurance company had been directed to deposit 75% of the
awarded amount with up to date interest with the Tribunal and upon
such deposit being made, the amount was permitted to be released.
The said order was partially modified by subsequent orders dated
21.11.2013 and 24.02.2015. Since the compensation has been
enhanced, the entire balance held in deposit shall be released to the
claimant in terms of the directions in the judgment of the Tribunal.
The insurance company will be obliged to satisfy the enhanced
amount by requisite deposit with the Tribunal within 30 days. The
amount now payable under the modified award shall be released to the
claimant in the form of fixed deposit interest bearing receipt taken out
from a nationalized bank in the name of the claimant for a period of
five years with right to draw periodic interest.
16. The statutory deposit made by the insurance company will be
refunded after proof of award having been satisfied is shown.
17. Both the appeals are disposed of in above terms.
R.K.GAUBA, J.
DECEMBER 7, 2017
srb
