Delhi High Court
Oriental Insurance Co Ltd vs Mohd. Shamim & Ors. on 14 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: February 14, 2017
+ MAC.APP. 626/2008
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. Ram N. Sharma, Advocate
versus
MOHD. SHAMIM & ORS .....Respondents
Through: Mr. J.S. Kanwar, Advocate for
respondents No.1 & 2
Mr. Sanjeev Bindal, Advocate for
respondent No.5
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
C.M.45675/2016 (delay)
There is delay of 2748 days in filing the accompanying application
for cross-objections.
Upon hearing, I find that averments in paragraph No.3 of the
instant application provide sufficient cause to condone the delay. The
application is allowed and the delay is condoned.
MAC.APP. 626/2008 & C.M.45674/2016 (cross-objection)
By way of C.M. 45674/2016, cross-objections are sought to be
placed on record. The same are taken on record.
By way of these cross-objections, respondents-claimants seek
enhancement of compensation.
Challenge to the impugned Award of 3rd September, 2008 in this
appeal by appellant-Insurer is on the ground that the recovery rights have
not been granted to appellant although a finding has been returned in
impugned Award that driver of motorcycle in question was not holding
valid driving licence.
Compensation of `1,82,500/- has been granted to respondents-
claimants on account of death of a seven year old child in a road accident
on 21st April, 1998. The factual background of this case is already noticed
in impugned Award and so, it needs no reproduction for the reason that
there is no substantive challenge to impugned Award. In this appeal,
relief is infact claimed against respondents No.3 & 4, who are driver and
owner of vehicle in question. As per order of 15th December, 2009,
respondents No.3 & 4 were duly represented by counsel, but later on,
there is no representation on their behalf. Pertinently, the owner and
driver of vehicle in question had not contested the claim petition before
learned Tribunal.
Upon hearing and on perusal of impugned Award, I find that the
finding returned by learned Tribunal on the validity of driving licence is
clinching. To be more specific, the finding returned in impugned Award
is that driver of vehicle in question was not holding a valid and effective
driving licence on the day of the accident. Infact, in paragraph No.42 of
impugned Award, what has been recorded on the liability aspect is as
under: -
"Though it is proved that the offending vehicle was
duly insured with the respondent No.2/insurance company but
the insurance company has also proved that the driver of the
offending vehicle was not holding a valid driving license on
the date of accident. Hence, respondent no.2 is held liable to
pay the compensation though it is entitled to recover the same
from respondent no.1 and 3."
From the aforesaid, it is evident that recovery rights have been
granted to appellant. Learned counsel for appellant-Insurer submits that
the operative portion of impugned Award is silent on it and it be clarified
that appellant has the recovery rights against respondents No.3 & 4, who
are owner and driver of vehicle in question. It is noted in order of 15th
December, 2009 that as per appellant, entire awarded amount has been
paid to respondents-claimants.
Upon hearing both the sides on the appeal as well as the cross-
objections, I find that in view Supreme Court's decision in Kishan Gopal
and Another v. Lala and Others, 2014 1 SCC 244, the total compensation
payable for death of a child aged between 5 to 10 years is `2 lacs. By
applying the afore-noted dictum of Supreme Court in Kishan Gopal
(supra) to the facts of the instant case, the quantum of compensation
awarded is enhanced from `1,82,500/- to `2 lacs.
The enhanced compensation of `17,500/- shall carry the rate of
interest @ 7.5% per annum.
Upon respondents-claimants' counsel furnishing the bank details of
respondents-claimants to appellant within a week, the enhanced
compensation with interest be transmitted in equal proportion into
respondents-claimants' bank accounts within four weeks.
In view of aforesaid, this appeal and cross objections filed on
behalf of respondents-claimants are disposed of while making it clear that
appellant shall have recovery rights qua respondents No.3 & 4 in respect
of compensation paid by appellant to respondents-claimants.
Statutory deposit, if any, be refunded to appellant-Insurer as per
rules.
(SUNIL GAUR)
JUDGE
FEBRUARY 14, 2017
s
