Delhi High Court
National Insurance Co. Ltd. vs Mahinder Singh & Ors. on 25 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: January 25, 2017
+ MAC.APP. 429/2008 & C.M.10894/2008 & C.M.No.581/09 &
C.M.No. 15581/2009
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Advocate
Versus
MAHINDER SINGH & ORS. .....Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. Impugned Award of 31st March, 2008 grants compensation of
`4,50,000/- with interest @ 7.5% per annum on account of death of a
housemaid-Rekha Devi aged 42 years in a vehicular accident on 1 st
November, 2004. The facts of this case are already noted in the impugned
Award and so, needs no reproduction. Suffice to note that appellant-
insurer had also got examined concerned witness (R2W1) from the
Transport Authority and had placed on record details of licence
particulars as Ex.R2W1/A and as per this witness, the licence was valid
on the day of the accident.
2. By taking the income of deceased as `40,000/- per annum and by
applying the multiplier of 15, loss of income has been assessed by learned
Tribunal at `6 lacs and after deducting 1/3rd towards personal expenses,
the income of the deceased has been taken to be `4 lacs. Compensation of
`10,000/- has been granted towards 'loss of consortium' and `5,000/-
towards 'funeral expenses', 'loss of estate', etc. and `25,000/- has been
granted towards loss of love and affection.
3. Challenge to impugned Award by learned counsel for appellant-
insurer is on the ground that driver's driving licence of the vehicle in
question was for Light Motor Vehicle (Commercial) and was not for
driving motorcycle and so, the liability is of owner of vehicle in question
to pay the compensation awarded. Attention of this Court is drawn to
Sub-section 2 of Section 10 of Motor Vehicles Act, 1988 to submit that
licence in question was not valid for driving motorcycle with or without
gear and so, recovery rights ought to have been granted to appellant-
insurer. Reliance is placed upon Supreme Court's decision in Oriental
Insurance Company Limited Vs. Zaharulnisha & ors. (2008) 12 SCC 385
to submit that a scooterist having a driving license for heavy motor
vehicle was held to be invalid being violative of Section 10(2) of The
Motor Vehicles Act and the recovery rights were granted to the insurer.
4. Despite substituted service, none has appeared on behalf of
contesting respondent No.5-owner of the vehicle in question. Even before
learned Tribunal, respondent-owner was ex parte. So, nothing is on
record to indicate that owner had exercised due diligence.
5. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that quantum of compensation
granted is just and reasonable, but since the driver of motor cycle in
question was holding a driving license for light motor vehicle (which is
not inclusive of motor cycle), so it is invalid in view of Sub-Section 2 of
Section 10 of Motor Vehicles Act, 1988. Applying the ratio of Supreme
Court's decision in Zaharulnisha (supra), to the facts of instant case, it is
held that though the liability to pay compensation is not of appellant but
in the facts of this case, the awarded amount deposited by appellant in
terms of order of 4th August, 2008 be released to respondents-claimants,
as directed in the impugned Award.
6. In view of the aforesaid, appellant is granted recovery rights
against respondents No.5-owner and respondent No.6-driver, who are
held to be jointly and severely liable to pay the awarded amount with
interest to appellant.
7. The statutory amount deposited, if any, be refunded to appellant as
per rules.
8. The impugned Award is accordingly modified and this appeal and
applications are disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 25, 2017
s/r
