Delhi High Court
Oriental Insurance Company Ltd vs Om Prakash & Anr on 27 July, 2017
$~12 to 15 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th July, 2017
+ MAC.APP. 478/2015
ORIENTAL INSURANCE COMPANY LTD..... Appellant
Through: Mr. Tarkeshwar Nath, Adv.
with Mr. Onkar Nath, Adv.
versus
SUKHPAL SINGH & ANR ..... Respondents
Through: Mr. Abhishek Rai, Advocate for
R-2 along with R-2 in person.
+ MAC.APP. 480/2015
ORIENTAL INSURANCE COMPANY LTD..... Appellant
Through: Mr. Tarkeshwar Nath, Adv.
with Mr. Onkar Nath, Adv.
versus
OM PRAKASH & ANR ..... Respondents
Through: Mr. Abhishek Rai, Advocate for
R-2 along with R-2 in person.
+ MAC.APP. 481/2015
ORIENTAL INSURANCE COMPANY LTD..... Appellant
Through: Mr. Tarkeshwar Nath, Adv.
with Mr. Onkar Nath, Adv.
versus
SURAJ PAL & ANR ..... Respondents
Through: Mr. Abhishek Rai, Advocate for
R-2 along with R-2 in person.
MACA 478/2015 etc. Page 1 of 8
+ MAC.APP. 320/2016
ORIENTAL INSURANCE COMPANY LTD
..... Appellant
Through: Mr. Tarkeshwar Nath, Adv.
with Mr. Onkar Nath, Adv.
versus
BEENA PURI & ORS ..... Respondents
Through: Mr. Jitesh Vikram Srivastava,
Adv. for R-1 to R-3.
Mr. Abhishek Rai, Advocate for
R-4 along with R-2 in person.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 15.06.2012, Mohd. Ikram (one of the respondents in these
appeals), registered owner of car make Qualis bearing registration
No.DL-3CV-0019 ('the car' hereinafter), was driving it in direction of
village Hangoli, District Yamuna Nagar, Haryana from Delhi carrying
along several persons, including Ravinder Kumar Puri, Sukhpal Singh,
(first respondent in MAC APP.478/2015), Om Prakash (first
respondent in MAC APP.480/2015) and Suraj Pal (first respondent in
MAC APP.481/2015). The car had reached in the area of village
Chakchan Pur More at about 12:15 p.m., where due to high speed, the
said driver (Mohd. Ikram) lost control and the vehicle fell down from
the slope into a ditch on the road side, This resulted in said Ravinder
Kumar Puri, Sukhpal Singh, Om Prakash and Suraj Pal suffering
injuries and the former (Ravinder Kumar Puri) died in the
consequence. The widow and other members of the family of
Ravinder Kumar Puri, dependent upon him, they being first to third
respondents (in MAC APP.320/2016), besides one another instituted
accident claim case (Suit No.75/2013) on 28.02.2013 impleading
Mohd. Ikram as first respondent and Oriental Insurance Company
Limited (appellant in these appeals) as the second respondent, it being
the insurer of the car for the relevant period. The other three persons
injured in the accident, i.e., Sukhpal Singh, Om Prakash and Suraj Pal,
also instituted accident claim cases (Suit No.110-112/2013) on
02.04.2013 with similar array on the side of the respondents seeking
compensation for injuries suffered.
2. The three cases wherein compensation was sought for injuries
suffered were decided by common judgment of the Motor Accident
Claims Tribunal (the tribunal), it being passed on 04.09.2014. The
contention of the claimants about the accident having occurred due to
negligent driving on the part of Mohd. Ikram was upheld and
compensation was awarded in each case, the liability having been
fastened against the insurer (now the appellant).
3. In the claim case on account of death of Ravinder Kumar Puri
(Suit No.75/2013), the inquiry resulted in judgment dated 21.01.2016.
Again, the plea of negligent driving of the car by Mohd. Ikram was
upheld and compensation was awarded.
4. In the case of claim arising out of death of Ravinder Kumar
Puri, it is submitted by the insurance company that in working out the
loss of dependency, the tribunal did not take out the family pension of
Rs.10,000/- which the widow Beena Puri (PW-1) had admitted to be
in receipt after the death, the deceased being in the government
employment at the relevant point of time. This contention had not
been urged before the tribunal.
5. Be that as it may, the plea must be noted and rejected with
reference to the following observations of the Supreme Court in Helen
C. Rebello vs. Maharashtra State Road Transport Corporation &
Anr., (1999) 1 SCC 90, which reads as under:-
"35. Broadly, we may examine the receipt of the provident
fund which is a deferred payment out of the contribution
made by an employee during the tenure of his service. Such
employee or his heirs are entitled to receive this amount
irrespective of the accidental death. This amount is secured,
is certain to be received, while the amount under the Motor
Vehicles Act is uncertain and is receivable only on the
happening of the event, viz., accident, which may not take
place at all. Similarly, family pension is also earned by an
employee for the benefit of his family in the form of his
contribution in the service in terms of the service conditions
receivable by the heirs after his death. The heirs receive
family pension even otherwise than the accidental death. No
co-relation between the two. Similarly, life insurance policy
is received either by the insured or the heirs of the insured
on account of the contract with the insurer, for which the
insured contributes in the form of premium. It is receivable
even by the insured if he lives till maturity after paying all
the premiums. In the case of death, the insurer indemnifies
to pay the sum to the heirs, again in terms of the contract for
the premium paid. Again, this amount is receivable by the
claimant not on account of any accidental death but
otherwise on the insured's death. Death is only a step or
contingency in terms of the contract, to receive the amount.
Similarly any cash, bank balance, shares, fixed deposits, etc.
though are all a pecuniary advantage receivable by the heirs
on account of one's death but all these have no corelation
with the amount receivable under a statute occasioned only
on account of accidental death. How could such an amount
come within the periphery of the Motor Vehicles Act to be
termed as "pecuniary advantage" liable for deduction.
When we seek the principle of loss and gain, it has to be on
a similar and same plane having nexus, inter se, between
them and not to which there is no semblance of any co-
relation. The insured (deceased) contributes his own money
for which he receives the amount which has no co-relation
to the compensation computed as against the tortfeasor for
his negligence on account of the accident. As aforesaid, the
amount receivable as compensation under the Act is on
account of the injury or death without making any
contribution towards it, then how can the fruits of an amount
received through contributions of the insured be deducted
out of the amount receivable under the Motor Vehicles Act.
The amount under this Act he receives without any
contribution. As we have said, the compensation payable
under the Motor Vehicles Act is statutory while the amount
receivable under the life insurance policy is contractual."
(emphasis supplied)
6. Reiterating the above law, the Supreme Court in later case
reported as Vimal Kanwar & Ors. vs. Kishore Dan & Ors., (2013) 7
SCC 476, observed that though the benefits such as provident fund,
pension, insurance and similarly any cash, bank balance, shares, fixed
deposits, etc. are all "pecuniary advantage" receivable by the heirs on
account of one's death, "all these have no correlation with the amount
receivable under a statute occasioned only on account of accidental
death" and such amounts "will not come within the periphery of the
Motor Vehicles Act to be termed as "pecuniary advantage" liable for
deduction".
7. The contention of the insurance company, thus, is repelled.
8. In the other cases, by way of amended pleadings, the insurer
had raised the defence that it was not liable since the insurance policy
that had been issued restricted the liability of the insurer to "terms and
conditions of the policy", reference in this regard being made, by
evidence, to a circular (Ex.R3W1/C) issued on 16.11.2009. This plea
was rejected by the tribunal and, by judgment dated 21.01.2016
liability was fastened again on the insurer (the appellant).
9. These appeals have been preferred questioning the decision of
the tribunal in the two judgments, one being common to the three
injuries cases and the second relating to the death case, the contention
urged at the hearing being that it was "liability only policy"
10. Pertinently, during the inquiry before the tribunal in the three
injury cases the aforesaid contention had not even been urged as
defence and, therefore, the tribunal had no occasion to deal with the
said issue. The appellant, however, was permitted, on its applications,
to lead additional evidence during the pendency of the three connected
appeals arising out of the claim for compensation for injuries suffered
and has examined, pursuant to the said liberty Ms. Bharti Meena
(AW-1), its administrative officer, her deposition on the strength of
her affidavit (Ex.AW1/A) having been recorded on the file of MAC
APP.478/2015, it requiring to be read in the context of all these
connected appeals.
11. Noticeably, the evidence of AW-1 recorded as additional
evidence during the pendency of these appeals is more or less
reiteration of the evidence of Mr. B.C. Sharma (R3W1), another
administrative officer, who had been examined before the tribunal in
the claim arising out of death case.
12. The learned counsel for the insurance company places reliance
on United India Assurance Company Limited vs. Tilak Singh and Ors.,
(2006) 4 SCC 404 and Oriental Insurance Company Limited vs.
Sudhakaran K.V. and Ors., (2008) 7 SCC 428 to contend that the
insurance policy in these cases would not cover the risk of third party.
Reference is made to the circular dated 16.11.2009 (Ex.R3W1/C) and
to the copy of the policy certificate (Ex.AW1/1).
13. The tribunal while deciding the claim case arising out of death
noted that there was no evidence brought on record to show that
circular dated 16.11.2009 had been brought to the notice of the person
insured, the policy document clearly indicating that such circular was
not part of the terms and conditions indicated therein.
14. The above deficiency has come to the fore yet again in the
additional evidence led through AW-1. The witness admitted that the
policy certificate would not indicate any terms or condition except the
limitation as to use of the vehicle. But then, she pointed out to a note
on the second page of the document requiring reference to the
company's website for eliciting the conditions, warranties, etc. The
contract of the insurance has to be read and construed on the basis of
policy document issued. Reference elsewhere cannot be read into the
contract. There being nothing in the policy document limiting the
liability of the insurance company, the plea cannot be accepted.
15. Thus, the appeals are devoid of any substance and dismissed.
16. The appellant insurance company is directed to satisfy the
award in the three injury cases by requisite deposits with the Tribunal
within thirty days.
17. In the case of death (MAC APP.320/2016), the insurer had been
directed to deposit the entire awarded amount with upto date interest
within thirty days. Though the record does not indicate compliance, if
such deposit has been made, the amount shall be released to the
claimants. In case there is default, the insurance company would be
duty bound to deposit the amount with the Tribunal forthwith, making
it available to be released to the claimants.
18. Statutory deposits shall be refunded after the proof is adduced
of due satisfaction of the award in each case.
19. The appeals are disposed of with these directions.
20. Pending applications also stand disposed of.
R.K.GAUBA, J.
JULY 27, 2017
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