Delhi High Court
Future Generali India Insurance ... vs Suman Goswami & Ors on 10 November, 2017
$~R-466 & 466A
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 10th November, 2017
+ MAC.APP. 235/2012
FUTURE GENERALI INDIA INSURANCE CO LTD
..... Appellant
Through: Mr. Arihant Jain for Ms.
Shantha Devi Raman, Adv.
versus
SUMAN GOSWAMI & ORS ..... Respondents
Through: Mr. Navneet Goyal, Adv. for R-
7.
+ MAC.APP. 163/2013
ABHISHEK SETHI ..... Appellant
Through: Mr. Navneet Goyal, Adv.
versus
SUMAN GOSWAMI & ORS ..... Respondents
Through: Mr. Arihant Jain for Ms.
Shantha Devi Raman, Adv. for
R-7.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Prakash Goswami, a driver by profession, then aged 36 years,
died as a result of injuries suffered in motor vehicular accident that
occurred on 21.08.2008, statedly due to collision between motorcycle
bearing registration no. DL 8S AH 9873 (the motorcycle) and scooter
bearing registration no. DL 8SS 8831 (the scooter). The deceased was
riding on the motorcycle while the scooter is stated to have been
driven by Vipul Mehta (a respondent in these appeals).
2. Suman Goswami, wife of the deceased, with four other
members of the family dependent on him (collectively, the claimants),
instituted accident claim case (MACT Case No. 265/10/08) on
24.09.2008 seeking compensation on the averments that the death had
occurred due to negligence on the part of scooterist Vipul Mehta. The
said claimants are respondents in these appeals (first to fifth
respondents).
3. The tribunal held inquiry and, by judgment dated 13.01.2012,
returned a finding that the accident and death had occurred due to
negligence on the part of the scooterist holding him (driver) and
Abhishek Sethi (appellant in MAC Appeal No. 163/2013) jointly and
severally liable to pay compensation, the latter being admittedly the
registered owner of the scooter.
4. The scooter was concededly insured against third party risk
with Future Generali India Insurance
Co. Ltd (insurer) which is the appellant in MAC Appeal No. 235/2012
and seventh respondent in MAC Appeal no. 163/2013.
5. The tribunal awarded compensation in the total sum of Rs.
15,30,000/- in favour of the claimants, calculating it thus:-
S.No. Heads Compensation
1. Loss of dependency Rs. 13,50,000/-
2. Funeral charges Rs. 10,000/-
3. Loss of estate Rs. 10,000/-
4. Loss of consortium Rs. 10,000/-
5. Loss of company of deceased Rs. 50,000/-
6. Loss of love and affection Rs. 1,00,000/-
Total Rs. 15,30,000/-
6. The liability to pay the compensation to the claimants was
fastened initially on the insurer, though it was granted recovery rights
against the registered owner of the scooter on the basis of finding that
the scooter driver was not holding a valid or effective driving licence
at the relevant point of time.
7. The insurer, by its appeal (MAC Appeal No. 235/2012), has
questioned the impugned judgment of the tribunal on the ground that
the income of Rs. 10,000/- of the deceased was wrongly accepted to
calculate the loss of dependency and that the awards under the non-
pecuniary heads of damages are excessive. It also submits that in
view of the evidence led to show that the driving licence relied upon
by the driver and owner was fake, instead of being called upon to pay
it should have been exonerated.
8. On the other hand, the registered owner of the scooter, by his
appeal (MAC Appeal no. 163/2013), also questions the computation
of compensation on above grounds and submits that negligence was
not strictly proved.
9. Having heard the learned counsel for the insurer and the owner
of the scooter, and having perused the tribunal's record, this Court
finds no good ground to disturb the findings returned by the tribunal
about the negligence on the part of the scooter driver. Though the
allegation of negligence had been disputed by the scooter driver there
was virtually no contest at the time of the inquiry. The tribunal, it is
seen, has gone by the principle of res ipsa loquitur and has returned a
finding on the issue of negligence which consequently does not call
for any interference, particularly in the face of the fact that there was
no effort made to examine the scooter driver to bring out facts to the
contrary.
10. The evidence of D.K. Devgan (PW-2), employer of the
deceased, about his engagement with him as a driver at a salary of Rs.
10,000/- per month was not challenged by any effective cross-
examination. There is not even a remote suggestion given to him that
his deposition was false. In these circumstances, the plea now taken to
question the loss of dependency is unacceptable.
11. In view of the ruling of the 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., however, the
objection to the non-pecuniary heads of damages must be accepted.
Instead of awards granted by the tribunal, under the above-mentioned
heads, Rs. 15,000/- each towards loss to estate and funeral expenses
and Rs. 40,000 on account of loss of consortium are granted. This
would mean the total compensation would stand reduced by
(1,80,000- 70,000) Rs. 1,10,000/-.
12. The total award of compensation is, thus, reduced to
(15,30,000-1,10,000) Rs. 14,20,000/- (Rupees Fourteen Lacs and
Twelve Thousand Only). The award is modified accordingly.
13. On the issue of recovery rights, the registered owner has argued
that there was no notice received under Order XII Rule 8 of the Code
of Civil Procedure, 1908 (CPC), as was sought to be established
through the evidence of R3W2. It is noted, however, that when the
said witness was examined, the deposition was not challenged by the
registered owner as he would not even participate in the inquiry. The
evidence of the insurer in this regard has gone unimpeached. It may
also be added that R3W1 has also proved that the driving licence,
copy whereof was presented, was found to be fake. In these
circumstances, there is no escape for the registered owner from the
recovery rights.
14. The plea of the insurer that instead of being asked to pay and
then granted right to recover, it should have been totally exonerated,
cannot also be accepted as the third party interest cannot be defeated.
Since the interests of the insurer are duly protected, it should not
grudge the statutory responsibility placed at its door.
15. By order dated 05.03.2012 in MAC Appeal No. 235/2012, the
insurance company had been directed to deposit 80% of the awarded
amount with the Registrar General. By subsequent order dated
27.05.2013, 50% of the amount thus deposited was permitted to be
released to the claimants. In terms of further directions by order dated
01.09.2014, another sum of Rs. 1,00,000/- was released to the first
claimant.
16. The registry shall now calculate the amount payable to the
claimants under the modified award and release the balance from the
remainder, refunding the excess, if any, to the insurer. Conversely, if
there is any deficiency in the payment, the insurer will be liable to
make the same good by requisite deposit with the tribunal within thirty
days to be made available to be released to the claimants.
17. The insurer may exercise its recovery rights by taking out
appropriate proceedings before the tribunal.
18. Statutory amount made by the insurer shall be refunded up on
proof of deposit being shown.
19. The appeals are disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 10, 2017
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