Delhi High Court
Bajaj Allianz General Insurance ... vs Surender Singh & Ors. on 30 November, 2017
$~R-598
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 30th November, 2017
+ MAC.APP. 993/2012 & CM No. 15727/2012 (stay)
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
versus
SURENDER SINGH & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Jagdeep Singh, a bachelor, aged 21 years, was travelling in a
Tempo Tata 407 bearing registration no. HR-55-5870, with certain
other persons, on 25.08.2008, when due to its negligent driving by the
third respondent, they met with an accident, resulting in several
persons including Jagdeep Singh, suffering injuries he dying in the
consequence. His parents (the claimants), they being first and second
respondent in appeal, instituted accident claim case MACT No.
833/2010 on 03.01.2009 seeking compensation under Sections 166
and 140 of the Motor Vehicles Act, 1988 in which, besides the third
respondent (driver), the fourth respondent and the appellant were
impleaded as parties, they being the owner and insurer respectively of
the vehicle in question. After inquiry, by impugned order dated
04.07.2012, the tribunal awarded compensation in the sum of Rs.
10,96,000/- and directed the insurer to pay with interest as 12% per
annum, also adding the liability to pay Rs.75,000/- as counsel fee
along with Rs. 10,000/- as out of pocket expenses. The insurer, in its
contest, had taken the plea that the deceased was a gratuitous
passenger and therefore, it was not a case where it could be called
upon to indemnify. Evidence in this regard was led before the
Tribunal. However, the tribunal did not find such plea to be
acceptable. It also repelled the contention that there was no valid
driving licence and permit at the relevant point of time.
2. By the appeal at hand, the insurer questions the computation of
the award, challenging the grant of Rs. 2,00,000/- towards loss of love
and affection, Rs. 20,000/- towards loss of estate, Rs. 1,00,000
towards loss of care and services and also the rate of interest levied @
12% p.a., it besides assailing the directions for payment of counsel fee
and out of pocket expenses. It also pleads the case of breach of terms
and conditions of the insurance policy.
3. The third and fourth respondents (i.e. the driver and the owner
of the offending vehicle), had been duly served in this appeal and had
even appeared at one stage. Thereafter, they stopped appearing. The
appeal was put in the list of 'Regulars' to come up on its turn, as per
order dated 23.02.2016. When the appeal is taken up for hearing, there
is no appearance on their behalf.
4. The appeal has been heard with assistance of learned counsel
for the appellant and the record perused.
5. It is noted that during inquiry before the tribunal as well, both
the said parties (owner and driver), had chosen to suffer the
proceeding ex-parte.
6. There is a need for re-calculation of compensation in the case
at hand, as the non-pecuniary damages awarded by the tribunal are
way beyond the dispensation given by 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., In this
view, in their lieu, Rs. 15,000/- each under the heads of funeral
expenses and loss of estate are added. Thus, the compensation is
reduced to Rs. (7,56,000+15,000+15,000) Rs. 7,86,000/- (Seven
Lakhs and Eighty Six Thousand only).
7. No special reasons were set out in the impugned judgment as to
why the rate of interest was levied at 12% per annum, which is beyond
the ordinary. Following the consistent view taken by this Court, the
rate of interest is reduced to 9% per annum, from the date of filing of
the petition till realization. [see judgment dated 22.02.2016 in
MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi &
Ors.].
8. There being no justification for such inclusion, the directions
for payment of counsel fee and out of pocket expenses are set aside.
9. The evidence led by the insurer through Vishesh Thakur
(R3W1), Senior Executive of the insurer had proved the policy and the
notice under Order XII Rule 8 CPC, 1908 issued to the owner and
driver of the offending vehicle.
10. PW2 had admitted during the course of his cross-examination
that the deceased was travelling in the vehicle as a gratuitous
passenger. The vehicle was admittedly a goods carrying vehicle and
the goods carried at the time of the accident did not belong either to
the deceased or anyone he represented. In these circumstances, there
was a breach of terms and conditions of the insurance policy, the
testimony of witness (R3W1) had proved that it had called upon driver
and the owner of the offending vehicle by notice (R3W1/2) under
Order XII Rule 8 of the Code of Civil Procedure, 1908 (CPC), sent by
post (Ex-R3W1/3, 4) to produce the relevant documents to which
there was no response. The driver and the owner did not lead any
evidence to prove that the driver (third respondent) of the vehicle was
in possession of a valid driving licence at the relevant point of time.
The owner did not lead evidence to prove that the vehicle was covered
by a valid permit.
11. All these facts clearly show that there was a breach of terms
and conditions of insurance policy on which the plea of the insurer
deserves to be accepted.
12. In the given facts and circumstances, it is deemed just and
proper by the court that the insurer initially bears the burden of
payment of compensation to the claimants and then takes out
appropriate execution proceedings for enforcing its recovery rights
against the registered owner of the vehicle and the driver i.e. the third
and fourth respondents who are held liable. It is directed accordingly.
13. Thus, the insurance company is directed to deposit the
compensation in terms of the award modified as above with accrued
interest @ 9% p.a. thereupon with the tribunal, within 30 days, making
it available to be released to the claimants.
14. After satisfying the award, the insurance company may take out
appropriate steps before the tribunal for enforcing the recovery rights
which are hereby granted against the third and fourth respondents.
15. The statutory deposit shall be refunded to the appellant after
proof is shown of the award having been satisfied.
16. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
NOVEMBER 30, 2017
umang
