Delhi High Court
National Insurance Co. Ltd. vs Sanjay Kumar Virmani & Ors. on 25 October, 2017
$~357 & 358
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th October, 2017
+ MAC APPEAL 558/2011
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Manoj Ranjan Sinha,
Advocate
versus
SANJAY KUMAR VIRMANI & ORS. ..... Respondents
Through: None
+ MAC APPEAL 579/2011
SANJAY KUMAR VIRMANI & ANR ..... Appellant
Through: None
versus
GANGA SINGH & ORS. ..... Respondents
Through: Mr. Manoj Ranjan Sinha,
Advocate for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 04.02.2008, Ravinder Singh @ Raman, a bachelor, aged 37
years, suffered injuries in a motor vehicular accident involving
negligent driving of a bus bearing registration no.DL-1PB-4909
admittedly insured against third party risk for the period in question
with National Insurance Co. Ltd. (appellant in MACA 558/2011), and
died in the consequence. Two of his brothers, they being appellants in
MACA 579/2011 on their behalf and on behalf of their sisters, they
being Anju and Pooja @ Rekha, respondents in these appeals
(collectively, the claimants), instituted accident claim case (case
no.590/2008) on 16.04.2008 impleading, amongst others, appellant /
insurance company besides the driver and owner of the said offending
vehicle.
2. On the basis of the evidence led during inquiry, the Motor
Accident Claims Tribunal (Tribunal), by its judgment dated
23.03.2011, accepted the claim and awarded Rs.1,59,539/- as
compensation directing the insurer to pay with interest at the rate of
7.5% p.a., the said amount inclusive of Rs.25,000/- each towards
funeral charges and on account of loss of love and affection besides
Rs.1,09,539/- as dependency loss.
3. The insurance company on which the liability to pay the
compensation has been fastened, by its appeal MACA 558/2011,
reiterates the plea taken before the tribunal to the effect that the
driving licence on which Ganga Singh, the driver, relied on was a fake
document and, therefore, it should have been exonerated or at least
granted recovery rights.
4. On the other hand, the claimants by their appeal (MACA
579/2011) seek enhancement of compensation on the ground the same
has not been properly computed. Both these appeals, after completion
of service, were put in the list of regulars in terms of the directions
given earlier. When they are taken up for hearing, there is no
appearance on behalf of the claimants. It is noted that in the appeal of
the insurance company, Ganga Singh (third respondent) and Naresh
Kumar (fourth respondent / owner) had already been duly served and
had even appeared. At the hearing, however, even that set of parties
has chosen not to appear to assist.
5. The submissions of the counsel for the insurer have been heard
and with his assistance the record perused.
6. The contention of the claimants in their appeal about the
inadequacy of the award is found to be correct. The tribunal took note
of the fact that the claim is for and on behalf of the siblings. In this
view, it should have considered appropriate award under the head of
loss to estate by treating one-third of the earnings as the amount on
which the calculations had to be made. Instead of such normal rule
being followed, the tribunal deducted 85% of the income of the
deceased notionally assessed as his personal and living expenses. The
loss to estate is, thus, recomputed as [Rs.4057/3 x 12 x 15]
Rs.2,43,420 rounded off to Rs.2,44,000/- (Two Lakh and forty four
thousand only).
7. Having regard to the rulings in Rajesh & Ors. v. Rajbir Singh &
Ors., (2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015)
9 SCC 150, amount of Rs.1,00,000/- towards loss of love and
affection, besides Rs.25,000/- towards funeral expenses as awarded
are added.
8. Thus, the total compensation in the case comes to
[Rs.2,44,000/- + Rs.1,00,000/- + Rs.25,000/-] Rs.3,69,000/- (Rupees
Three Lakh and sixty nine thousand only). The award is modified
accordingly.
9. Following the consistent view taken by this Court, the rate of
interest is increased to 9% (nine percent) 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.].
10. The sisters of the deceased had relinquished their claim in the
compensation in favour of the appellants in MACA 579/2011. The
tribunal had apportioned the award accordingly. The said
apportionment shall remain undisturbed.
11. The insurance company had raised the issue of fake driving
licence and had submitted a report to such effect vide Ex. R3W1/3
proved by Dev Raj Arya (R3W1). The said report was, in turn, based
on the report of the Transport authority, Guwahati which purported to
be the office from where the document in question had been issued.
The Tribunal, however, was not impressed with the said evidence and
found deficiency in the efforts on the part of the insurance company
for the reason it had failed to obtain a report strictly in terms of Rule
5(b) of the Delhi Motor Accident Claims Tribunal's Rules 2008.
12. In the considered view of this court, the approach of the tribunal
was erroneous. The form prescribed under the aforesaid rules is one
of the methods on which the insurance company could have proved its
contention about absence of valid or effective driving licence. The
Tribunal failed to take note of further evidence to the effect that the
insurance company had issued a notice under Order XII Rule 8 of the
Code of Civil Procedure, 1908 (CPC) dated 01.12.2010 (Ex. R3W1/4)
addressed both to the driver and owner (third and fourth respondents
in MACA 558/2011), the same having been sent by post (vide postal
receipt Ex. R3W1/5, R3W1/7 and R3W1/8) calling them upon to
produce the relevant documents. The record of the tribunal clearly
shows that there was no response by the said respondents to the said
notice. The natural inference is that there was no valid or effective
driving licence that could be shown to exist.
13. In these circumstances, the plea of the insurance company that
there has been a breach of the terms and conditions of the insurance
policy deserves to be accepted. Since the case involves third party
rights, the proper approach would be to grant recovery rights to the
insurance company. Ordered accordingly.
14. The appeal of the insurance company was entertained on the
limited issue of recovery rights. Therefore, it would be liable to
satisfy the award, as modified above, by making requisite deposit with
the tribunal within 30 days in favour of the claimants and thereafter it
shall have the opportunity to take out appropriate proceedings before
the tribunal to enforce recovery rights which are hereby granted.
15. The statutory deposit shall be refunded to the insurance
company.
16. Both appeals and the pending application are disposed of in
above terms.
Dasti.
R.K.GAUBA, J.
OCTOBER 25, 2017/yg
