Delhi High Court
Oriental Insurance. Co. Ltd. vs Poonam Sharma & Ors. on 8 September, 2017
$~R-173 & 173A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 8th September, 2017
+ MAC APPEAL No. 89/2010
ORIENTAL INSURANCE. CO. LTD. ..... Appellants
Through: Mr. Pankaj Seth, Adv.
versus
POONAM SHARMA & ORS. ..... Respondent
Through: Mr. Nitinjya Chaudhary, Adv.
+ MAC APPEAL No. 210/2010
POONAM SHARMA & ORS. ..... Appellants
Through: Mr. Nitinjya Chaudhary, Adv.
versus
ORIENTAL IN. CO. LTD. & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Kanti Mohan Sharma, suffered injuries in motor vehicular
accident that occurred on 26.12.1997 at about 2:30 PM, statedly due to
negligent driving of truck bearing registration no. DL 1L 767,
admittedly insured against third party risk with Oriental Insurance
Company Ltd. (appellant in MAC Appeal No. 89/2010). His wife
and other members of the family dependent upon him (claimants),
they being appellants in MAC Appeal no. 210/2010, instituted
accident claim case no. 995198 (old) [791/04 (new)] on 15.07.1998,
seeking compensation impleading besides the insurer, the driver and
owner of the offending vehicle, on the averments that the accident had
occurred due to negligent driving of the said vehicle. The tribunal
held inquiry and, on the basis of evidence adduced, accepted the said
claim and by judgment dated 16.11.2009, it awarded compensation in
the sum of Rs. 4,11,260, with interest @ 7.5% (seven & half per cent)
per annum in favour of the claimants, calculating the loss of
dependency on the basis of minimum wages of an unskilled worker,
then payable at Rs. 1,784/- per month rejecting the plea that the
deceased was earning Rs. 25,000/- per month from his business of
Freight Forwarding and artificial jewellery.
2. Both the claimants and insurer, feeling aggrieved, have come to
this Court with their respective appeals.
3. The claimants arguments is that the evidence to the extent then
available had been adduced to support the claim about the earnings of
the deceased being in the region pleaded, such evidence inclusive of
proof to the effect that his children were students in educational
institutions of repute, they paying Rs. 36,000/- per annum as tuition
fee, the calculation is based on mechanical adoption of minimum
wages as the benchmark. The claimants are also aggrieved with the
awards under the non-pecuniary heads of damages.
4. On the other hand, the insurer questions the finding returned by
the tribunal on the question of involvement of the insured vehicle and
the negligence on the part of its driver, its submission being that the
conclusions are unfounded. On the computation of loss of
dependency, the insurer is aggrieved with the addition of element of
future prospects of income in a case where the tribunal felt constrained
to assess the income notionally with the help of minimum wages. It
also pleads that there was breach of terms and conditions of the
insurance policy since the driving licence relied upon by the driver
and owner of the vehicle, upon verification, had been found to be fake.
5. The contention of the insurance company about the trial Court
not having properly dealt with the evidence about the involvement of
the truck or negligence on the part of its driver may be correct, but
then it does not mean that there was no evidence which supports the
case of the claimants to such effect. The evidence recorded during the
inquiry includes the testimony of Ajay Shukla (PW-1), a scooterist,
who deposed on oath that he was also present at the scene moving on
his vehicle on his way. He described the sequence of events wherein
the truck had hit the scooter of the deceased from behind. The police
investigation of the corresponding criminal case registered as FIR No.
835/1997 in police station Hazarat Nizamuddin, resulted in report
under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C)
(Ex.PW-1/11) wherein PW-1 was not cited as a witness. But, this by
itself cannot mean that evidence of PW-1 is to be thrown out as
unbelievable. The police may not have relied on the evidence of PW-
1 possibly for the reason that it had some other witness available to it,
he also being a chance witness, who had narrated the sequence of
events. In these facts and circumstances and the fact that the sixth
respondent Raj Bahadur (driver of the offending vehicle) was not
called upon by any of the contesting parties to depose about his
version, the plea of the insurance company against the finding on the
issue of involvement of negligence is rejected.
6. The issues that persist, however, relate to the determination of
the compensation that is to be awarded and the plea of the insurance
company for recovery rights.
7. During the course of hearing, the learned counsel for the
claimants submitted, that in order that the claimants are not deprived
of just compensation, they may be given opportunity to lead additional
evidence to bring on record proper proof, if not of the actual earnings
of the deceased, at least of the expenditure that he would be incurring
on himself and his family, so that more accurate assessment of his
actual earnings may be made. The counsel for the insurer, on being
asked to respond, submitted that he leaves the matter to the discretion
of the Court. At the same time, he submitted that if the matter were to
be remitted for the afore-mentioned purposes to the Tribunal, the issue
of recovery rights may also be relegated to the Tribunal for fresh
determination.
8. Having regard to the above-noted submissions, the limited
issues relating to the determination of the just compensation and the
plea for recovery rights raised on behalf of the insurer are remitted to
the Tribunal for further inquiry and fresh adjudication. In the said
further inquiry, the claimants will be entitled to adduce additional
evidence. Needless to add, the parties which contest will also be given
similar opportunity to lead evidence in rebuttal, if any.
9. The parties shall assemble before the Tribunal for such further
proceedings on 9th October, 2017. Given the fact that the case relates
to accident of 1997, it must be added that the Tribunal will be obliged
to hold expeditious proceedings for which the parties and their counsel
are directed to render full cooperation. The fresh decision on the
limited issues will have to be taken by the Tribunal at an early date
preferably not later than six months from the date of first appearance
hereby fixed. The issue of recovery rights will also be determined
afresh on the light of evidence already led, or as may be adduced
hereinafter additionally. But, for such purpose, the Tribunal will have
to secure the presence of owner and driver by requisite notices to
them.
10. By order dated 15.02.2010 on MAC Appeal No. 89/2010, the
insurance company had been directed to deposit the entire awarded
amount with interest with UCO Bank, Delhi High Court Branch, some
portion whereof has already been released to the claimants in terms of
the subsequent orders. The balance lying in deposit with accrued
interest shall presently be refunded to the insurance company. The
amount already received by the claimants will be liable to be adjusted
against the award that is expected to be passed afresh. The registry,
shall intimate, to the tribunal, the amount already paid to the claimants
so that it can pass necessary directions at the time of fresh
adjudication.
11. The statutory amount of the insurance company shall be
presently refunded.
12. Both appeals stand disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 08, 2017
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