Delhi High Court
Bijender vs M/S Shriram General Insurance ... on 23 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 23, 2018
+ MAC.APP. 202/2013
RAJESH YADAV ..... Appellant
Through: Mr. Navneet Goyal, Advocate
Versus
RAJU LAMA AND ORS. .....Respondents
Through: Mr. Sunil K. Kalra and Mr. Ajay
Bidhuri, Advocates for respondents
No.2
Mr. Sameer Nandwani, Advocate
for respondent-Insurer
+ MAC.APP. 132/2014
BIJENDER ..... Appellant
Through: Mr. Sunil K. Kalra and Mr. Ajay
Bidhuri, Advocates
Versus
M/S SHRIRAM GENERAL INSURANCE COMPANY LTD.
.....Respondent
Through: Mr. Sameer Nandwani, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 23rd November, 2012 grants compensation of
`2,94,728/- with interest @ 7.5% per annum to Rajesh-a fireman, aged 37
years (hereinafter referred to as „the Injured‟) on account of grievous
injuries suffered by him in a vehicular accident, which took place on 12th
May, 2011.
2. In the above-captioned first appeal, enhancement of compensation
is sought by the Injured whereas in the above-captioned second appeal,
Bijender, owner of the insured vehicle (hereinafter referred to as „the
Owner‟), seeks setting aside of recovery rights granted by the Tribunal to
Insurer of the insured vehicle in question. Since both the appeals arise out
of common impugned Award, therefore, with the consent of learned
counsel for the parties, these appeals have been heard together and are
being decided by this common judgment.
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Brief facts as epitomized in the petition are that on
the date of accident at about 01:30 a.m., the victim met with
an accident in front of farm house opposite Rajokari Air
Force Station, Delhi when his two wheeler scooter bearing
registration no. DL-8SQ-6714 was hit by a goods vehicle
bearing no. DL-LG-2529 being driven by its driver in a rash
and negligent manner. He was removed to hospital and an
FIR no.118 dated 12.05.2011 was registered u/s 279/337 IPC
with police station Vasant Kunj, New Delhi for this
accident."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as „the Tribunal‟) has relied upon evidence of the
Injured and other evidence on record. The breakup of compensation
awarded by the Tribunal is as under:-
Loss of allowances/leave `2,10,280/-
Medical expenses ` 39,448/-
Conveyance, special diet and ` 20,000/-
other incidental charges
Pain and suffering ` 25,000/-
Total ` 2,94,728/-
5. During the pendency of the above-captioned appeals, the court had
permitted the Injured to lead additional evidence while granting
opportunity to the opposite side to lead additional evidence in rebuttal. In
the additional evidence led, the Injured has deposed as AW-1 regarding
further medical treatment taken by him. In rebuttal, the Owner has led
evidence as R2W1 regarding the exercise of due diligence in employing
the driver, who was driving the insured vehicle on the day of the accident.
6. Learned counsel for the Owner assails impugned Award on the
ground that recovery rights have been wrongly granted by the Tribunal to
the Insurer. It is submitted by Owner's counsel that the owner had
exercised due diligence in employing the driver on the insured vehicle
and places reliance upon Supreme Court's decision in United India
Insurance Co. Ltd. V. Lehru, (2003) 3 SCC 338 to submit that the liability
to pay the awarded compensation is of the Insurer and not of the Owner
of the insured vehicle.
7. On the other hand, learned counsel for the Injured seeks
enhancement in the quantum of compensation granted by the Tribunal by
submitting that the compensation granted by the Tribunal under the „non-
pecuniary heads‟ is wholly inadequate. Reliance is placed upon
additional evidence led by the Injured, to submit that after passing of the
impugned Award, the Injured had remained under treatment for 28 days
and for this period, leave was availed by him and so, under the head of
„loss of leave‟, compensation of `22,531/-, i.e., one month's salary, ought
to be paid to him. Thus, it is submitted that the quantum of compensation
granted by the Tribunal needs to be suitably enhanced.
8. On the contrary, learned counsel for Insurer supports the impugned
Award and submits that the compensation granted by the Tribunal is
justified and no case for its enhancement is made out.
9. Upon hearing and on perusal of impugned Award, the evidence as
well as additional evidence on record and the decision cited, I find that in
view of additional evidence led by the Injured, he is entitled to a sum of
`22,531/-, i.e., his one month's salary, under the head of „loss of leave‟
and is ordered accordingly.
10. As regards compensation granted under the „non-pecuniary heads‟,
I find that due to injuries suffered by the Injured in this accident, he had
to remain under treatment for nearly 10 months and so, compensation
granted by the Tribunal under the head of ‟pain and suffering‟ needs to be
enhanced from `25,000/- to `50,000/- and is enhanced as such. Even the
„conveyance, special diet and other incidental charges‟ granted by the
Tribunal appear to be on lower side and therefore, the composite
compensation of `20,000/- granted by the Tribunal under this head is
enhanced to `40,000/-.
11. In view of the aforesaid, the compensation payable to the Injured is
reassessed as under: -
Loss of allowances/leave `2,10,280/-
Medical expenses ` 39,448/-
Loss of leave for 28 days ` 22,531/-
Conveyance, special diet and ` 40,000/-
other incidental charges
Pain and suffering ` 50,000/-
Total ` 3,62,259/-
12. So far as the liability aspect is concerned, strictly speaking, in
rebuttal, the Owner could not have led evidence regarding due diligence
aspect. However, the additional evidence led by the Owner cannot be
altogether ignored as, to determine the liability, the aspect of due
diligence has to be considered. In the additional evidence led by the
Owner, it is categorically asserted that before employing the driver on the
insured vehicle, he had checked his driving licence and had employed
him after the driving licence of the said driver had appeared to be
genuine. It is also the case of the Owner that the driving skills of the said
driver was also tested by the Owner.
13. On the due diligence aspect, pertinent observation of Supreme
Court in Pepsu RTC v. National Insurance Co., (2013) 10 SCC 217 are as
under: -
"......a two-Judge Bench of this Court has taken the
view that the Insurance Company cannot be permitted to
avoid its liability only on the ground that the person driving
the vehicle at the time of accident was not duly licensed. It
was further held that the wilful breach of the conditions of
the policy should be established. Still further it was held
that it was not expected of the employer to verify the
genuineness of a driving licence from the issuing authority
at the time of employment. The employer needs to only test
the capacity of the driver and if after such test, he has been
appointed, there cannot be any liability on the employer.
The situation would be different when the employer was told
that the driving licence of its employee is fake or false and
yet the employer was not taking appropriate action to get
the same duly verified from the issuing authority."
14. In light of aforenoted settled legal position and the evidence on
record, the recovery rights granted by the Tribunal to Insurer are hereby
set aside and the liability is put on the Insurer to pay the reassessed
compensation.
15. So far as interest granted by the Tribunal on the awarded
compensation is concerned, a Three Judge Bench of Supreme Court in a
recent decision of Jagdish v. Mohan and Others, (2018) 4 SCC 571 has
granted interest @ 9% per annum on the awarded compensation and so,
the Injured is also entitled to interest @ 9% per annum instead of 7.5%
per annum.
16. Consequentially, the compensation amount payable stands
enhanced from `2,94,728/- to `3,62,259/-, which shall carry interest @
9% per annum. The enhanced compensation be deposited by Insurer with
the Tribunal within six weeks from today. Thereafter, the reassessed
compensation be transmitted directly into the bank account of the Injured
forthwith.
17. With aforesaid directions, the above captioned two appeals are
disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 23, 2018
s
