Delhi High Court
Icici Lombard General Insurance ... vs Dinesh Kumar & Ors on 7 March, 2018
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 07th March, 2018
+ MAC.APP. 802/2017 & CM No.32620/2017 & 2663/2018
ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD ..... Appellant
Through: Mr. Vishnu Mehra, Adv.
[
versus
DINESH KUMAR & ORS ..... Respondents
Through: Mr. Anupam Yashvardhan, Adv. for
R1 to R3.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged award of the Claims Tribunal whereby
compensation of Rs.2,72,75,000/- has been awarded to respondents No.1 to 3.
2. On 13th October, 2013, Sidhant Sharma aged 21 years was hit by car
bearing No. DL-9CM-4057 which resulted in the fatal injuries. The deceased
was survived by his parents and brother who filed an application for
compensation before the Claims Tribunal claiming compensation of
Rs.50,00,000/- on the ground that the deceased was a student of BBA
earning Rs.16,000/- per month. However, at the stage of the evidence, the
claimants set up a new plea that the deceased was offered the position of
Deputy Manager at an annual CTC of Rs.15,00,000/- per annum after
completion of BBA course. The claimants produced PW-2 who deposed that
his Company would have paid Rs.15,00,000/- per annum to the deceased
after completion of BBA course. However, PW-2 in his cross-examination,
could not produce any document even to show that he was paying
Rs.16,000/- per month to the deceased. Although the occupation as well as
the income of the deceased were not proved, the Claims Tribunal
surprisingly took the income of the deceased as Rs.15,00,000/- per annum,
deducted 50% towards future prospects, deducted 1/3 towards personal
expenses and applied the multiplier of 18 to compute the loss of dependency
as Rs.2,70,00,000/-. The Claims Tribunal further awarded Rs.1,00,000/-
towards loss of estate, Rs.1,00,000/- towards love and affection and
Rs.25,000/- towards funeral expenses. The Claims Tribunal awarded total
compensation of Rs.2,72,25,000/-.
3. Leaned counsel for the appellant urged the following submissions at
the time of hearing: -
3.1 Impugned award is perverse and contrary to the well settled principles
of the law, which have been deliberately violated by the Claims
Tribunal to award astronomical compensation of Rs. 2,72,25,000/-.
3.2 The deceased was a student of BBA and the Court should have taken
minimum wages of a graduate into consideration with respect to his
earning capacity.
3.3 The addition of future prospects is not warranted in the case of a
student.
3.4 The Claims Tribunal violated the well settled law by deducting 1/3
towards the personal expenses whereas the law with respect to the
deduction of personal expenses of unmarried person is well settled that
50% has to be deducted.
4. There is merit in the contentions urged by learned counsel for the
appellant which warranted serious consideration by the Claims Tribunal.
However, the Claims Tribunal neither considered the contentions urged by
the appellant nor gave any reasoned finding in respect thereof. This Court is
satisfied that the impugned award is perverse and contrary to the well settled
principles of law.
5. Learned counsel for respondents No.1 to 3 submits that the impugned
award be set aside and the matter be remanded back to the Claims Tribunal
with permission to claimants to lead the additional evidence with respect to
the documents filed along with CM No.2663/2018 under Order XLI Rule 27
of Code of Civil Procedure,1908.
6. This Court is of the view that the cases like the present one have
arisen because of the failure of the insurance companies to appoint an
investigator to verify the genuineness of the accident and a surveyor to
assess the loss. This practice is being regularly followed by the insurance
companies in all cases other than motor accident claims. However, in cases
of death and injuries arising out of the motor accident claims, the insurance
companies do not ordinarily appoint any investigator or surveyor and they
file the written statement to deny everything for want of knowledge except
the insurance policy. The result of such an approach is that the claimants
exaggerate their claims to any extent as it has happened in the present case.
If the insurance company, in the present case, had appointed the investigator
and surveyor immediately upon receiving the copy of DAR/claim
application, this situation would not have arisen. In the present case, the
insurance company is not even aware of the correct factual position which
they were duty bound to ascertain immediately upon getting the intimation
about the accident. Be that as it may, the insurance company is at liberty to
appoint an investigator/surveyor even at this stage and to lead additional
evidence before the Claims Tribunal. In MAC.APP.821/2017 titled Bajaj
Allianz General Insurance Co. Ltd. v. Devi Nandam Kumar, decided on 21st
February, 2018, this Court observed as under:
"This Court is of the view that the insurance companies are duty
bound to verify every claim by appointing an Investigator to verify the
genuineness of the claim as well as the material particulars of the
claim and a surveyor to assess the loss suffered by the victim. In cases
of grievous injuries, the insurance companies should also get the
injured examined by an independent medical expert to examine the
injured and verify the medical claim of the injured. However, the
appellant, in the present case, does not appear to have appointed any
Investigator or surveyor to verify and assess the claim of respondent
No.1."
7. For the reasons discussed hereinabove, the appeal is allowed,
impugned award is set aside and the case is remanded back to the Claims
Tribunal for fresh adjudication after recording the additional evidence of
respondent No.1 with respect to Annexure A to G filed along with the CM
No.2633/2018. The appellant is also permitted to lead additional evidence
before the Claims Tribunal. Pending applications are disposed of.
8. The parties shall appear before the Claims Tribunal on 02nd April,
2018 at 02:00 P.M. The Claims Tribunal shall consider all the contentions of
the appellant and pass a fresh award after recording the additional evidence
of the parties untrammeled by any finding recorded in the award dated 28th
July, 2017.
9. Considering the perversity in the impugned award, it is deemed
appropriate that copy of this judgment as well as the judgment dated 21st
February, 2018 in MAC.APP. 821/2017 be sent to Hon'ble the Acting Chief
Justice as well as the Inspecting Judges Committee of the Judicial Officer
for the year 2017.
10. The statutory amount as well as the amount deposited by the appellant
in terms of the order dated 08th September, 2017 be refunded back to the
appellant.
11. Copy of this judgment be given dasti to counsels for the parties under
signature of Court Master.
MARCH 07, 2018 J.R. MIDHA, J.
ak
