Delhi High Court
National Insurance Co Ltd. vs Vijay & Ors. on 11 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 11, 2018
+ MAC.APP. 46/2017 & C.M. 1647/2017
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. S.P. Jain, Ms. Amandeep,
Mr. Himanshu Gambhir &
Mr. Abhijit Chakrvarty, Advocates
Versus
VIJAY & ORS. ..... Respondents
Through: Mr. Ashok Aggarwal &
Mr. Kumar Akash, Advocates
+ MAC.APP. 47/2017 & C.M. 1669/2017
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. S.P. Jain, Ms. Amandeep,
Mr. Himanshu Gambhir &
Mr. Abhijit Chakrvarty, Advocates
Versus
MEGHA & ORS. ..... Respondents
Through: Mr. Ashok Aggarwal &
Mr. Kumar Akash, Advocates
+ MAC.APP. 51/2017 & C.M. 1740/2017 & 17176/2017
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. S.P. Jain, Ms. Amandeep,
Mr. Himanshu Gambhir &
Mr. Abhijit Chakrvarty, Advocates
MAC.APP. 46/2017 Page 1 of 11
MAC.APP. 47/2017
MAC.APP. 51/2017
MAC.APP. 66/2017
MAC.APP. 67/2017
Versus
VIJAY & ORS. ..... Respondents
Through: Mr. Ashok Aggarwal &
Mr. Kumar Akash, Advocates
+ MAC.APP. 66/2017 & C.M. 1915/2017
NATIONAL INSURANCE CO LTD. ..... Appellants
Through: Mr. S.P. Jain, Ms. Amandeep,
Mr. Himanshu Gambhir &
Mr. Abhijit Chakrvarty, Advocates
Versus
BHAWNA & ORS. ..... Respondents
Through: Mr. Ashok Aggarwal &
Mr. Kumar Akash, Advocates
+ MAC.APP. 67/2017 & C.M. 1920/2017
NATIONAL INSURANCE CO LTD. ..... Appellant
Through: Mr. S.P. Jain, Ms. Amandeep,
Mr. Himanshu Gambhir &
Mr. Abhijit Chakrvarty, Advocates
Versus
MASTER DEV & ORS. ..... Respondents
Through: Mr. Ashok Aggarwal &
Mr. Kumar Akash, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
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MAC.APP. 67/2017
1. The above captioned five appeals arise out of impugned Award of
21st November, 2016, vide which the Motor Accident Claims Tribunal
(henceforth referred to as the "Tribunal") has awarded compensation of
`19,52,512/-with interest @ 9% p.a. to legal heirs of deceased- Narmada,
a house wife, aged 32 years, in a vehicular accident which took place on
3rd February, 2014.
2. In this unfortunate accident in question, an auto driver- Vijay was
grievously injured and the Tribunal vide impugned Award has granted
compensation of `30,63,853/- with interest @ 9% p.a. to him, which is
under challenge in these appeals. In this accident, minor children- Megha,
Bhawna and Master Dev were also injured. Compensation of `45,420/-
has been granted by the Tribunal to Injured-Bhawna. Injured-Megha and
Master Dev have been granted compensation of `25,000/- each by the
Tribunal.
3. Since these five appeals arise out of one vehicular accident,
therefore, with the consent of learned counsel for the parties, these
appeals have been heard together and are being decided by this common
judgment.
4. The factual background of this case, as noticed in the impugned
Award, is as under:-
"At the outset it is pertinent to note in the present
case there is one deceased namely Smt. Narmada w/o
Vijay and four injured persons namely Vijay, S/o Mool
Chand, Dev S/o Vijay, Megha, D/o Vijay and Bhawna
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D/o Shri Sunil. As per the material on record the accident
in question occurred on 03.02.2014 at about 11:30 PM
near Jalebi Chowk, Sultanpuri, Nangloi Road, Delhi due
to rash and negligent driving of offending vehicle i.e. Car
Swift Dezire bearing registration no. HR-57-8581 which
was being so driven by its driver Shri Shyam Sharma S/o
Sh. Suresh Sharma which hit the TSR bearing registration
no. DL 1RL 8057 in which the above named deceased
and injured persons were travelling and the said accident
resulted into the death of deceased Smt. Narmada and
injuries on the persons of Shri Vijay, Dev, Megha and
Bhawna. The driver and owner of the offending vehicle
are ex-parte. They have not filed any reply to the DAR,
however, the insurance company has filed the reasoned
reply to DAR in which it is mentioned that Vehicle no.
HR-57-8581 was insured at the relevant time i.e. on
03.02.2014 through policy valid from 01.11.2013 to
31.10.2014 in the name of Mr. Rothas Kumar. It is
further mentioned in the said reply of the insurance
company that the said alleged offending vehicle was not
insured as private vehicle while the said vehicle was
registered as commercial vehicle and thus the insured
avoided the insurance premium for the commercial
category of the vehicle. Due to the accident in question
the FIR No.123/2014 was registered at Police Station
Sulatan Puri, Delhi under Section 279/337/338/304-A
IPC"
5. To render the impugned Award, the Tribunal has relied upon
evidence of Claimants/ legal heirs of deceased and other evidence on
record. On the strength of evidence so recorded, impugned Award has
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MAC.APP. 67/2017
been rendered.
6. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased-Narmada is as under:-
1. Loss of dependency `15,52,512/-
2. Loss of consortium `1,50,000/-
3. Loss of Love & Affection `1,50,000/-
4. Loss of estate ₹50,000/-
5. Funeral expenses `50,000/-
Total `19,52,512/-
7. The breakup of compensation awarded by the Tribunal to Injured-
Vijay is as under:-
1. Loss of Income including loss of `28,22,976/-
future income
2. Pain and suffering `1,00,000/-
3. Medical expenses `70,877/-
4. Loss of enjoyment of amenities of `40,000/-
life
5. Conveyance and special diet `30,000/-
Total `30,63,853/-
8. The breakup of compensation of ₹25,000 each awarded by the
Tribunal to Injured- Bhawna is as under:-
1. Pain and suffering `25,000/-
2. Medical expenses `420/-
3. Loss of enjoyment of amenities of `10,000/-
life
4. Conveyance and special diet `10,000/-
Total `45,420/-
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MAC.APP. 51/2017
MAC.APP. 66/2017
MAC.APP. 67/2017
9. The breakup of compensation of `25,000/- awarded by the
Tribunal to Injured- Megha & Dev is as under:-
1. Pain and suffering `10,000/-
2. Loss of enjoyment of amenities of `10,000/-
life
3. Conveyance and special diet `5,000/-
Total `25,000/-
10. Impugned Award grants recovery rights to appellant-Insurer while
taking note of difference between the premium payable in case of a
private car and a taxi and has concluded that the differential in the
premium is 11.5% and so, appellant-Insurer has been saddled with the
liability to pay 88.5% of the awarded compensation with a right to
recover the remaining 11.5% of the compensation from the owner and
driver of the insured vehicle. In the first instance, appellant-Insurer has
been directed by the Tribunal to pay the entire compensation payable and
then to recover 11.5% from the owner of the insured vehicle.
11. The challenge to the impugned Award by learned counsel for
appellant-Insurer is on the ground that in view of Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & ors. (2017) 16 SCC 680, in the case of deceased
Narmada, addition of 40% towards "future prospects" ought to be made.
It is also submitted that compensation granted under the „non-pecuniary
heads" needs to be brought in tune with Supreme Court's Constitution
Bench decision in Pranay Sethi (Supra).
12. In the case of Injured- Vijay, it is submitted by counsel for
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MAC.APP. 67/2017
appellant-Insurer that addition of 40% towards "future prospects" has to
be made and compensation under the "non-pecuniary heads" is to be
reduced in terms of Supreme Court's Constitution Bench decision in
Pranay Sethi (Supra). In the case of Injured-Bhawna, Megha and Master
Dev, it is submitted by counsel for appellant-Insurer that the
compensation granted to them needs to be reduced, as they had suffered
simple injuries only. Lastly, it is submitted by counsel for appellant-
Insurer that the insured vehicle was a private car, for which insurance
was taken but it was being illegally plied as taxi. It is pointed out that for
a taxi, higher premium is to be paid to get it insured and the driver as well
as owner of the insured vehicle have not come forward to contest before
the Tribunal or in these appeals. Thus, it is submitted that liability to pay
compensation is of the driver and owner of the insured vehicle and not of
the Insurer.
13. On the contrary, counsel for Claimants and Injured supports the
impugned Award and submits that the quantum of compensation granted
by the Tribunal is just and proper and no case for reduction of
compensation is made out. Nothing else is urged by either side.
14. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that in the case of deceased-Narmada
and Injured- Vijay, the Tribunal has erred in making addition of 50%
towards "future prospects". In view of Supreme Court's Constitution
Bench decision in Pranay Sethi (Supra), addition of 40% towards "future
prospects" has to be made. Thus, in the case of deceased -Narmada, the
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MAC.APP. 67/2017
"loss of dependency" is re-assessed as under:-
`8,086/- X 12 X 140/100 X 16 X 2/3 = `14,49,011/-
15. In the case of Injured-Vijay, the "loss of earning capacity" is re-
assessed as under:-
`9,802/- X 12 X 140/100 X 16 = `26,34,777/-
16. The compensation granted by the Tribunal under the „non
pecuniary heads‟ needs to be brought in tune with Supreme Court's
Constitution Bench decision in Pranay Sethi (supra). Accordingly,
compensation granted by the Tribunal to legal heirs of deceased-
Narmada under the head of „loss of love & affection‟ is disallowed. The
„funeral expenses‟ are reduced from `50,000/- to `15,000/-. Similarly,
compensation granted under the head „loss of estate‟ is reduced from
`50,000/- to `15,000/- and compensation granted under the head „loss of
consortium‟ is also reduced from `1,50,000/- to `40,000/-.
Consequentially, the compensation payable to legal heirs/ Claimants of
deceased-Narmada is re-assessed as under:-
1. Loss of dependency `14,49,011/-
2. Loss of consortium `40,000/-
4. Loss of estate `15,000/-
5. Funeral expenses `15,000/-
Total `15,19,011/-
17. Considering that Injured- Vijay was aged 35 years on the day of
accident and was a professional driver and the permanent physical
disability suffered by him is 100% and he is on wheel chair, I find that the
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compensation of `1,00,000/- granted to him by the Tribunal under the
head of "pain and suffering" is justified. Even the "Medical Expenses"
of ₹70,877/- granted by the Tribunal and compensation of `40,000/-
granted under the head of "loss of enjoyment of amenities of life" and
`30,000/- under the head "Conveyance and special diet" are amply
justified. Resultantly, the compensation payable to Injured-Vijay is re-
assessed as under:-
1. Loss of earning capacity `26,34,777/-
2. Pain and suffering `1,00,000/-
3. Medical expenses `70,877/-
4. Loss of enjoyment of amenities of `40,000/-
life
5. Conveyance and special diet `30,000/-
Total `28,75,654/-
18. As regards compensation granted by the Tribunal to Injured-
Bhawna, Megha and Master Dev is concerned, I find that the
compensation granted to them is just and proper and no case for reduction
in the quantum of compensation granted to them is made out.
19. On the liability aspect, I find that driver and owner of the insured
vehicle were ex parte before the Tribunal and are unrepresented in these
appeals, despite service. No evidence has been led by them. It is a matter
of record that the premium was paid for obtaining insurance policy of a
private vehicle but the insured vehicle was being used for commercial
purpose i.e. plying as taxi. The differential in the premium for a private
vehicle and taxi may not be substantial but I find that Insurer's witness
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(R3W1) in his evidence has categorically asserted that the insured vehicle
in question was registered as a commercial vehicle. Thus, it becomes
quite evident that the owner of the insured vehicle had concealed the
material facts i.e. of insured car being plied as a taxi, though it was
insured as a private car.
20. In the considered opinion of this Court, concealment of material
facts by owner of the insured vehicle attracts the provisions of Section
149 of the Motor Vehicles Act, 1988. The expression "liability covered by
the terms of the policy" as referred to in Sub-Section 6 of Section 149 of
Motor Vehicles Act, 1988, gives a discretion to determine as to what is
the extent of liability covered. I am of considered opinion that the
Tribunal has rightly concluded that the proportionate liability of
appellant-Insurer would be 88.5% of the total amount of compensation
payable, in the light of premium charged, while insuring the car in
question as a private car. Recovery rights in respect of 11.5% of the total
compensation have been rightly granted to appellant-Insurer. The
violation of terms and conditions of insurance policy in the instant case is
not such, which would entitle the Insurer to avoid the insurance policy.
Thus, I find that the Tribunal has rightly determined the liability aspect
and impugned Award on this aspect, is therefore maintained.
21. In the light of aforesaid, the compensation payable to legal heirs of
deceased-Narmada is reduced from `19,52,512/- to `15,19,011/- and
compensation payable to Injured-Vijay is also reduced from `30,63,853/-
to `28,75,654/-, which shall carry interest @9% per annum. The
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compensation be released to the legal heirs of deceased- Narmada and
Injured- Vijay, Bhawna, Megha and Master Dev in terms of this judgment
but in the manner as indicated by the Tribunal in the impugned Award.
Excess deposit alongwith statutory deposit be refunded to appellant-
Insurer.
22. The impugned Award is modified to the aforesaid extent. The
above captioned five appeals and the applications are accordingly
disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 11, 2018
r
MAC.APP. 47/2017
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MAC.APP. 67/2017
