Punjab-Haryana High Court
Reliance General Insurance Company ... vs Leepika And Others on 31 January, 2025
FAO Nos. 553 and 1620 of 2022 (O&M) Page 1 of 14
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
113
Date of decision: 31.01.2025
1. FAO-553-2022 (O&M)
Reliance General Insurance Company Limited ...Appellant(s)
Vs.
Leepika and others ...Respondent(s)
AND
2. FAO-1620-2022 (O&M)
Leepika and others ...Appellant(s)
Vs.
Anil and others ....Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Sachin Ohri, Advocate for the appellant-Insurance Co.
Mr. Sandeep Kumar Yadav, Advocate for
respondents No. 1 to 4-claimants.
Mr. Chanderhas Yadav, Advocate and
Mr. Aman Singh, Advocate for
respondents No. 5 and 7.
***
NIDHI GUPTA, J.
FAO-553-2022:
The present FAO-553-2022 has been filed by the Insurance
Company seeking modification and absolving of the appellant from the
liability imposed upon it for the payment of compensation of Rs.
29,05,600/- granted to the claimants/respondents No. 1 to 4 herein, vide
Award dated 16.12.2021 passed by ld. Motor Accident Claims Tribunal,
Narnaul (hereinafter referred to as "the Tribunal") in claim petition No.
158 dated 17.09.2019 filed under Section 166/140 of the Motor Vehicles
Act (hereinafter referred to as "the Act"). The 4 claimants are the 2
minor daughters and the parents of the deceased Sonu Kumar @ Sonu,
who is stated to have been about 28 years of age at the time of accident.
FAO-1620-2022:
The present FAO-1620-2022 has been filed by the claimants
seeking enhancement of compensation of Rs.29,05,600/- awarded by
the Tribunal, vide Award dated 16.12.2021 passed in MACT Case No. 158
dated 17.09.2019 filed under Section 166/140 of the Act. The 4
claimants are the two minor daughters and parents of the deceased
Sonu Kumar @ Sonu, who was stated to have been about 28 years old at
the time of accident. The above said compensation was granted by the
learned Tribunal alongwith interest @ 9% per annum from the date of
institution of claim petition till realization.
2. Both the above said appeals are being disposed of by this
common order as both appeals relate to the same accident, between
same parties, and challenge in both the claim petitions is to the Award
dated 16.12.2021 passed by the learned MACT, Narnaul.
3. For the sake of facility, facts are being drawn from FAO-553-
2022 filed by the Insurance Company.
4. Brief facts of the case are that the learned Tribunal upon
appraisal of the pleadings, and the oral and documentary evidence
adduced by the parties, concluded that deceased-Sonu Kumar had died
due to the injuries suffered by him in a motor vehicular accident that
took place on 10.06.2019 due to the rash and negligent driving of Swift
Dzire Car bearing registration No. DL7CK-8615 (hereinafter referred to as
'the offending vehicle'), which was being driven by respondent No. 5;
owned by respondent No.6; and insured by the appellant. An FIR No.
175 dated 10.06.2019 (Ex.P12), under Sections 279, 304A IPC was
registered at Police Station Khol in respect of the present accident.
5. Learned counsel for the appellant-Insurance Company seeks
modification of the Award and the absolving of the appellant-Insurance
Company from the liability of payment of compensation to the
claimants, on the ground that there was misrepresentation on the part
of the insured in getting the Insurance Policy. Learned counsel submits
that the offending vehicle was previously insured with New India
Assurance Co. Ltd. from 09.06.2018 to 08.06.2019 vide Insurance Policy
(Ex.R7). It is submitted that on the basis of the said Policy, the appellant-
Insurance Company issued the current Policy (Ex.R2), for the period
09.06.2019 to 08.06.2020. Learned Counsel contends that however, it
was subsequently discovered by the appellant that the previous policy
(Ex.R7) which was allegedly issued by New India Assurance Co. Ltd. in
respect of the offending vehicle, was fake. Thus, the present policy
(Ex.R2) was obtained by the insured on the basis of misrepresentation
regarding the previous Policy (Ex.R7). It is only upon receiving
information under RTI that the appellant discovered that the Policy
allegedly issued by New India Assurance Co. Ltd. (Ex.R7) was a fake
Policy. It is submitted that the insured deliberately misled and
misrepresented to the appellant with the explicit purpose of avoiding
pre-inspection of offending vehicle, which is required in case the vehicle
is not previously insured with any Insurance Company. It is argued that
as such, the present Policy (Ex.R2) was issued without conducting the
pre-inspection of the offending vehicle as it was issued in continuity of
the previous Policy - which is fake. It is pointed out that as per the
underwriting guidelines of the Company and Regulations of IRDA, pre-
inspection of the vehicle is mandatory before issuing Policy in case
vehicle is not insured with any other Company. In the present case, due
to the existence of the previous Policy (Ex.R7), pre-inspection was not
done and present Policy (Ex.R2) was issued in continuity. It is contended
that accordingly, the insured had obtained the present Policy (Ex.R2)
upon misrepresentation of facts; and therefore, the appellant is not
liable to pay the impugned compensation.
6. In support of his contentions, Learned counsel for the
appellant-Insurance Company relies upon judgment of Coordinate Bench
of this Court passed in 'Rajveer Singh Gurjar vs. Veer Singh' Law Finder
Doc Id # 1117238, wherein it is held that if specific defence is taken by
Insurance Company that contract of insurance was void ab initio, and
forged insurance certificate is produced by insured to show that vehicle
was earlier insured by New India Insurance Company, then No sum is
payable by insurer where representation of facts was false.
7. Learned counsel for the appellant also places reliance upon
the judgment of Coordinate Bench in 'Munshi Ram and another vs.
Balkar Singh and others' Law Finder Doc Id # 763962, wherein it is held
that response received through RTI is of a public officer and it is a public
document and would require no further corroboration in the manner
contemplated under Section 77 of the Evidence Act; and that such a
Document must be taken to be true of what its recital states.
8. Ld. counsel for the appellant also relies upon a Division Bench
judgment of the Kerala High Court in 'Siby Paul vs. Praveen Kumar G.N.
and others' 2010(5)RCR (Civil) 143, wherein it is held that if wearing of
helmet could have prevented the death or injury or reduce the impact of
accident, MACT can attribute contributory negligence on the part of the
rider and can reduce the compensation amount.
9. It is further submitted that the impugned Award deserves to
be set aside also on the ground that it has undisputedly come on record
that the deceased was not wearing a helmet at the time of accident. The
cause of death in the present case is a head injury as is evident from the
Post Mortem Report (Ex.P-13). These facts are also evident from the
Motor Accident Reconstruction Report (Annexure A-7). It is contended
that as such, there was contributory negligence on the part of the
deceased. However, this aspect of the matter was not considered by the
learned Tribunal while passing the impugned Award.
10. It is thirdly contended by the appellant-Insurance Company
that the father of the deceased/claimant No.4/respondent No.4 herein,
was not entitled to compensation as he was a pensioner. He was not
dependent on the deceased and therefore, deduction of 1/3rd ought to
have been made by the ld. Tribunal towards the personal expenses of
the deceased; whereas deduction of 1/4th has been made. It is prayed
that accordingly, the appellant be absolved and the insured be directed
to make the payment of the compensation awarded by the learned
Tribunal.
11. Per contra, learned counsel for the claimants opposes the
prayer made on behalf of the appellant-Insurance Company and
contends that the Policy in question is valid. The Insurance Company
cannot absolve itself of its liability for the reason that it was the duty of
the Insurance Company to check whether the previous Policy if any,
produced by the insured, is fake or not.
12. Learned counsel for the claimants further contends that no
reliance can be placed upon the above mentioned Motor Accident
Reconstruction Report (Annexure A-7), as the person who had allegedly
prepared the said Report has not been examined, and merely the Report
has been placed on record. The said Report is therefore, not proven in
accordance with law. In this regard, ld. counsel for the claimants places
reliance upon judgment passed by a Coordinate Bench of this Court in
'Bhup Singh and others vs. Mainpal and others' Law Finder Doc Id #
1583533, wherein it is held that merely because deceased was not
wearing helmet at time of accident, it cannot be held that they
contributed towards accident; and that Breach of rules in driving two
wheeler without helmet by itself cannot be treated as composite or
contribution to negligence on their part.
13. As regards the third contention regarding the claimant
No.4/father of the deceased being pensioner, learned counsel for the
claimants contends that no such ground has been raised by the
appellant in its written statement before the ld. Tribunal and even no
evidence has been led in this regard by the appellant; therefore, there is
no proof on record to established that the father of the deceased was
the pensioner.
14. It is further submitted that the claimants are entitled to
enhancement of compensation as nothing has been granted to them by
way of filial and parental consortium. It is accordingly prayed that the
compensation amount be enhanced.
15. No other argument is raised on behalf of the parties.
16. I have heard learned counsel for the parties and perused the
case file in great detail.
17. It has firstly been contended on part of the appellant-
insurance Company that the appellant is not liable to pay the
compensation amount as the present Insurance Policy (Ex.R2) was
obtained by the insured on the basis of the misrepresentation of facts in-
as-much as the previous Policy (Ex.R7) on the basis of which the present
Policy (Ex.R2) was issued, was fake. I find no merit in the said contention
of the appellant as, before issuing the present Policy (Ex.R2) the onus was
upon the appellant to verify the information provided by the insured.
Admittedly, this was not done by the appellant. In fact, no action
whatsoever was taken by the appellant for more than two years. In the
present case, the date of accident is 10.06.2019; whereas RTI
application/Ex.R4 was made by the appellant more than 2 years thereafter
on 11.10.2021; in respect of which reply dated 22.10.2021 (Annexure A-
4)/Ex.R5, was received. Thus, the information provided by the insured was
taken at face value by the appellant, and no action was taken by the
appellant. Even no FIR in this matter was lodged by the appellant till
26.10.2021. From the above facts it would appear that due diligence was
not carried out by the appellant-Insurance Company prior to issuance of
the present Policy (Ex.R2). Thus, the plea of fake policy cannot now be
taken by the appellant at this belated stage to absolve itself of its liability
in making payment of the compensation amount as it is established from
the facts noted above that it was the appellant-Insurance Company that
was not vigilant and had not exercised due diligence prior to issuance of
the present policy (Ex.R2). Even otherwise accident has taken place within
validity of current policy Ex.R-7 and not the previous one, therefore,
appellant insurance company cannot escape from his liability.
18. It is pertinent to mention here that neither any witness from
previous insurer was got examined by appellant insurance company. Thus,
current policy issued by appellant is genuine and inspection was the duty
of the appellant only and it was the duty of the appellant to check validity
of previous policy prior to issuance of current policy. It is also pertinent
that the Claim petition was filed on 17.09.2019 and no complaint for fake
document has been filed by appellant insurance company against owner
of the vehicle upto 28.10.2021. It is just before passing of the Award that
complaint (Annexure A-5) was filed whereas same was not placed on
record before Tribunal, therefore, same cannot read into evidence at this
stage.
19. Further, even the information supplied under RTI vide reply
dated 22.10.2021 as per which the previous Policy was stated to be fake,
cannot be relied upon as no employee of New India Assurance Co. Ltd.
was summoned by the appellant to prove the said Report and establish
that the previous policy (Ex.R7) was fake. As such, mere receipt of
information under RTI would by itself not prove that the Policy (Ex.R7) is
fake. Moreover, even as per the reply dated 22.10.2021 (Annexure
A-4)/Ex.R5, received from New India Assurance Co. Ltd., all that has been
stated is that "the system is showing NIL details for the same." and that
"the system is showing NO RESULTS" ......... "So, it seems the policy
attached with RTI application is a FAKE POLICY." It is my considered view
that no definite information has been given even by the New India
Assurance Co. Ltd. certifying unequivocally that the policy in
question/Ex.R7, was fake. All that has been stated is that 'it seems' that
the Policy is fake as the system was not showing any details in respect of
the previous policy.
20. I am also in agreement with the reasoning of the learned
Tribunal that in not summoning the employee of New India Assurance Co.
Ltd., valuable right of cross-examining the said employee has been denied
to the insured. As regards the reliance placed upon by learned counsel for
the appellant in Munshi Ram and another's case (supra) holding that
information received through RTI is of a public officer and it is a public
document and would not require further corroboration, the same is
distinguishable as the said ruling was made in regard to the driving licence
of the driver therein; whereas in the present case RTI information has
been received in respect of the Insurance Policy which was required to be
proven in accordance with law.
21. It is also pertinent that the current policy was issued on
09.06.2019 i.e. one day prior to the accident. Had the said Policy (Ex.R2)
been issued even a few hours after the accident, the intent of the insured,
and the veracity of the said Policy could have been put under shadow of
doubt. However, in the present case, the Policy (Ex.R2) was issued prior to
the accident and was therefore, valid Policy. For this reason as well, the
veracity of the current policy cannot be doubted and no mala fide intent
can be attributed to the insured.
22. Further, in contending that the deceased was liable for
contributory negligence as he was not wearing helmet at the time of
accident, learned counsel for the appellant has relied upon a Motor
Accident Reconstruction Report dated 28.8.2020 (Annexure A-7).
However, admittedly, the person(s) who had allegedly prepared the said
Report have not been examined, and merely the Report has been placed
on record before this Court. In fact, it appears from the record that the
said Report was not even exhibited by the appellant before the learned
Tribunal. The said Report is therefore, not just not proven in accordance
with law, but is unreliable. Even further, the ld. Tribunal in para no. 15 of
the Award has clearly held that no such question has been put to any of
the witnesses PW-1 father of deceased, PW-2 Sanjay Eyewitness. Even
otherwise Insurance company has not led any evidence that not wearing
helmet was a cause of accident. For not wearing helmet, there is a penalty
under the Act where person can be challaned but Insurance company
cannot escape from his liability.
23. As regards the contention of the appellant that the father of
the deceased was a pensioner. Admittedly, no such plea was raised by the
appellant in its written statement before the learned Tribunal; and,
therefore, the said plea cannot be raised at this stage. Moreover, no
evidence whatsoever has been brought to the notice of this Court by the
learned counsel for the appellant to indicate whether the father of the
deceased was a pensioner or not.
24. For the aforesaid reasons, the FAO-553-2022 filed by the
Insurance Company titled as 'Reliance General Insurance Company vs.
Leepika and others' is dismissed.
25. As regards the prayer of the claimants in the cross-appeal
bearing FAO no.1620 of 2022 seeking enhancement of the awarded
compensation on the singular ground that nothing has been granted to
the claimants by way of consortium, the said argument is factually
incorrect. A perusal of the record of the case shows that the learned
Tribunal upon appraisal of the pleadings, as also the evidence led before
it, awarded just and fair compensation in the following manner:
26. The age of the deceased was taken to be 28 years at the time
of accident. Although it was a pleaded case before the learned Tribunal
that the deceased was earning Rs. 20,000/- p.m. by working as
shopkeeper/driver and doing agriculture and dairy farming work,
however, no evidence was led by the claimants to support the said
averments. Accordingly, learned Tribunal had assessed the income of the
deceased to be Rs.13,000/-p.m. as that of the daily labourer. The annual
income of the deceased was assessed to be Rs. 13000X12=Rs.1,56,000.
As there were 4 claimants/dependants, deduction of 1/4th was correctly
made from his income; thus, taking his annual income to be Rs.1,17,000.
As the deceased was 28 years, multiplier of 17 was applied; and total loss
of dependency suffered by the claimants was worked out to
Rs.1,17,000X17=Rs.19,89,000/-. As the deceased was 28 years of age,
addition of 40% i.e. Rs.7,95,600/- was correctly made towards future
prospects. Furthermore, a sum of Rs.16,500/- was granted towards loss of
estate and a sum of Rs.16,500/- was granted towards funeral expenses.
The record further bears out that it is factually incorrect for the claimants
to state that nothing has been granted by way of consortium as a sum of
Rs.44,000/- each has been granted to the claimants No. 3 and 4 i.e. the
parents of the deceased by way of filial consortium. The total
compensation under various heads is tabulated as under:-
Loss of dependency: Rs.19,89,000/-
Loss of future prospects: Rs.7,95,600/-
Loss of estate: Rs.16,500/-
Funeral expenses: Rs.16,500/-
Loss of Filial Consortium: Rs.44,000/- (to petitioner no.3)
Loss of Filial Consortium: Rs.44,000/- (to petitioner no.4)
27. The total above said compensation was granted alongwith
interest @ 9% per annum from the date of institution of petition till its
realization. The appellant-Insurance Company and respondents No. 5 and
6 driver and owner respectively were held jointly and severally liable to
pay the above said compensation.
28. As per recent judgments of the Hon'ble Supreme Court in
"Shri Ram General Insurance Co. Ltd. Vs. Bhagat Singh Rawat & Others"
Civil Appeal Nos.2410-2412/2023 and "Mehmooda Bee & Others Vs.
National Insurance Co. Ltd." (@ SLP (C) No.16767 of 2022) and "Bebi Giri
Vs. National Insurance Co. Ltd." Civil Appeal No.6551 of 2022, it has been
held that total sum of Rs.77,000/- only can be granted under the
conventional heads.
29. No case law to the contrary has been cited by learned
counsel for the claimants.
30. Learned counsel for the appellant as well as learned counsel
for the claimants are unable to controvert or dispute the above said facts,
findings and/or the legal position as noted above.
31. In view of the above, both the appeals stand dismissed.
32. Pending application(s) if any also stand(s) disposed of.
31.01.2025 (NIDHI GUPTA)
Divyanshi JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
