Icici Lombard General Insurance Co Ltd v. Suman Arora & Ors

JUDGMENT R.K.GAUBA, J rORALL For detailed judgment, the decision dated

16.03.2016 in MAC.APP. 888/2010 may be referred to. MARCH 16, 2016 VLD (JUDGE) . • * IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofDecision:16"' March, 2016 + MAC.APP. 888/2010 SUMAN ARORA & ORS • Appellants Through: Mr. S N Parashar, Adv. versus SAJJAN SINGH &,©RS, 1,1 T' t , Respondents Through;-' " Mr. KT Singh Chauhan, Adv. for R-2 ; t Ms. Suman Haggar-and Mr. Pankaj r A •; P • •GupthfAdvs.Ibrdhsurance/R-B + MAC.APP.6l'3/2011& CM;Nos>13L54/2Q1L13137/2011 ICICI LOMBARD GENERAL INSURANCE CO LTD . Appellant Through: 1;/Ms. rSunian Bagga and Mr. Pankaj GhipfajAdv^ - .p'"* •••'iP^ersus' •• . . V ' • jv" SUMANARORA& ORS .. Respondents Through: Ivlr. S N Parashar,Adv. for R-I Mr. K P Singh Chauhan, Adv. for R-4 + MAC.APP. 209/2013 VINAYKUMAR Appellant Through: Mr. K PSinghChauhan,Adv. versus SUMANARORAAND ORS MAC.APP. No.8S8''20/()& conn. Respondents Page / of 7 Through: Mr. S N Parashar, Adv. for R-1 Ms. Suman Bagga and Mr. Panlcaj Gupta, Advs. for insurance CORAM: HON'BLE MR. JUSTICE R.K.GAUBA JUDGMENT R.K.GAUBA, J (ORAL):

¶1Mr. Rajesh Arora, then 37 years old, a practicing advocate, suffered injuries in a motor vehicular accideiltthaf occurred on 10.08.2009 when the car bearingregistrationNo.DL90-0 8876 (the car) in'whichhe was traveling was involvedin a cdilisionagainstfruclUtrailerbearingregistrationNo.HR 61 5896 (the offending'vehicle)jat aboufT.3P PM in the area of Nilokheri bridge on G T Rarrial Road, and.diedunjthe consequence! His widow and minor child (appellants in MAC.APP.Np.888/2010), hereinafter referred.to as the claimants, brought a claim petition'.under Sections 166 and 140 of Motor Vehicles Act, 19,8!8.(My Act) before the .motor accident claims tribunal (tribunal) which'registered it as suit No.344/2:009. The claimants impleaded Sajjan Singh(and/ryinayi/Rumar;-( driver and the owner respectivelyof the offending"vehicle):'as .first and second respondents,in addition to. ICICI Lombard General InsuranceCompany Ltd. (appellantin IVIAC.APP.653/2011).The motherofthe deceasedwas impleadedas fourth respondent(performaparty)on the pleathat she was also adependenton the deceasedand thus entitledto compensation.

¶2The tiibunals record shows that both the driver and owner of the offendingvehicle,thoughduly seiwed,chosenot to appearand thus were set ^pcnte. .fhe othertwo respondentsin the claimproceedings,includingthe ex MAC.APp. No.888/20!0 ct' conn Page 2 of? insurer, appeared and filed written statements. During the course of the inquiiy, the insurer took up the defenee that there had been a breach of the terms and conditions of the insurance poliey as the driver of the offending vehiele was not holding a valid or effective driving license.

¶3The tribunal, on the basis of evidence led, found that the accident had occurred due to rash/negligentdriving of the offendingvehicle by its driver (Sajjan Singh) an on such basis awarded compensation in the sum of ^11,62,600/- which includes TIT,32,60.0/- towards loss of financial dependency, ?10,000/-each towards.Idss of Ipve fc,affection and loss of consortium and ^5,000/^,each towards funeral ex|3ens,ea-:andloss to estate. It awarded the said compensationwith interesfat 7.5%,per hnnum from the date of filing of,the petition (10.09;2009)tilf realization.

¶4The plea ,of the insurancecompany that it was not liable to pay the compensationsince the driver pt/tlier.pffe vehicle was(hot holding a valid or effective'driving4icdneeiwa§:U|)fe ofevidenceofits witness R3W1 on 'theistrdn|th^.of his affidavit.(Ex;R|^1/A),inter alia, proving that the insuraheecompdny;;"h;adrissuedah a notice under Order 12 Rule 8 ofthe Code ofCivil"ProeedUre,1908 (CPC) on the owner and driver calling them upon to produce, inter alia, the original driving licence in spite of which there had been no response. The tribunal, thus, foundthatacase had beenmade out to grantrecoveryrightsto the insurance companywhich otherwisewas directedto specif)^the award,the owner and driverofthe offendingvehiclehavingbeen heldjointlyand severallyliable to pay the compensation.Noticeably,in the operativepart ofthe impugned MAC.APP.No.888/2010<& conn. i judgment passed by the tribunal on 18.09.2010, there was no clear direction with regard to the recovery rights.

¶5The claimants filed appeal (MAC.APP.No.888/2010)contending that - the compensation awarded is inadequate. Primarily, two issues have been raised; first, that the income as reflected in the income tax return (ITR) for the assessment year 2008-09 (Ex.PWl/B) was not considered and instead a lower income taken into account; and second, that the awards under the non-pecuniary heads of damages are paltry: v.

¶6The insurance.horapahy/'by fitsappeal'(jyiAG.APP.No.653/2011) raised a number of iissues; BufiatThetfidarihg, it subinitted;through counsel that the only conc'erhribbe addresseddk-th^^ direcfion'aboutrecovery ^ • rightsmay be granted. -

¶7The owner of the ofibnding.{vfeljidle (Vinay Kumar)? had moved applicationunder Order 9,Rulel3..ii??POfie the tribunalin the courseof executionproceedmgsmnABA llTOTlveohfehding'M had been served on him before'sbie:wasset'm.p?fl;:-/e,nlso pleadirig^thathis son though having received the sumifion|:;had4JK3r;gdtteh?to communicate. The said application,however,was allowedto be withdrawnby the tribunalby order dated 23.01.2013passedin miscellaneouscase No.7/12with libertygranted to file an independentappeal. In wake ofthe said proceedings,he filed an appeal (MAC.APP.No.209/2013),mainly to contendthat the driver held a valid'and effective driving license and, thereforethere was no breach of terms and conditions of the insurance policy. Per contra, the learned counsel for the insurersubmittedthat the drivinglicense,the photocopyof which has been submitted by the owner (Vinay Kumar), appears to be a •^'ly^C.APP. No.88S,-20I0A conn Page 4 of? ,1 ' ;i T • ! - '' ;• IS: L, r •• i;' til fell Intp;//! V2.100. J0.159/litml/deit;ci--iiiinVr)nn~-.i forged and fabricateddocument,not valid for the purposesofthe offending vehicle. In response, . the learned counsel for the appellant (MAC.APP.No.209/2013)(Vinay Kumar) submittedthat he has verifiedthe document and there is no doubt that it is genuine and, therefore, on its strength it is being submitted that the driver held a valid and effective diivinglicenseand therewas no breach. On beingasked,he statedthathe is leadyto face an inquiryand in case the documentis found to be not correct, he is ready,to face criminalprosecution. 8; The contentionof?the claiipantsafeut;epor'im,calculationof loss of dependency is coirebt, liid IT^ .(JExiPWl/B)clearlK^flectedthat the I income from prpfe^stoli was assumptionofthfe teiBunalthattfieji^pfri|.v^^^^kl3,259Aperannum is not coriect. The calculation,thus, has tfrbdhiade afresh. Afterdeducting1/3"' towardspersonal&livingexpens©|fMe;taTfannualdependicycomesto (1,19,706X2-3;| multiplierof 15, and lightly so, given th|^^t;,tha|W w^^hg^I^JyJears. Thus, the totalloss ofdependenCy.Jkcalculalfe xl5|ill,97,060/-. ^he view takenInT^q/e.y/i Ors. v. RajbirSingh &Ors., 013)9see 54 andShashikalaV. Gangalakshmamma(2015)9see 150 compensationin the sum the sum of laldi each on account of love & a eohon and loss of consortiumand ©5,000/-eafih towards loss ofestate anc fitneralexpenseare added. Thus,the totai compensationpayabiein the TuilZr'^'" ^'4.47,060/-rounded off to MAC.APP. N0.888/2OIO&cor. conn. Pages of7 \

¶10It is noted that the tribunal had awarded the rate of interest at 7.5% per annum. Following the consistent view taken by this Court [see judgment dated

22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.], the rate of interest is increased to 9% per annum from the date of filing of the petition till realization.

¶11The tribunal had apportioned the award amongst the three dependents by specifying the amounts payable to each of them. In the facts and circumstances, it is directed that, the entire, enhanced portion, including the effect of the increase in the rate of interest,;shalf be payable to the first claimant (widow) Suman Afora only. /

¶12The learned counsel for thednSurdnCe company fairly concedes that an opportunity deserves to be granted tothe Owner(Vinay Kumar) to prove the existence of valid and effective drivhig; license for the offending vehicle for the periodin question..Therefore,,this,issueis remittedfor furtherinquiryto the tribunal. It is. made'clear thaf it;shall primarily,be the burden of the owner Vinay Kumar to,proyeAhe fact that there waq.a ytilid and effective driving license held by the/driveMf the pfpn for the period in question. Needless to add, the insurance company will be entitled to cross-examine the witnesses proved in support of such claim and also be entitled to lead evidencein rebuttal. The evidencealreadyled by the insurerduring• earlierinquiiybeforethe tribunalshallalso be consideredby the tribunal. In the eventofthe tribunalreachingafindingthat avalidand effectivedriving licensewas held by the driver, the obseiwationin the impugnedjudgment that the insurerwill have recoveryrightsshallstandvacated; Conversely,if MAC.APP. NO.8S8/20I0 conn Page 6 of? the owner (VinayKumar) fails to prove the facts arguedby him, the insurer shail be gi'anted recovery rights.

¶13It may be added that in the event of it being found that the driving license relied upon by the owner (Vinay Kumar) is not genuine or is fabricated,the tribunal shall be duty bound to considerthe expediencyof initiating criminal action against him.

¶14The insurer is directed to deposit the effect of the increase in the compensation and rate of dritdrest.'AvitK The' tribunal within 30 days whereupon it shall be released to the claimant: •

¶15The parties arcsdirected to. appear peforethe tribtmal on 18.04.2016.

¶16Statutorydeposit,ifmade;T|t^l||p;ref^ f

¶17The appeal stands disposedofyeitr'af ove terms. )' MARCH 16, 2016 VLD MAC.App. No.888/2OK) & conn. dEl.fo'GAHS /'(JUDGE)

IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofDecision:16"' March, 2016 + MAC.APP. 653/2011 & CM Nos.l3I34/201L 13137/2011 ICICI LOMBARD GENERAL INSURANCE CO LTD Appellant Through: Ms. Suman Bagga and Mr. Panlcaj Gupta, Advs. versus SUMAN ARORA & ORS . . Respondents Tk'dugh: 'Mr. S N Parashar, Adv. for R-1 " Mr. K P Singh Chauhan, Adv. for R-4 MAC.APP. 209/2013 VINAY YJJMAR Through; versus SUMAN ARORA AND ORS Through •Appellant Mr. K P Singh Chauhan, Adv. Respondents Mr." S N Parashar, Adv. for R-1 Ms, Suman _Bagga and Mr. Panlraj Gupta, Advs/Tor insurance CORAM: HON'BLEMR. JUSTICERTCGAuIiA