Reliance General Insurance Co Ltd v. Suresh & Ors

JUDGMENT G. P. MITTAL, J. (ORAL)

¶1The present Appeal is dismissed in terms of the judgment passed today in MAC.APP.672/2011 titled 'RELIANCE GENERAL INSURANCE CO. LTD. v.JYOTI&ORS.'

¶2For detailed order, please see the above mentioned judgment. (G.P. MITTAL) JUDGE DECEMBER 12, 2012 pst $ 3,4, 12, 13 & 42 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofdecision: 12"^ December,2012 + MAC. APP. 672/2011 RELIANCE GENERAL INSURANCE CO. LTD Appellant Through: Mr. Sameer Nandwani, Advocate. Versus JYOTI&ORS. Respondents Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates for Respondent No. 1; + MAC. APP. 673/2011 RELIANCE GENERAL INSURANCE CO. LTD Appellant Tlirough: Mr. ,SameerNandwani, Advocate. Versus NISHAR AHMED & ORS. Respondents Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates for Respondent No.l • &2. I-MAC. APP. 674/2011 RELIANCE GENERAL INSURANCE CO. LTD. Appellant Through: Mr. Sameer Nandwani, Advocate. Versus SITA & ORS. Respondents Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates for Respondent No. 1. MAC. APP. Nos.672/201 I, 673/2011. 674/7.01 I, 676/201 1 &22I/20I2 Pae.e 1 or7 H MAC. APP. 676/2011 RELIANCE GENERAL INSURANCE CO. LTD Appellant Through: Mr. Sameer Nandwani, Advocate. Versus SURESH & ORS. Respondents Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates for Respondent No. 1 &2. + MAC. APP. 221/2012 SURESH & ORS. Appellants Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates Versus RELIANCE GENERAL INSURANCE CO. LTD Respondents Through: Mr. Sameer Nandwani, Advocate CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT G. P. MITTAL, J. (ORAL)

¶1These five Appeals arise out of a common judgment dated 18.03:2011 passed by the Motor Accident Claims Tribunal(the Claims Tribunal) whereby a compensation as tabulated hereunder was awarded by the MAC. APP.Nos,672/2011,673/2011,674/2011,676/2011 &22I/20I2 Page2 of? n Claims Tribunal:- s. Petition No. MAC.APP.No. Name of the Amount of No. Injured/Claimant Compensation

¶1142/2010 672/2011 Jyoti ?20,000/-

¶2111/2010 673/2011 Nishar Ahmed and Anwari ?7,69,416/-

¶3121/2010 674/2011 Sita ? 1,40,000/-

¶4137/2010 676/2011 Suresh and Ram Naresh ?1,37,228/-

¶5221/2012 (Cross Objection of 676/2011) Suresh and Ram Naresh The amount of compensation is not challenged by the Appellant Insurance Company. However, in MAC.APP.676/2011 the Claimants have filed Cross-Objections and seek enhancement of compensation. I shall deal with the Cross-Appeal a little later. First of all, let me advert to the four Appeals filed by the Reliance General Insurance Co. Ltd. The only ground of challenge raised by the Appellant Insurance Company is that Respondent No.3 Amit @ Nata, driver of RTV No.DL-lVA-1494 did not possess a valid and effective driving licence to drive the insured vehicle. The Appellant was, therefore, entitled to avoid the policy. Thus, the Appellant Insurance Company was at least entitled to recovery rights against the owner and the driver of the offending vehicle. The learned counsel for the Appellant Insurance Company urges that in these cases a DAR(Detailed Accident Report) was filed by the 10 of the case which stated that the driver had absconded and, therefore, could not MAC. APP. Nos.672/2011, 673/2011. 674/201 I, 676/201 I &221/2012 Page 3 ol"? ]> produce the driving licence. It is important to note that the driver of the offending vehicle had absconded after the accident. As per the learned counsel for the Appellant and also the police report, he was declared a proclaimed offender and could not be arrested so far in the criminal case which was registered against him. Simply, because the driver had absconded, it could not be inferred that the driver did not possess a valid and effective driving licence to drive the RTV involved in the accident so as to entitle the Appellant Insurance Company to avoid the contract of insurance.

¶6Admittedly, no notice under Order 12 Rule 8 CPC was served upon the owner to produce the driving licence of the driver. In fact, there were other cases filed by the other victims wherein the copy of the driving licence was produced by the owner when he was issued a notice under Order 12 Rule 8 CPC. Even if, I do not take cognizance of the production of copy of the driving licence in those cases, the fact remains that the Appellant Insurance Company failed to discharge the initial onus to prove that there was a conscious and wilful breach of the terms and conditions of the policy on the part of the insured. The Appellant, therefore, cannot avoid the contract of insurance.

¶7During the course of arguments, a legal question was raised by the learned counsel for the Appellant Insurance Company. It is stated that carrying capacity of the insured vehicle RTV No.DL-lVA-1494 as per registration certificate (Ex.R3Wl/C) placed on record was 15. It is urged that more than 21 passengers were travelling in the insured vehicle at the time of the accident and 21 of them suffered injuries as the RTV capsized on account of rash and negligent driving. As many as 21 Claim Petitions were filed in respect of this accident. It is urged that the Appellant was MAC. APP. Nos.672/2011, 673/2011, 674/201 1,676/2011 &221/2012 Page4or7 I liable to pay the compensation only in respect of 15 victims and the compensation of 15 victims was to be distributed on pro rata basis by the Court amongst all the 21 victims and rest of the compensation shall be payable by the owner and the driver of the vehicle.

¶8I tend to agree with the learned counsel for the Appellant Insurance Company. This question was directly dealt with by the Supreme Court in National Insurance Co. Ltd. v. Anjana Shyam & Ors., (2007) 7 SCC 445. In the said case, the bus had carrying capacity of 42 passengers for which it paid the premium. It was overloaded and was carrying 90 passengers. The bus fell off the road into a nala leading to death of 26 persons including the driver and injuring other persons. The legal representatives of the deceased and the injured approached the Motor Accident Claims Tribunal claiming compensation under Section 166 of the Act. A contention was raised before the Claims Tribunal that it was a fundamental breach of the contract of Insurance and therefore, the Insurance Company could repudiate the policy and was not liable for the compensation that may be adjudged. The Claims Tribunal brushed aside the objection and passed the award. The Insurance Company filed 38 Appeals before the Himachal Pradesh High Court. The High Court held that overloading of a bus which had permit to ply on the route with only 42 passengers did not amount to violation of the route permit or any other law for which the State Govt. could be held to be contributory negligence and that the Insurance Company was liable to pay the amounts as awarded by the Claims Tribunal. The Insurance Company approached the Supreme Court where it was held that Insurance Company would be liable to pay compensation in respect of 42 awards passed for the highest amount which would be distributed amongst the injured/legal MAC.APP.Nos.672/2011,673/2011,674/2011,676/2011 &221/2012 Pages of7 n representativesofthe deceasedequitably. Inthe instantcase,the carrying capacitywas 15 andthevehiclewas overloadedwith21 passengers.

¶9My attention was drawn to an order dated 17.09.2011 passed by the Claims Tribunal whereby five Claims Petitions being (Suit Nos. 283/2011,284/2011,285/2011,286/2011 and 341/2010)were dismissed for want of any evidenceand one Petitionbeing(SuitNo.316/2010)was adjournedsine die. The learnedcounselfor the Appellantconcedesthat only fifteen Appeals have been filed.

¶10Since compensationhas been awardedin fifteen cases which is payable by the Appellant;there is no questionofpaymentofcompensationon pro rata basis.

¶11MAC.APP. Nos. 672/2011, 673/2011, 674/2011 & 676/2011 are accordingly dismissed. MAC.APP.221/2012

¶12This Cross-Appeal has been filed by Suresh and Ram Naresh, two brothersof deceasedRamesh Chand. ft is statedthat the first Appellant was the younger brother of the deceased and was residing with the deceasedin Delhi,whereasthe secondAppellantwas elderbrotherofthe deceased. Admittedly, both the Appellants were gainfiilly employed. The Claims Tribunaltook 1/6"' ofthe deceased'sincome as his saving andappliedthe multiplierasper his age, that is, 13 and awardeda sum of ?1,37,228/-towardsloss to estateinfavourofthe Cross-Objectionists.

1.3. ft is urged by the learned counsel for the Appellants that deceased yt: RameshChandwas aged 48 years and was unmarried. Thus, the Claims Tribunal ought to have deducted only 1/3'"'' of the deceased's income towardshis personaland livingexpensesand awarded2/3'''of his income towards loss to estate. MAC. APP. Nos.672/2011,673/2011,674/2011,676/2011 &221/2012 Page6of? / - J \ r

¶14I would not agree. Although, it was .claimed that the deceased was operatingfrom the footpathin Radio Market, ChandniChowk, Delhi and was earning ^10,000/- per month, in the absence of any evidence with regard to-deceased's Ramesh Chand income, the Claims Tribunal awarded the compensation on the basis of minimum wages of an unskilled worker. Since deceased Ramesh Chand was held to be earning only minimumwages, he could not be expectedto save much from the small sum of ?5,278/- per month. In the circumstances,the award of a sum of ?1,37,228/-is justified and is in consonancewith the judgmentof Division Bench of Kamataka High Court in A.Manavalagan v. A.Krishnainurthy& Ors., 2005 ACJ 992 and this Court in Keith Rowe. v. Prashant Sagar & Ors., 2011 ACJ 1734.

¶15The CrossAppeal(MAC.APP.221/2012)is devoidof any merit;the same is accordingly dismissed.

¶16Statutoryamountof ^25,000/-,if any, shall be refundedto the Appellant Insurance Company in each of the cases.

¶17Pending Applications stand disposed of DECEMBER 12, 2012 pst (G.P. MITTAL) JUDGE MAC. APP. Nos.672/201 I, 673/2011, 674/2011, 676/2011 &221720I2 Page 7 of?

( ; $ * IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofdecision: 12"' December,2012 + MAC. APP. 221/2011 SURESH & ORS. Appellant Through: Mr. Navneet Goyal with Ms. Suman N. Rawat, Advocates Versus RELIANCE GENERAL INSURANCE CO. LTD Respondents Through: Mr. Sameer Nandwani, Advocate CORAM: HON'BLE MR. JUSTICE G.P.MITTAL