Partly allowed

Vinay Kumar v. Suman Arora and Ors.

Delhi HC16 Mar 2016MAC.APP./209/2013

Case brief

AI extract

What is this about?

This appeal concerned a motor accident claim where compensation was calculated using incorrect dependency income figures. The High Court enhanced the compensation, increased interest from 7.5% to 9%, and remitted the issue of the driver's license validity and the insurer's recovery rights to the tribunal for fresh inquiry.

What did the court decide?

Compensation enhanced to Rs. 11,47,060/-; interest increased to 9% per annum; issue of driver's license validity and insurer's recovery rights remitted to the tribunal for fresh inquiry; statutory dep

Vinay Kumar Vs Suman Arora and Ors. — Motor Accident Claims | Delhi HC (2016)

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Signature Not Verified Digitally Signed By:AM UL YA

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$~ 6 to 8 . •

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IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofDecision: 16"' March, 2016

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MAC.APP. 888/2010 SUMAN ARORA & ORS • Appellants Through: Mr. S N Parashar, Adv.

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versus

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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 .

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Appellant Through: 1;/Ms. rSunian Bagga and Mr. Pankaj Ghipfaj Adv^ - .p'"* •••'iP^ersus' •• . . V ' • jv" SUMAN ARORA & ORS .. Respondents Through: Ivlr. S N Parashar, Adv. for R-I Mr. K P Singh Chauhan, Adv. for R-4

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MAC.APP. 209/2013

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VINAY KUMAR Appellant Through: Mr. K P Singh Chauhan,Adv. versus SUMAN ARORA AND ORS

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Respondents

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MAC.APP. No.8S8''20/()& conn.

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Page / of 7

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Through: Mr. S N Parashar, Adv. for R-1 Ms. Suman Bagga and Mr. Panlcaj Gupta, Advs. for insurance

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CORAM:

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HON'BLE MR. JUSTICE R.K.GAUBA

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JUDGMENT

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R.K.GAUBA, J (ORAL):

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Mr. 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.DL 90-0 8876 (the car) in'whichhe was traveling was involved in a cdilisionagainstfruclUtrailerbearing registrationNo.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 Insurance Company Ltd. (appellant in IVIAC.APP.653/2011).The mother of the deceasedwas impleadedas fourth respondent(performaparty) on the plea that she was also a dependenton the deceasedand thus entitledto compensation.

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The tiibunals record shows that both the driver and owner of the offendingvehicle,though duly seiwed, chose not to appear and thus were set ex ^pcnte. .fhe other two respondentsin the claim proceedings,includingthe

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MAC.APp. No.888/20!0 ct' conn

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Page 2 of?

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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.

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The 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.

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The plea ,of the insurance company 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 of evidenceof its 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, found that acase had been made out to grantrecoveryrights to the insurance companywhich otherwisewas directedto specif)^the award, the owner and driver ofthe offendingvehiclehaving been held jointlyand severallyliable to pay the compensation. Noticeably,in the operativepart ofthe impugned

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MAC.APP. No.888/2010<& conn.

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Page 3 of 7

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judgment passed by the tribunal on 18.09.2010, there was no clear direction with regard to the recovery rights.

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The 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 nonpecuniary heads of damages are paltry: v.

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^ •

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The 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 rights may be granted. -

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The owner of the ofibnding.{vfeljidle (Vinay Kumar)? had moved applicationunder Order 9,Rulel3..ii??POfie the tribunal in the course of 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 allowed to be withdrawnby the tribunalby order dated 23.01.2013passed in miscellaneouscase No.7/12 with liberty granted to file an independentappeal. In wake ofthe said proceedings,he filed an appeal (MAC.APP.No.209/2013),mainly to contend that the driver held a valid'and effective driving license and, therefore there was no breach of terms and conditions of the insurance policy. Per contra, the learned counsel for the insurer submittedthat the driving license, the photocopyof which has been submitted by the owner (Vinay Kumar), appears to be a

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•^'ly^C.APP. No.88S,-20I0A conn

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Page 4 of?

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Intp;//! V2.100. J0.159/litml/deit;ci--iiiinVr)nn~-.i

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,1 ' ;i T • ! -

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forged and fabricateddocument,not valid for the purposesof the 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 there was no breach. On being asked, he statedthat he is leady to face an inquiryand in case the documentis found to be not correct, he is ready,to face criminalprosecution.

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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 assumptionof thfe teiBunalthat tfieji^pfri|.v^^^^kl3,259Aperannum is not coriect. The calculation,thus, has tfrbd hiade afresh. After deducting1/3"' '' ;• towardspersonal&livingexpens©|fMe;taTfannual dependicycomes to (1,19,706X2- 3;| multiplierof 15, and lightly so, given th|^^t;,tha|W w^^hg^I^JyJears. Thus, the total loss ofdependenCy.Jkcalculalfe xl5|ill,97,060/-. ^he view taken InT^q/e.y/i Ors. v. Rajbir Singh &Ors., IS: 013) 9see 54 and ShashikalaV. 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 of estate anc fitneral expenseare added. Thus, the totai compensationpayabiein the L, r •• TuilZr'^'" ^'4.47,060/-rounded off to

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IS:

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r •• i;'

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MAC.APP. N0.888/2OIO&cor.

conn.

Pages of7

til fell

It 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.

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The 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. /

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The 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 period in question..Therefore,,this,issueis remittedfor further inquiryto 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 crossexamine the witnesses proved in support of such claim and also be entitled to lead evidencein rebuttal. The evidencealready led by the insurer during• earlierinquiiybeforethe tribunalshall also be consideredby the tribunal. In the event of the tribunalreachingafindingthat avalid and effectivedriving license was held by the driver, the obseiwationin the impugnedjudgment that the insurerwill have recoveryrights shall stand vacated; Conversely,if

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MAC.APP. NO.8S8/20I0 conn

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Page 6 of?

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the owner (Vinay Kumar) fails to prove the facts arguedby him, the insurer shail be gi'anted recovery rights.

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It 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 consider the expediency of initiating criminal action against him.

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The 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: •

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