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2024 DIGILAW 231 (PNJ)

Oriental Insurance Company Ltd. v. Balwinder Kaur

2024-01-24

AMAN CHAUDHARY

body2024
JUDGMENT : AMAN CHAUDHARY, J. 1. Challenge in the appeal, filed by the Insurance Company is to the award dated 02.12.1993 passed by the Motor Accident Claims Tribunal, Patiala (for short ‘the Tribunal’) vide which Insurance Company was held liable to pay compensation to the claimants. Cross-objectors/claimants have also filed cross-objections seeking enhancement of the compensation awarded to them. 2. This is a reconstructed case, as the original file was burnt in the fire that broke out in the concerned branch in the year 2011. Since the case is pending for more than 31 years, the counsel for the parties have no objection, if the same is decided on the basis of the available record. 3. Learned counsel for the appellant contends that the Tribunal has committed an error to hold the Insurance Company liable to make the payment of the compensation awarded, despite the fact that the driver of the maruti van was not holding a valid driving licence, as per the verification report of Surveyor. He further submits that the award is already excessive, thus he prays for dismissal of the cross-objection of the claimants. 4. Learned counsel for the cross-objectors submits that the deceased, 30 years old at the relevant time, was agriculturist and earning Rs.7000/- per month, however, the Tribunal has wrongly taken as Rs.1500/-. He left behind his wife, two minor children and aged parents. The compensation awarded by the Tribunal is on the lower side. No amount has been awarded under the conventional heads. 5. Having heard the learned counsel on either side and file perused, this Court is unable to countenance the submissions canvassed on behalf of the appellant-Insurance company, whereas those of the respondent/Cross-objectors are found to have merit. 6. As regards the contention of there being no liability of the Insurance company, the mere producing of the verification report was not sufficient, without examining the official of the licencing authority before the Tribunal to prove the same and granting an opportunity to the owner and driver to cross-examine such a witness. Considering the above, a worthwhile reference would be to National Insurance Co. Considering the above, a worthwhile reference would be to National Insurance Co. Ltd. vs. Laxmi Narain Dhut (2007) 3 SCC 700 , wherein Hon’ble the Supreme Court held that, “Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by duly licenced driver or one who was not disqualify to drive at the relevant time….” Further in Pepsu Road Transport Corporation vs. National Insurance Company 2013(4) RCR Civil 273 it was observed that, the situation would be different if at any time of the insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licencing authority or if the attention of the owner of the vehicle is otherwise invited to the allegations that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licencing authority. If despite such information with the owner that the licence possessed by his driver was fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation. In United India Insurance Company Ltd. vs. Lehru and others 2003(2) RCR Civil 278, it had been observed that the breach of contract by owner of the insured vehicle must be established by the insurance company as also that the vehicle was knowingly and intentionally handed over to a driver not holding any valid licence to drive such a vehicle, without which breach of condition of policy cannot be attributed to the insured. If the licence held by the driver seems to be valid, the owner is not expected to make a roving enquiry to find out its validity. The onus to prove the driving licence produced in the claim proceedings to be fake, lay heavily upon the insurer, as held in Magma HDI General Insurance Co. If the licence held by the driver seems to be valid, the owner is not expected to make a roving enquiry to find out its validity. The onus to prove the driving licence produced in the claim proceedings to be fake, lay heavily upon the insurer, as held in Magma HDI General Insurance Co. Ltd. vs. Shinder Kaur @ Surjit Kaur and others 2019(2) Law Herald 1339, which cannot be said to have been discharged on mere surmises and conjectures, in absence of any positive evidence, which was conspicuously missing in the case at hand. On the aforesaid premise, this Court finds no force in the submission canvassed on behalf of the appellant. 7. Perusal of the award it reveals that there being no income proof proved on record, the Tribunal has taken it as Rs.1500/-, which cannot be faulted with. For the aspect of enhancement of compensation, this Court can make a profitable reference to the law laid down in Sarla Verma vs. DTC, (2009) 6 SCC 121 , involving an accident with a bus belonging to the Delhi Transport Corporation, on 18.04.1988, causing the death of a Scientist, working in the Indian Council of Agricultural Research, and vide award dated 06.08.1993, Motor Accidents Claims Tribunal, New Delhi partly allowed the claim and granted compensation of Rs. 5,79,000/-, which, when challenged before the High Court was enhanced to Rs. 7,19,624/- in a judgment dated 15.02.2007. Being not satisfied therefrom, when the claimants approached Hon’ble the Supreme Court, which after considering a catena of judgments, increased the same to Rs. 8,84,870/- and observed that an objective approach should be adopted for arriving at just compensation and elaborating thereupon it was held that there should be a uniformity while calculating the same, relating to increase in future prospects, deduction towards personal expenses of the deceased, multiplier to be applied and also grant of lump sum amount under the heads of (a) loss of estate, (b) loss of consortium and (c) funeral expenses. In Janabai vs. ICICI Lambord Insurance Co. Ltd., (2022) 10 SCC 512 , an accident occurred on 01.06.2007, causing the death of the deceased, who was riding a motorcycle and got struck by a car, the Tribunal awarded the claimants compensation amounting to Rs.8,90,000/-, which was challenged by the Insurance company, and the claim was dismissed. In Janabai vs. ICICI Lambord Insurance Co. Ltd., (2022) 10 SCC 512 , an accident occurred on 01.06.2007, causing the death of the deceased, who was riding a motorcycle and got struck by a car, the Tribunal awarded the claimants compensation amounting to Rs.8,90,000/-, which was challenged by the Insurance company, and the claim was dismissed. However, on approaching Hon’ble the Supreme Court, the judgment was set aside and they were granted Rs. 11,63,000/- as enhanced compensation in view of National Insurance Co. Ltd. vs. Pranay Sethi, (2017) 16 SCC 680 , wherein it had been additionally held that, “Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.” 8. Consequentially, the claimants-cross objectors are entitled to enhancement of compensation by granting them future prospects to the extent of 40%, he being self employed and also for the compensation under the conventional heads i.e. Rs.36,000/- for funeral expenses and loss of estate; Rs.48,000/- for loss of consortium to the wife of the deceased; (Rs.48,000 x 4 = Rs.1,92,000) for filial consortium to the two children and parents. The deceased being 30 years, the multiplier of 17 should be applied. 9. Accordingly, the total compensation comes to Rs.5,25,600/- (1000 (monthly dependency) + 40% (towards future prospects) x 12 x 17 (multiplier) + Rs.2,40,000/- (conventional head). Thus, the enhanced compensation of Rs.3,09,600/-, over and above the amount of Rs.2,16,000/- already awarded by the Tribunal, alongwith interest at the rate of 7.5% per annum, in view of the judgment in Dharampal vs. U.P. SRTC, (2008) 12 SCC 208 , from the date of the passing of the award, till its realization, shall be paid to the claimant-appellants, as ordered by the Tribunal, within a period of 2 months from the date of receipt of a certified copy of this judgment. Failing which, the amount shall accrue an interest as awarded by the Tribunal. 10. Accordingly, the appeal filed by the insurance company is dismissed, however, the cross-objections filed by the claimants are partly allowed by modifying the award to the extent aforesaid.