Allahabad High Court
Kamlawati And Ors. vs I.C.I.C.I. Lombard Through Its Manager ... on 18 February, 2019
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH [Court no. 10] (AFR) (Reserved) Case :- FIRST APPEAL FROM ORDER No. - 286 of 2010 Appellant :- Kamlawati And Ors. Respondent :- I.C.I.C.I. Lombard Through Its Manager And Ors. Counsel for Appellant :- Sanjay Tripathi,Anand Mohan,Rajesh Kumar Pandey Counsel for Respondent :- Anchal Mishra,Anil Kr.Srivastava,Mukesh Singh,Shakeel Ahmad Ansari [AND] Case :- FIRST APPEAL FROM ORDER No. - 737 of 2010 Appellant :- Smt. Nisha Verma And Ors. Respondent :- I.C.I.C.I. Lombard Thro. Manager Legal Birla Tower And Ors. Counsel for Appellant :- Shakeel Ahmad Ansari,Anand Mohan,Mukesh Singh Counsel for Respondent :- A.K.Srivastava,Anchal Mishra,Rajesh Kumar Pandey Hon'ble Vikas Kunvar Srivastav,J.
1. This First Appeal From Order is moved against the judgment and award dated 04.02.2010 and 11.02.2010 respectively of Motor Accident Claims Tribunal/Additional District Judge, Court no. 1, District Faizabad in Claim Petition No. 66 of 2007 (Nisha Verma Vs. ICICI Lombard and Others) by the owners of the offending vehicle. Another First Appeal From Order No. 737 of 2010 is moved by Smt. Nisha Verma widow of Anurudh Verma 'deceased' in the Motor Accident, referred to herein-above, for enhancement of the compensation granted by learned court below vide the same judgment and award dated 04.02.2010 and 11.02.2010 impugned in FAFO no. 286 of 2010, aforesaid.
2. Since the facts, circumstances and evidences involved in both the appeals are arisen from the same judgment, therefore, the respective arguments in both the appeals are heard.
3. The offending motor vehicle the Tractor No. UP-42 E/7710) at the time of accident was alleged to have been insured by the insurer respondent no. 1 in the appeal, the ICICI, Lombard. Vide impugned judgment and award, learned Motor Accident Claims Tribunal, Faizabad, held responsible to the said motor vehicle for causing accident on 27.02.2007 with a motorcycle driven by one Anuruddh Kumar Verma S/o Jairam Verma who suffered severe injuries, battled for life in hospital and ultimately died on 17.03.2007. The Motor Accident Claims Tribunal awarded a compensation to the tune of Rs. 3,75,107/- to the claimant-respondents with direction to the owners/appellants to pay within one month from the date of judgment with interest at the rate of 6% per annum, chargeable from the date of Claim Petition till the actual payment. The Motor Accident Claims Tribunal exonerated the Insurer ICICI, Lombard holding the insurance covernote produced by the appellant owner forged and as such non-existence of any contract of insurance at the relevant time of accident.
4. Aggrieved therefrom, the owner preferred the appeal on the grounds set forth in the memo of appeal inter alia viz. their motor vehicle was insured by the Insurer the 'ICICI Lombard' of which original covernote bearing No. MR 4792881 they had placed before the learned Tribunal. The genuineness of the covernote was not specifically denied by the respondent Insurance Company, 'ICICI Lombard' in their pleading (written statement of defence). Without specific pleading as to the insurance covernote being fake or forged, issue no. 2 in this regard framed and burden of proof of proving genuineness of the covernote produced in original by the appellants was laid on them. Evidence beyond and without pleading of the respondent was permitted to be adduced and an affidavit of manager legal ICICI Lombard setting story of loss of several blank covernots including the one in question from the possession of Agent was set. The said story was taken into consideration while deciding issue no. 2 which was as to whether the offending motor vehicle was insured by the respondent-insurance company and was effective at the time of accident. As such, the tribunal reached at wrong conclusion of the insurance covernote being forged and thus erroneously exonerated the 'ICICI Lombard' the insurer from demnifying the legal representatives of deceased victim of the accident.
5. Heard Sri Sanjay Tripathi assisted by Sri Rajesh Kumar Pandey, learned counsel for the appellants and Sri Anil Kumar Srivastava, learned counsel for respondent no. 1- the 'ICICI Lombard'.
6. Before going through respective submissions, it would be relevant to state briefly the facts and circumstances before the learned Motor Accident Claims Tribunal, Faizabad. The issues, evidence and the finding thereon given by it. The Claim Petition for compensation was filed before the learned Motor Accident Claims Tribunal by the widow, daughter and parents of the deceased Anurudh Kumar Varma. The deceased while driving his motorcycle met accident with the offending motor vehicle tractor on 27.02.2007 at about 7:00 p.m. at Faizabad-Akbarpur Road near Takpura crossing, Police Station Kotwali Ayodhya. He got severe injuries, battled for life and ultimately died in hospital on 17.03.2007
7. The 30 years old deceased-Anurudh Kumar Varma, the registered owner of the said Motorcycle No. UP-42 D/7430 was the only son of his parents. He left behind him wife and a minor daughter of 4 years age. The deceased was doing the business of driving Truck as well as agricultural work and his income was alleged to have been approximately Rs. 13,000/- per month. The offending motor vehicle Tractor at the time of accident was alleged to have been insured by 'ICIC, Lombard'. Therefore, in the claim petition, it was impleaded as defendant alongwith the owner of tractor.
8. The owners filed on 05.09.2007 (paper no. 21-ka) their written statement denying the accident from their Tractor bearing No. UP-42 E/7710 and pleaded an enmity with them poised by the petitioners. Further they pleaded that their Tractor is ensured with ICICI Lombard and it's covernote bearing no. 479288 was effective from 26.07.2007 to 25.07.2008. In Para 24 of their written statements they pleaded specifically that on the date of alleged accident i.e. on 27.02.2007, their Tractor was being driven by driver, namely ''Arvind Kumar' whose license bearing number 4423/FD/95 was valid from 16.06.2004 up to 16.06.2007. Documents in evidence supporting the said pleadings were also filed by the owners (appellants).
9. The respondent-I.C.I.C.I., Lombard filed it's written statement in defence before the Motor Accident Claims Tribunal on 08.05.2007 (paper no. 7-ka). It has denied the fact of accident simply for want of knowledge. The claim petitioners in para 18 of the petition have pleaded the offending vehicle 'tractor' to have been insured by the ICICI, Lombard but it has not specifically denied the said facts in the written statement. The averment relating to the said fact of insurance is replied by saying, "It is a matter of record however complete reply will be given after verification of alleged insurance." This would not be out of relevance to observe that it has neither been replied further, by pleading the fact, whether the genuineness of the insurance covernote is verified, nor the fact of it's being fake or forged, through amendment in written statement or by filing additional written statement was pleaded for the said purpose. The contents of paras 26, 27, and 28 are the stereo type defences without having substance behind them. Such pleas are seen, having been taken by the Insurance Companies, as usual practice in every case for compensation against them viz. Vehicle was being driven by a person not holding a valid and effective driving licence to drive such vehicle, the vehicle was being driven by the driver in violation of terms and conditions of the policy. The Insurance Company be liable only if the provisions of Section 64(v)-B of the Insurance Act are followed and premium is paid. Further in the event of any collusion between the owners of the offending Tractor alongwith the petitioners, the I.C.I.C.I. Lombard reserves it's right under Section 170 of the Motor Vehicles Act to defend.
10. On these pleadings, the Motor Accident Claims Tribunal framed the following issues :
"1& D;k fnukad 27-2-07 dks le; djhc 7 cts lk;a ogn LFkku rdiqjk pkSjkgk Fkkuk dksrokyh v;ks/;k esa tc e`rd vuq:) dqekj oekZ eksVj lkbfdy ua0 ;w0ih0 42 Mh@7430 ls QStkckn 'kgj tk jgk Fkk fd VSªDVj la0 ;w0ih0 42 bZ@7710 ds pkyd }kjk rsth o ykijokgh ls pykrs gq, mls VDdj ekj fn;k ftlls mls xEHkhj pksVs vk;h vkSj dkykarj esa mldh e`R;q gks x;h\ 2& D;k iz'uxr nq?kZVuk ds le; iz'uxr okgu chfer Fkk vkSj chek oS/k Fkk\ 3& D;k pkyd ds ikl oS/k] izHkkoh ykblsal Fkk\ 4& D;k chek ds fdlh ^'krZ* dk mYya?ku fd;k x;k gS\ 5& D;k okn esa la;qDr mnklhurk dk fl)kUr izHkkoh gS\ 6& D;k ;kphx.k fdlh izfrdj dh /kujkf'k dks izkIr djus ds vf/kdkjh gSa ;fn gka rks fdlh foi{kh ls fdruk /kujkf'k izkIr djus ds vf/kdkjh gSa\"
11. Out of the aforesaid issues, issue no. 1 pertains to the incident of accident in question wherein Anuruddh Kumar Verma, driver of the Motorcycle No. UP-42 D/7430 got severe injuries and ultimately succumbed to death by reason therefor. Another issue which is relevant for decision in this appeal is issue no. 2 which relates to the insurance of the offending vehicle the 'Tractor' bearing no. UP-42 E/7710. The particulars of the insurance covernote are given in the written statement of the owner of the vehicle. The burden to prove accident for the purpose of decision over issue no. 1 is on the claimant-petitioners who pleaded the fact of accident. The burden to prove that the offending motor vehicle was insured at the time of accident by the ICICI, Lombard is primarily on the owners of the offending tractor. If the owner (insured) has provided the original covernoted issued by the insurer-ICICI, Lombard, they shall be treated as to have discharged their preliminary burden of proof. ICICI Lombard if desirous of avoiding its liability as insurer towards third party risk on the ground of ingenuineness of the insurance covernote or on the ground of violation of any condition under the policy terms e.g. of not holding a valid driving licence by the driver of offending vehicle, the contributory negligence etc. then it has burden of pleading such fact specifically alongwith evidentiary burden to prove such facts. This burden cannot be shifted from it.
12. In oral evidences, an eye witness of the accident, namely, PW-2 Om Prakash Pathak was called in evidence who stated on oath that on 27.02.2007 at about 7:00 p.m., the accident in question happened at Faizabad-Akbarpur Road near Takpura crossing, Police Station Kotwali Ayodhya, nearby a tea-shop of one namely Musse. At that time, the witness was coming from Faizabad to his home. One Ram Tilak was sitting on the said tea-shop who was the villager of the same village called out and offered tea, therefore he stayed there alongwith him. Approximately after 15 to 20 minutes of his stay there the accident happened. The eye witness further stated that the Motorcycle was at a normal speed of 15 to 20 k.m. per hour, whereas the Tractor with Trolley coming speedily & rashly dashed behind Motorcycle. The Tractor driver fled away leaving the Tractor on the spot. The people of the vicinity told that this Tractor belonged to one Ram Teerath, resident of Bheekhapur. Police came just after 15 to 20 minutes after the accident and carried the injured persons. He admitted that Anuruddh Kumar Verma-deceased was of his village. On having been cross examined by the owners of the Tractor, he remain intact with his statements. Since the Insurance Company did not opt to defend on any other grounds than permitted under law, so they did not cross examine the witness. The learned Motor Accident Claims Tribunal held the accident occurred on 27.02.2007 as described by the claimant-petitioners.
13. An insurance cover note bearing no. 4792881 dated 26.02.2007 effective till mid night of 26.02.2008 issued on 26.02.2007 is pleaded, specifically with complete particulars, in written statement of the owners, and is on record filed by them. As such the owner has discharged his initial burden of proving fact of insurance coverage contract with respondent no. 1-insurer. Further, in his oral evidence also he proved the original insurance cover certificate on oath before the learned MACT during his examination.
14. The Tractor owner Ram Teerath deposed as the DW-1 to prove the registration certificate, Insurance cover note and driving licence filed by him alongwith the affidavit. In the cross examination by ICICI Lombard, this witness asserted that the 'tractor' no. UP-42 E/7710 is of his ownership which is alleged to have caused the accident was insured by the 'ICICI, Lombard' and the same was effective at the relevant time of accident and the payment of premium was made by a cheque of Indian Overseas Bank dated 26.02.2005.
15. On being given suggestion by the ICICI, Lombard during the cross examination, the owner (DW-1) denied that insurance was obtained subsequent to the accident. On perusal of facts pleaded by the contesting parties to the claim petition, it is explicit that there is no pleading of the Insurance Company setting any ground which might be able to show any ingenuineness in the original covernote of the insurance policy or its being forged document. Even non-issuance of the said covernote by the company is also not pleaded.
16. In the wake of facts, circumstances and evidence on record of the case in hand, the question to be decided is that :
(A) whether the learned Motor Accident Claims Tribunal erred in holding the original insurance covernote no. MR 4792881 to be forged without any particular fact and specific pleading to this effect by ICICI, Lombard, the Insurance Company and evidence in this regard.
(B) Has the learned MACT placed wrongly the burden on the insured-the owner of the offending vehicle of proving that Insurance certificate is not forged.
17. There was no specific pleading in the written statements (paper no. 7-ka) submitted by respondent no. 1-Insurance Company that it has not insured the offending motor vehicle. The effect of the absence of of such specific pleading is of foremost consideration in this appeal. The Insurance Company was, at the very inception of filing of the claim, impleaded by the claimant-petitioners in the petition as respondent no. 1, as such the Insurance Company had right to defend the claim of petitioners not only on the grounds of statutory defences as envisaged under Section 149(2) of the Motor Vehicles Act but also on other grounds whatever available ought to have been taken so as to avoid liability as insurer. But no such grounds were taken in the written statement. Rather in para 18 of the written statement, the Insurance Company pleaded half hearted as against the averments made by the claimant-petitioners regarding insurance of offending Motor Vehicle simply by stating, "It is a matter of record however complete reply will be given after verification of alleged insurance." Such plea in written statement of the ICIC, Lombard is hardly to be appreciated, as when the insurance of offending motor vehicle is specifically pleaded in the claim petition and when the record relating to insurance of the offending motor vehicle in question was very much in their possession, verification of the genuineness of the insurance covernote could not be said impossible before filing the written statement. They were burdened to plead denial of the existence of the Insurance coverage with regard to the offending motor vehicle in their written statement of defence. In absence of any specific denial, the aforesaid pleadings of respondent no. 1 should have been treated as admission of the very existence of the insurance covernote effectively.
18. Further, the owner-appellants submitted their written statement of defence contesting the claim of the claim-petitioners, specifically denying the accident and pleading their motor vehicle having been insured by respondent-ICICI Lombard at the alleged date of accident giving particulars of the insurance covernote with the submission of original covernote before the court below. Neither any specific denial of the said insurance covernote was made in the written statement by respondent-ICICI, Lombard nor with due permission of the court, additional written statement was submitted setting the ingenuineness, even when they in their written statement had reserved their right to reply regarding alleged insurance after verification. No reply was submitted which amounts an admission of the fact that the offending motor vehicle tractor no. U.P. 42E/7710 to have been insured by the respondent-ICICI, Lombard and the insurance was effective at the relevant time of accident as pleaded by the petitioners in their claim and by the insured (the owner of the offending motor vehicle traction in their written statement.
19. Learned counsel for respondent-ICICI, Lombard laid emphasis on the story of loss of several blank insurance covernote from one of its Agent including the insurance covernote pleaded and produced by the appellant before the court below. The said story though unpleaded in written statement was inducted by way of affidavit in examination-in-chief of their Manager Legal in evidence before the Tribunal. The deponent of affidavit was not produced for cross-examination so as to testify his evidence.
20. Here it would be relevant to refer Section 169 of the Motor Vehicles Act which enables the tribunal, while holding any enquiry under Section 168 of the Act, with the power of a civil court. The ordinary Rules of pleadings are applicable to the enquiry under Section 168 of the Act also, like all civil proceedings. The Code of civil procedure in its Order VI Rule 4 provides that in all the cases in which the party pleaded relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
21. In the light of the aforesaid provisions as to the pleading, it was incumbent upon the respondent-ICICI, Lombard to plead the facts setting particularly and specifically how and under what manner the original insurance certificate pleaded and produced, by the owners of the offending motor vehicle-the insured, is forged or ingenuine. Further, insurance is a contract between Insurance Company and the insured, issuing insurance cover certificate is a manifestation of contract of insurance, abiding both insurer and the insured. If such contract of insurance was intended to be denied by the insurer-ICICI, Lombard before learned court below, then there must have been pleading to this effect in written statement with a clear and explicit cause of denial. This would further be relevant here to quote Order VI Rule 8 of C.P.C. which provides that where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.
22. With regard to the provision of Order VI Rule 4, Mulla's Code of Civil Procedure, 9th Addition, Volume, 2, Syn. 7 says, the general principles upon which the courts act in requiring particulars to be given of allegations of matters stated in plaints are applicable equally to defences, and the rules relating to the giving of particulars are in general applicable to all pleadings, though from the nature of the case the occasion for particulars arises somewhat less frequently in regard to defences than in regard to claims. Thus, where a defence consists of traverses or denials of allegations in the claim so that the defendant is not taking upon himself the onus of providing any substantive facts but is only denying or requiring proof of those alleged by the plaintiff, the occasion for particulars does not arise; but where he pleads affirmatively or sets up facts to be proved in answer to the plaintiff's case, he may be, and in general is, as much under obligation to give particulars as it he were alleging such or similar matters in a plaint.
23. In the above context, the respondent-ICICI, Lombard was required, what to do, in their written statement would be seen in the light of provisions of Order VIII Rule 2 CPC which provides that the defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.
24. Order VIII Rule 3 Code of Civil Procedure provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
25. Order VIII Rules 4 and 5 are also important to be kept in mind while considering the 'burden of pleading' on the respondent-Insurance Company while defending the claim. It has to make a clear pleading of denial than to make an evasive plea. The provision of Order VIII Rule 4 starts with the heading 'Evasive denial' where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Further, the code mandates under Order VIII Rule 5 provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability, provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
26. A similar issue regarding the evasive pleading and its effect has been raised before Hon'ble the Supreme Court in the case of M/s Gian Chand & Brothers and Another Vs. Rattan Lal @ Rattan Singh reported in [(2013) 3 S.C.R. 601]. In Para nos. 17, 18, 19, 20, 22, 23 and 24, Hon'ble the Apex Court held as under:
"17. It is well settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh, [(2006) 5 SCC 558], it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.
18. In Krishna Mohan Kul v. Pratima Maity and others, [(2004) 9 SCC 468], it has been ruled thus: -
"When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation."
19. In Shashi Kumar Banerjee and others v. Subodh Kumar Bannerjee, (AIR 1964 SC 529) since deceased and after him his legal representatives and others, a Constitution Bench of this Court, while dealing with a mode of proof of a will under the Indian Succession Act, observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
20. In A. Raghavamma and another v. A. Chenchamma and another,(AIR 1964 SC 136) while making a distinction between burden of proof and onus of proof, a three-Judge Bench opined thus: -
"There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence."
22. The said aspect can be looked from another angle. Rules 3, 4 and 5 of Order VIII form an integral code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact [see Badat and Co., Bombay v. East India Trading Co.,(AIR 1964 SC 538)].
23. Rule 4 stipulates that a defendant must not evasively answer the point of substance. It is alleged that if he receives a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received, and that if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. Rule 5 deals with specific denial and clearly lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted against him.
24. We have referred to the aforesaid Rules of pleading only to highlight that in the written statement, there was absolutely evasive denial. We are not proceeding to state whether there was admission or not, but where there is total evasive denial and an attempt has been made to make out a case in adducing the evidence that he was not aware whether the signatures were taken or not, it is not permissible. In this context, we may profitably refer to a two-Judge Bench decision in Sushil Kumar v. Rakesh Kumar, [(2003) 8 SCC 673] wherein, while dealing with the pleadings of election case, this Court has held thus: -
"73. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order 8 Rule 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidence adduced on behalf of the appellant in this behalf in detail but merely rejected the same summarily stating that vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid."
27. The learned MACT seems to have misconstrued the intention of Sections 168 and 169 of the Act regarding procedure to be adopted while entertaining the claim petition. Since there was no denial of the duly issued insurance cover certificate and the same was placed in original on record and was sufficiently shown by evidence to be genuine to prove the fact pleaded by the claim-petitioners as well as the insured-motor vehicle owner, was proved, in effect, that ICICI, Lombard has insured the offending vehicle and the said insurance was valid and effective on the date of accident. However, in absence of any rebuttal of pleading and prima facie from the original insurance cover certificate nothing could be presumed against it's validity, ingenuiness etc. To the contrary, the ICICI, Lombard which did not deny the insurance cover certificate in question to be of their company, the seal and emblem has also not been denied. It is admitted that in the common course of business, Agents contact with the customers, complete all the formalities of getting filled up the entries in cover certificate, receive check of premium amount then issue the certificate to the customers/policy holders. It is manifest in original cover note no. MR 4792881 that all these common course of business of issuing insurance is done under Section 114 of Indian Evidence Act [Illustration (f)-That the common course of business has been followed in particular cases], the certificate is genuine.
28. The ICICI, Lombard is a company duly registered under the Companies Act and as such acts as corporate personality for the business of insurance. In the common course of it's business, it naturally have to maintain number of records pertaining to the processing the contract, while entering into with the insured.
29. Section 114 of the Indian Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
30. Therefore, it shall be presumed that the official work of entering into the contract of an insurance with the owner of the offending vehicle was duly performed and the common course of this business has been followed before issuing the insurance covernote to the owner.
31. It must be kept on consideration that every presumption is subject to rebuttal. The ICICI, Lombard, despite the fact it has reserved its right to verify the genuineness of the insurance covernote from its record filed in original by the owner of the offending motor vehicle did not do anything despite the fact that they could verify from their record.
32. But neither the facts were pleaded to assert the verification whether made, nor record was placed to show the insurance covernote fake or forged. Therefore, under Section 114 of the Evidence Act, 1872, illustration (g) would squarely be applicable in the present case. It provides that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Therefore, here is a strong ground of adverse inference to be drawn against the ICICI, Lombard and treating the insurance covernote genuine, which stands as an unrebutted fact.
33. It would be relevant here to see the dictionary meaning of the word 'genuineness'. As per the new concise Oxford English dictionary, the definition of 'genuineness' means not fake or counterfeit. As such, in the circumstance, discussed hereinabove, nothing was pleaded or shown in evidence. The insurance covernote produced in original by the owner of offending motor vehicle before learned court below being fake or counterfeit, unreal, pretending or bogus; as such, the insurance covernote in itself stands genuine.
34. In the foregoing paras, the facts of the case are discussed indicating the lack of pleading on the part of respondent-ICICI, Lombard before the court below, the MACT, while written statement in defence was filed. This should also be kept in mind that the matter, involved in the case in hand, is as to the genuiness of a contract of insurance, from which consequences flow not only under the contract but also from the statute namely the motor vehicles Act, 1988.
35. The case in hand relating to claim for compensation for death of third party in a motor accident is covered under the benevolent object of the Motor Vehicles Act, 1988.
36. Section 146 of the Motor Vehicles Act, 1988 makes a mandatory requirement of insurance against third party risk and provides that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter. Section 147 of the Act makes provision of the requirements of policies and limits of liability regarding the issuance of a policy who is an authorized insurer. Section 149 of the Act imposes a duty on the insurers to satisfy judgments and awards against persons insured in respect of third party risks. However, Section 149(2) gives some statutory defences in case there is a breach of terms and conditions under the policy by the insurer or negligence on the part of the third party himself. Even then, the Insurance Companies are placed under liability to pay of the compensation to the third party on behalf of the insured and have a right to recover from the insured. For this purpose, the authorized Insurance Companies used to enter into the contract with motor vehicle owner as against the third party risk.
37. In this regard, in the case of National Insurance Company Ltd. Vs. Swaran Singh & Ors. reported in [(2004) 3 SCC 297], Hon'ble Apex Court has held as under:
Right to and scope of defences available to insurer in terms of Section 149 (2) r/w Section 149 (7):-
"There cannot be any doubt or dispute that defences enumerated in Section 149(2) would be available to the insurance companies, but that does not and cannot mean that despite such defences having not been established, they would not be liable to fulfil their statutory obligation under Section 149(1) of the Act. Moreover, it has been held by the Supreme Court in no uncertain terms that the defence available to an insurance company would be a limited one and that an appeal by the insurer on the ground dehors those contained in Section 149 (2) would not be maintainable."
Section 149 (2) - Making out the defence under
(i) Onus of proof-
"The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is thus, required to establish the said breach by cogent evidence. Moreover, a bare perusal of the provisions of Section 149 of the Act leads to only one conclusion, that the usual rule is that once the assured proves that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability."
(ii) Breach of condition to be shown-
"Section 149(2)(a) opens with the words "that there has been a breach of a specified condition of the policy", implying that the insurer's defence of the action would depend upon the terms of the policy. The insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured, that is they must prove a wilful violation of the law by the assured. In some cases violation of criminal law, particularly, violation of the provisions of the Act may result in absolving the insurers but, the same may not necessarily hold good in the case of a third party. In any event, the exception applies only to acts done intentionally or "so recklessly as to denote that the assured did not care what the consequences of his act might be.
(iii) Causality: that damage suffered by victim flowed from breach, to be shown-
"Such a breach (as discussed above) on the part of the insured must be established by the insurer to show that not only that the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage the victim suffered flowed from the breach. That is, even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability toward the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Sections 149 (2) of the Act."
(iv) Degree of Proof-
"The degree of proof which would satisfy the aforementioned requirement, in addition to the facts and circumstances of each case, will depend upon the terms of contract of insurance. A contract of insurance also falls within the realm of contract. Thus, like any other contract, the intention of the parties must be gathered from the expressions used therein. In the event the terms and conditions of policy are obscure, it is permissible for the purpose of construction of the deed to look to the surrounding circumstances as also the conduct of the parties. The courts also readily apply the doctrine of waiver in favour of the insured and against the insurer. Whether a change of risk was so great as to avoid an insurance must always be a question of degree and a question of the opinion of the court in the circumstances of the case.
49. Such a breach on the part of the insurer must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.
110 (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act."
38. On the conjoint reading of provisions of Sections 146, 147, 149(2) of the Motor Vehicles Act alongwith Order VI Rule 4, Rule 6, Rule 8 and Order VIII Rule 4 and 5, this would be explicit enough that the ICICI, Lombard was under the burden of pleading specific facts in quite unambiguous, express words, sufficient to establish the contract of insurance not genuine which was manifestly genuine from the pleading and the document of insurance covernote produced by the insured offending motor vehicle and to make such defences in pleading which was available to it under Section 149(2) of the Motor Vehicles Act. Anything in this regard has not been done. The pleadings as made by respondent no. 1 in its written statement, paper no. 7-ka on bare reading is certainly gives an evasive denial of the contract of insurance.
39. In the present case, despite reserving its right to reply as to the fact of cover note certificate issued by it, the ICICI, Lombard neither had any amendment incorporated such fact after verification if any nor by giving further additional written statement of the Court which also signifies that even no verification as to the genuineness of insurance cover certificate produced in original on record by the insured, was ever made. This also signifies further that there was nothing wrong with the insurance cover certificate and the same was true, genuine and issued by respondent no. 1 itself.
40. After discussing the burden of pleading, the question is whether without pleading, any party can lead evidence, in my view the ICICI, Lombard could not be permitted to lead evidence beyond or contrary to or inconsistent with the facts placed in the written statement.
41. Section 101 of the Indian Evidence Act provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
42. The discussion made in the foregoing paras are with regard to the burden on respondent no. 1 who was defending the claim of the claim-petitioners before the court below, learned MACT, to plead specific fact of fraud or ingenuineness with all particulars if it was desirous to come out of the liability arising under the contract of insurance as against the third party risk with the insured.
43. In the absence of any such pleading, in my opinion, Section 101 of the Evidence Act dis-entitles the defendant to lead any evidence. Section 3 of the Evidence Act, 1892 defines the 'Fact' means and includes that:
"(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious. Illustrations:
(a) ...........................
(b) ...........................
(c) ..............................
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact."
44. Further defines the facts in issue is expression which means that any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.
45. Evidence means all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence.
46. From the definition as given under Section 3 of the Evidence Act and discussions made in the preceding paras, it can be said that in the present case, in relation to the insurance covernote issued by ICICI, Lombard, produced in original by the owner of the offending motor vehicle, there being no fact in written statement of the respondent-Insurance Company, of being the same ingenuine, forged or fake nor denial of its genuineness, no fact of issue arisen. Genuineness of the insurance covernote deserves to be presumed by drawing adverse inference against the respondent-Insurance Company. However, the learned court below, the MACT, if with a view to inquire into the matter under Section 168 of the Act permitted to lead evidence and required the respondent to do so in relation to whether the offending motor vehicle was insured at the relevant time of accident by the ICICI, Lombard. The respondent failed to avail the said opportunity properly in showing the ingenuineness of the covernote by reasonable and satisfactory evidence.
47. Herein in the present case, the issue no. 2 is to the effect that whether at the time of accident, the offending motor vehicle was insured by respondent no. 1-ICICI, Lombard and the insurance was effective at the relevant point of time. There was no pleading as to the insurance cover certificate submitted by the owner of the offending motor vehicle being forged or fake. The story of some insurance covernote having been lost from one of the Agent of the respondent-Insurance Company was never pleaded before the court below. Without any such pleading, the Insurance Company could not lead evidence as to the loss of insurance cover certificate for setting the insurance covernote presented by the owner as forged. The Insurance Company at the stage of evidence, produced an affidavit of its witness. DW-2 one Rajesh claiming himself Manager (legal), ICICI, Lombard, General Insurance Company Ltd., Lucknow which is as under:
"eSa fd jkts'k eSustj yhxy vkbZ0lh0vkbZ0lh0vkbZ0 yksEckMZ tujy b';ksjsUl da0 fy0] y[kuÅ l'kiFk c;ku djrk gwW fd& /kkjk 1& ;g fd 'kiFkdrkZ dh dEiuh ds ,tsUV ekby LVksu QkbusfUl;y lfoZlst&3, FkMZ Q~yksj ,0,Q0 Vkoj] ikdZ jksM] y[kuÅ FksA /kkjk 2& ;g fd doj uksV la[;k ME 4792881 dqN vU; dojuksVksa ds lkFk 'kiFkdrkZ ds ,tsUV ls [kks x;s Fks ftlds laca/k esa mlus 'kiFkdrkZ dh dEiuh dks lwpuk Hksth FkhA /kkjk 3& ;g fd doj uksV la[;k ME 4792881 u rks 'kiFkdrkZ dh dEiuh }kjk tkjh fd;k x;k gS u gh ml ij dksbZ izhfe;e dEiuh dks feyk gS rFkk u gh dksbZ chek ikfylh tkjh dh xbZ gSA /kkjk 4& ;g fd pwWfd doj uksV la[;k ME 4792881 u rks tkjh fd;k x;k gS u gh dksbZ izhfe;e izkIr fd;k x;k gS rFkk u gh dksbZ chek fd;k x;k gS bl dkj.k 'kiFkdrkZ dh chek dEiuh dh dksbZ ftEesokjh ugha gSA /kkjk 5& ;g fd 'kiFkdrkZ ds dk;kZy; esa vfuy 'kqDyk uke dk dksbZ deZpkjh ;k ,tsUV ugha gSA"
48. The said affidavit, even if read, does not disclose particularly any Agent with sufficient identity from the possession of whom the insurance covernote in question no. ME 4792881 alongwtih some other covernote were lost. It is also not specifically alleged that when they were lost and what action in this regard, the company had taken. However, this affidavit was submitted as statement in chief during examination before the court when the deponent was not produced before the court for cross examination so as to testify the correctness. The owner on affidavit has countered the allegations made by the said deponent. The learned court below without any specific pleading to the said effect erred in relying the evidence of the said affidavit and thereafter erred in not calling him for cross-examination so as to test the veracity of the allegation of forged insurance covernote certificate which was in original filed by the owner-appellant before it. There was no circumstance and reasons to believe on the said affidavit unless the identity of the deponent and veracity of his depositions could have been examined in cross-examination. The deposition made by the aforesaid affidavit in evidence was of matter extraneous to the facts on record of the case before the learned Motor Accident Claims Tribunal.
49. In the absence of any pleading as to ingenuineness of the insurance covernote produced in original by the owner-appellant before the court simply an untestified statement of so-called Rajesh, Manager Legal regarding loss of several covernote including one produced by the owner from the Agent of undisclosed identity could not be believed. The owner has successfully discharged not only his burden of pleading but also proving the insurance covernote issued by the appellant in their favour.
50. When there was no material in evidence adduced by the ICICI, Lombard despite the fact not pleaded, the same was brought on record to believe the story of loss of covernote. But how this could be believed when there was no First Information Report to the police for any apprehended misappropriation of insurance covernote alleged to have been lost from the possession of their agent, was lodged, even the Agent from whose custody and possession the covernote is said to be lost, was not called for deposition before the court or subjected to any enquiry, no routine record of issuance of blank covernote to various Agents were submitted so as to show reasonably that the insurance covernote in question submitted by the owner-appellant was one of such blank insurance covernote which are alleged to have lost. No record registering the authorized Agent of the respondent no. 1 was produced before the court so as to deny the agent who insured on behalf the respondent-Insurance Company to the owner with regard to the offending vehicle. The learned court below without recording any cogent and sufficient reason held the original insurance covernote submitted by the owner-appellant and believed the legless story of loss of blank insurance covernote of respondent-insurance company.
51. The respondent no. 1-ICICI, Lombard failed to discharge not only the burden of pleading but also to show any reasonable ground to believe on the story of the insurance covernote to be ingenuine. On the other hand, no account books are shown to deny the fact of receiving the cheque of Rs. 2900/-, on account of premium dated 26th February bearing account no. 319 given by the insured-motor vehicle owner at the time of getting insurance coverage.
52. Hon'ble the Supreme Court in the case of New India Assurance Company Ltd. Vs. Rula and Others reported in [(2000) 3 SCC 195] in para 13 has observed as under:
"This decision, which is a three-Judge Bench decision, squarely covers the present case also. The subsequent cancellation of the Insurance Policy in the instant case on the ground that the cheque through which premium was paid was dishonoured, would not affect the rights of the third party which had accrued on the issuance of the Policy on the date on which the accident took place. If, on the date of accident, there was a Policy of Insurance in respect of the vehicle in question, the third party would have a claim against the Insurance Company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of Insurance Policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party."
53. Therefore, once the cheque is issued and received by the agent, no account book or any other document was placed before the Court to show that it was not received to them, would not make any defence towards the liability as against the third party. Since respondent no. 1 could not establish that on the date of accident, the insurance policy placed on record in the MACT in original was not genuine, therefore, the insurance covernote certificate which has the effective date from 26.07.2007 to 25.07.2008 shall cover the third party risk occurred by accident happened on 27.02.2007. The third party would have a claim against the Insurance Company and the owner of the vehicle. The Insurance Company-ICICI, Lombard would have to indemnify the insured in respect of the claim adjudged by the court against the owner with regard to the third party risk.
54. The First Appeal From Order No. 286 of 2010 (Kamlawati and Others Vs. ICICI, Lombard and Others), on the basis of discussions made herein-above, deserves to be allowed in favour of appellants.
Appeal for enhancement of compensation amount:-
55. In connected appeal No. 737 of 2010, (Nisha Verma and Others Vs. ICICI, Lombard and Others), award has been challenged to the extent of seeking enhancement of the amount of award. The learned Motor Accident Claims Tribunal has decided the quantum of compensation by taking the following main grounds for enhancement of the compensation:
(a) The learned court below did not appreciate the oral and documentary evidences with regard to the income of the deceased available on record and also in holding that there is no evidence on record.
(b) The learned court below notionally took the income of the deceased as Rs. 15,000/- per annum, as given in IInd Schedule of 163-A of the Motor Vehicles Act.
(c) The Notional income, as given in IInd Schedule of 163-A of the Act, should be taken for working out the compensation to asses the income of a person who is a non-earning person whereas in the present case the deceased was an earning person.
56. Learned counsel for the claimant-petitioners could not establish the exact age of the deceased, therefore, taking into consideration the age of deceased 30 years, as stated in the claim petition, and the age as stated in the post-mortem report 35 years, learned MACT held the age of deceased on the date of accident between 31 to 35 years. Accordingly, the multiplier '17' was ascertained. Since the income of the deceased at the time of accident could not be established by the claim-petitioners, therefore, the learned MACT took the help of IInd Schedule appended with Section 163-A of the Act and notionally fixed the annual income of the deceased at Rs. 15000/- per annum, deducting 1/3 of the said annual income which may be spent by the deceased over himself. The amount whereupon the claim-petitioners were depend was worked out at Rs. 10,000/- which is the multiplicand. When the multiplier '17' is multiplied with it, an amount of Rs. 1,70,000/- came as compensation to be awarded. In addition thereto Rs. 1,98,107/- as medical expenses, the total amount of compensation comes out as Rs. 3,68,107/-. The court below further added Rs. 2000/- for funeral expenses and Rs. 5000/- added in the head of loss of consortium and awarded Rs. 3,75, 107/- as compensation.
57. In the case of National Insurance Company Limited Vs. Pranay Sethi and Others reported in [AIR 2017 SC 5157], the guideline given by Hon'ble Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and Another reported in [AIR 2009 SC 3104], is followed for working out the compensation. Further, Hon'ble Apex Court in the case of Pranay Sethi's (supra) has guided to add the amount on account of future prospects.
58. Learned counsel for the appellant claims enhancement of the award in accordance with the guidelines and norms given in the aforesaid two judgments by Hon'ble Apex Court.
59. To the contrary, learned counsel for the respondent-ICICI, Lombard and the owners of the offending motor vehicle argued that for working out the compensation, the law as was prevailing at the time of accident, would be applicable and guidelines given in subsequent judgments by Hon'ble Apex Court in the case of Sarla Verma (supra) and Pranay Sethi (supra) would not be applicable for enhancement of the amount of award.
60. A Division Bench of this Court in the case of U.P.S.R.T.C. Vs. Smt. Kamla Bharvava and Others reported in [2018 (36) LCD 880], in para 24 of the judgment held has under:
"Thus, the contention of the counsel for the respondent on the strength of the judgment of the Apex Court in the case of Kerala State Electricity Board Kerala State Electricity Board (Supra) is not sustainable for the reasons; firstly that the claimants are entitled for future prospect on the date of accident being part of compensation, and secondly the law declared by the Supreme court is law of the land and would be applicable to all pending proceedings unless the apex court declares its applicability prospectively. The judgement of the Apex Court in the case of Pranay Sethi (Supra) declares the limits of compensation to be given in matters arising out of insurance claims. The declaration is by a Constitution Bench and can be clearly co-related to Articles 141, 142 and 144 of the Constitution of India. It will, therefore apply to all the pending proceedings either before this Court or before the Tribunal and to that extent it would be binding. The Apex Court has nowhere indicated that the said judgement would apply only in cases relating to accidents having occurred after the date of the judgement. In the absence of any such indication, it is not for the High Court to deny the benefit of the said judgement in pending cases including the present one."
61. Further, the Hon'ble Apex Court in the case of Pranay Sethi (supra) held that deduction for personal and living expenses of the deceased should be in accordance with the number of dependents of the deceased. In the present case, number of dependents is '4', therefore, the deduction for personal and living expenses of the deceased should be 1/4. Furthermore, determination of selection of multiplier is to be based on the income established by legal heirs of the deceased for future prospects. The Hon'ble Apex Court held that in the compensation conventional amount must be added for the loss of estate, loss of consortium and for funeral expenses. Reasonable figures for loss of estate, loss of consortium and funeral expenses should be Rs. 15000/-, Rs. 40,000/- and Rs. 15,000/-.
62. Since the claim-petitioners, appellants in FAFO no. 737 of 2010 have stated in their petition that the deceased was self employed and it is proved on evidence that he was a person between the age of 31 to 35 years, the future prospect may be added taking help of the conclusion made in para 61 (IV) by Hon'ble Apex Court in the case of Pranay Sethi (supra) which is as under:
"In case the deceased was self-employed or on a fixed salary,an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
63. On perusal of record, it appears that in the claim petition, the petitioners have stated that the deceased was having his own business of agriculture and business and there is no specific detail in the petition, as such, evidence is also not on record to this effect. However, the oral evidence given by the claim-petitioners establishes the facts as stated in the petition that the deceased was self employed but so far as the income of the deceased is concerned, it was also not proved by evidences. There is no documentary evidence on record as to the income Therefore, the learned court below did not erred in taking income of the deceased as given in IInd Schedule appended with Section 163-A of the Motor Vehicles Act at Rs. 15,000/- in case of fatal accident where the earning of the deceased could not be established by evidence.
64. Therefore, proceeding for determination of compensation in accordance with the guidelines given by Hon'ble Apex Court in the case of Sarla Verma (supra) and in the case of Pranay Sethi (supra), first of all we have to take the income of the deceased as taken by the learned court below as correct since the claim-petitioners could not establish by evidence any income on the basis of evidence. The age of the deceased as taken by the learned court below is also deserves to be relied on as there is nothing on record to establish by evidences against that.
65. Now proceeding with the aforesaid guidelines of Hon'ble Apex Court, first of all, a multiplicand based on income is to be ascertained. If the income is Rs. 15000/- per annum and the deceased was self employed, then 25% of the same is to be added therein as future prospects, it means Rs. 15000/- and its 25% i.e. Rs. 3750/-. Total amount would be Rs. 18,750/-. Further in accordance with the number of dependents of deceased i.e. to say '4', the expenses of personal living of the deceased would come to Rs. 18,750/4=Rs. 4,687.50/-. This amount if deducted from the total income, the amount comes out Rs.14,062.50/-. This would be the multiplicand for the purpose of working out the compensation by using corresponding multiplier '16', in accordance with the age of deceased, as guidelines given by Hon'ble Apex Court in the case of Sarla Verma (supra). Total amount of compensation including future prospects @ 25% would be Rs. 14062.50x16=Rs.2,25,000/-. The amount under conventional heads i.e. loss of estate, loss of consortium and funeral expenses would be added for working out compensation which would be Rs. 2,25,000+15,000+40,000+15000=Rs.2,95,000/-. It would be the total amount of compensation. Wherein the amount of medical expenses as found established by learned MACT on the basis of evidences to the tune of Rs. 1,98,107/- will be added. It would be Rs. 2,95,000+1,98,107=Rs.4,93,107/-. As such, the total amount of compensation would be Rs. 4,93,107/- which would be payable alongwith interest chargeable @ 7% per annum from the date of petition till actual date of payment.
For the reasons discussed herein-above, the First Appeal From Order No. 737 of 2010 deserves to be allowed.
ORDER (A) The First Appeal From Order No. 737 of 2010 (Smt. Nisha Verma and others Vs. ICICI, Lombard and Others) is allowed. The appellants of the said appeal are entitled to have an enhanced amount of compensation to the tune of Rs. 4,93,107/- with interest @ Rs. 7% per annum, chargeable from the date of petition till the date of actual payment. Respondent no. 1-ICICI, Lombard is directed to pay off the entire awarded amount within one month from the date of judgment.
(B) Statutory deposit made by the appellants shall be returned to them.
(c) The First Appeal From Order No. 286 of 2010 (Kamlawati and Others Vs. ICICI, Lombard and Others) is allowed. The judgment and awards dated 04.02.2010 and 11.02.2010 respectively passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court no. 1, District Faizabad in Claim Petition No. 66 of 2007 (Nisha Verma and others Vs. I.C.I.C.I. Lombard and Others) are modified in terms of amount of compensation passed in FAFO No. 737 of 2010 (to the tune of Rs. 4,93,107/- alongwith interest @ Rs. 7% per annum, chargeable from the date of petition till the date of actual payment). The ICICI, Lombard is directed to pay off the entire compensation amount, as directed above within one month from the date of judgment in appeal to the claimants-respondent nos. 2 to 5. Failing which, the learned Motor Accident Claims Tribunal is directed to recover and pay off the awarded amount under the order of appeal to the claimants-appellants in FAFO no. 737 of 2010. Rest of the terms as to the disbursement of the compensation amongst the claimants-appellants shall remain the same/mutatis mutandis as given in the award of learned court below-MACT.
(D) The statutory deposit alongwith the other deposit, if any, made by the appellants, shall be returned to them.
(E) The learned executing court (the Motor Accident Claims Tribunal concerned) is further directed that respondent no. 1-ICICI, Lombard if fails to comply with the order passed in FAFO No. 286 of 2010 and FAFO no. 737 of 2010, within the prescribed time by this Court, it shall proceed to execute the award to recover the awarded amount for payment to claimant-respondent nos. 2 to 5, as modified by this Court in FAFO No. 737 of 2010 and FAFO No. 286 of 2010 alongwith interest @ 7% per annum, chargeable from the date of petition till actual date of payment.
(F) Lower court record be sent back.
Order Date :18/02/2019 kkv/ [Vikas Kunvar Srivastav,J.]