Delhi High Court
The New India Assurance Co. Ltd. vs Kumud Devi & Ors. on 7 August, 2012
Author: G.P. Mittal
Bench: G.P.Mittal
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th August, 2012
+ MAC. APP. No.520/2010
THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. D.D. Singh, Advocate
Versus
KUMUD DEVI & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Advocate for
the Respondents No.1 to
7(Claimants).
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Co. Ltd. takes exception to the award of compensation of Rs.7,66,000/- granted by the Motor Accident Claims Tribunal(the Claims Tribunal) for the death of Bhagwan Paswan who died in a motor vehicle accident. The grounds are:
(i) That the offending vehicle DL-1LE-9194 (Tata 407) did not possess a fitness certificate on the date of the accident; the Appellant was, therefore, not obliged to indemnify the insured.MAC. APP. No.520/2010 Page 1 of 4
(ii) In a Petition under Section 163-A of the Motor Vehicles Act, 1988(the Act), the compensation towards loss of dependency and non-pecuniary heads could be awarded only as per the structured formula provided in Schedule II to the Act.
2. As far as the first contention is concerned Section 149(2) enables an insurer to avoid payment of compensation under any judgment or award passed in a Petition under Section 166 or under Section 163-A of the Act on the grounds as mentioned therein. Sub- section (2) of Section 149 is extracted hereunder:
"Section 149:-
(1) ...............
(2) No sum shall be payable by an insurer under sub-
section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(i) a condition excluding the use of the vehicle-MAC. APP. No.520/2010 Page 2 of 4
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organized racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving y a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained y the non-disclosure of a material fact or by a representation of fact which was false in some material particular."
3. Even if the vehicle did not possess any fitness certificate on the date of the accident, none of the sub-clauses extracted above empowers the Insurance Company to avoid any judgment or award passed by the Claims Tribunal. The first contention is without any substance and the same is accordingly rejected.
4. Coming to the second contention, the case is covered by a judgment of this Court in „Anarkali & Anr. v. Raj Kumar & Anr.‟ (MAC. APP.341/2012) decided on 11.04.2012 wherein relying on MAC. APP. No.520/2010 Page 3 of 4 Oriental Insurance Company v. Hansrajbhai v. Kodala, (2001) 5 SCC 175, Deepal Girishbhai Soni v. United India Insurance Company Limited, (2004) 5 SCC 385 and Oriental Insurance Company Limited v. Meena Variyal (2007) 5 SCC 428, this Court held that in a Petition under Section 163-A, the loss of dependency as well as the compensation under non-pecuniary heads has to be awarded strictly in accordance with Second Schedule.
5. Following Schedule II, the loss of dependency comes to Rs.4,16,000/- (39,000/- x 2/3 x 16).
6. In addition, the Claimants are entitled to a sum of Rs.5,000/-
towards loss of consortium, Rs.2,000/- towards loss to estate and Rs.2,500/- towards funeral expenses. The overall compensation comes to Rs.4,25,500/-.
7. The compensation is thus reduced from Rs.7,66,000/- to Rs.4,25,500/-.
8. The excess amount of Rs.3,40,500/- along with proportionate interest and the interest accrued, if any, during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.
9. The Appeal is allowed in above terms.
10. Statutory amount of Rs.25,000/- deposited shall be refunded to the Appellant Insurance Company.
11. Pending Applications stand disposed of.
(G.P. MITTAL) JUDGE AUGUST 07, 2012 pst MAC. APP. No.520/2010 Page 4 of 4