Delhi High Court
Future General India Insurance Co. Ltd. vs Santosh Kumari & Ors. on 25 November, 2014
Author: Jayant Nath
Bench: Jayant Nath
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25.11.2014
+ MAC.APP. 80/2013
FUTURE GENERAL INDIA INSURANCE CO. LTD...... Appellant
Through: Ms.Suman Bagga with Mr.Saral
Chaturvedi, Advocate
versus
SANTOSH KUMARI & ORS. ..... Respondents
Through: Mr.Amit K.Pandey, Advocate for
Respondents No.1 to 5.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. By the present appeal the appellant seeks to impugn the Award dated 6th November, 2012.
2. The brief facts which led to filing of the claim petition are that on 17th October, 2010, number of persons had gone to watch the burning of effigies of Ravan on the Dussehra festival. They watched the mela at Nehru Place and sat in the Champion vehicle. When the vehicle reached Crown Plaza Hotel Today, it overturned due to the rash and negligent driving of the vehicle. One of the occupants, namely, Jagdish Lal expired. Three others were injured. Hence, four claim petitions were filed. I am dealing with the portion of the award pertaining to the claim petition filed by the dependents of Jagdish Lal.
3. On compensation, the Tribunal awarded a total compensation of Rs.5,95,660/- , details of which are as follows:-
Loss of Dependency Rs.5,55,660/-
MAC App.80/2013 Page 1 of 6
Funeral Expenses Rs. 10,000/-
Love & Affection Rs. 10,000/-
Loss of Consortium Rs. 10,000/-
Loss of Estate Rs. 10,000
Total Rs.5,95,660/-
4. The learned counsel appearing for the appellant submits that the vehicle was a goods vehicle and all the passengers were travelling in the vehicle as gratuitous passengers. He submits that there is a clear violation of the terms and conditions of the Insurance Policy. The appellant had no statutory liability to indemnify the insured. She relies on the judgments of the Supreme Court in National Insurance Co.Ltd v. Rattani & Ors. AIR 2009 Supreme Court 1499 and National Insurance Co.Ltd. v. Cholleti Bharatamma & Ors. I (2008) ACC 225 (SC) to contend that there is no liability on the appellant company under Section 147 or Section 149 of the Motor Vehicles Act, 1988 and they have no addition in the policy covers for carrying passengers with the goods vehicle.
5. Accordingly the appellant is not liable to pay the compensation amount. She further submits that even otherwise, the compensation is on the higher side as the deceased was 59 years old. The Tribunal has wrongly assessed the income of deceased to calculate loss of dependency @ Rs.5278/- per month equivalent to that of unskilled worker and enhanced the same @ 30% towards future prospects. This enhancement, it is submitted, is improper.
MAC App.80/2013 Page 2 of 66. Learned counsel appearing for the respondents No.1 to 5 relied upon the judgment of the Supreme Court in the case of Manager, National Insurance Co. Ltd. v. Saju P.Paul and another 2013 ACJ 554 to contend that in the said judgment of the Supreme Court while giving the judgment has directed the Insurance Company to pay the compensation amount and have the recovery rights from the owner and driver of the offending vehicle. He submits that the said judgment would be applicable to the facts of this case.
7. He also submits that there were Claim Petitions filed by all four i.e. including those injured. All four claim petitions were allowed by a common award. However, he submits that the appellants have chosen to file the appeal against the present claim petition but has made payments of the money in the other three claim petitions to the claimants.
8. In the present case, as per the evidence by way of affidavit of PW3 Ms.Kavita on 17th October, 2010, they were travelling in the tempo Mahindra Champion. At Crown Plaza Hotel, Opposite Maa Anand Mai Marg, New Delhi, the tempo suddenly turned over due to the rash and negligent manner in which the driver was driving. In the cross examination it was stated that they were standing in the goods vehicle and there were more than 10 persons in the vehicle.
9. It is clear that the passengers were travelling as gratuitous passengers on a goods vehicle. In National Insurance Co.Ltd v. Rattani & Ors.(supra ), the Supreme Court concluded as follows:-
"We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of MAC App.80/2013 Page 3 of 6 the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants."
10. As the passengers were all gratuitous passengers travelling on a goods vehicle, clearly there was a breach of terms of the insurance policy.
11. However, there is merit in the contention of the learned counsel for the appellant regarding future prospects. The deceased was 59 years old, as per evidence of his son PW-1. Keeping into account the facts and circumstances of the case, in my opinion, no future prospects are applicable. In the case of Rajesh & Ors. vs. Rajbir Singh & Ors. (2013) 9 SCC 54, it has been held that no future prospects are to be granted for those above the age of 60 years. The loss of dependency would now come to Rs.4,27,464/- [(5278-1/4) x12x9].
12. The total compensation would come to Rs.4,67,464/- as follows:-
Loss of dependency Rs.4,27,464/-
Funeral expenses Rs.10,000/-
Love and affection Rs.10,000/-
Loss of consortium Rs.10,000/-
Loss of Estate Rs.10,000/-
Total Rs.4,67,464/-
MAC App.80/2013 Page 4 of 6
13. Now the issue is as to who would be liable to pay compensation.
14. In Manager, National Insurance Co. Ltd. v. Saju P.Paul and another(supra), the Supreme Court in para 25 held as follows:-
"25. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur (2004) 2 SCC 1 and Challa Bharathamma (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along-with accrued interest. The insurance company (Appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma (2004) 8 SCC 517."
15. In the present case in the facts and circumstances of this case I am persuaded to pass similar order as the Supreme Court in the case of MAC App.80/2013 Page 5 of 6 Manager, National Insurance Co. Ltd. v. Saju P.Paul and another(supra). Firstly, the entire award amount is lying deposited in this Court pursuant to the interim order dated 28 th January, 2013. Further, there were four claim petitions filed. Three of the claimants have received the awarded amount. The compensation amount is not too large given the economic background of the claimant, in my opinion, they should not be made to recover the money from the owner of the offending vehicle. I follow the directions passed by the Supreme Court in the case of Manager, National Insurance Co. Ltd. v. Saju P.Paul and another(supra) and direct that the amount deposited in the Court along with upto date interest be released to the claimants i.e. respondents No.1 to 5 proportionately in the same manner, directed by the Tribunal. Recovery rights are granted to the appellant against respondents No.6 and 7, the owner and driver of the offending vehicle. 11.
16. Accordingly, the award amount lying deposited in the Court with proportionate interest to be released to the claimants as per the present orders of the Award. The balance be refunded to the respondents.
17. The appeal stands disposed of.
JAYANT NATH, J NOVEMBER 25, 2014/ks MAC App.80/2013 Page 6 of 6