Full Text
HIGH COURT OF DELHI
Date of Decision: 4th September, 2024
AAS MOHAMMAD .....Appellant
Through: None.
Through: Mr. Rajeev M Roy & Mr. P.
Srinivasan, Advs. for applicant/R-3.
JUDGMENT
1. This is an application moved on behalf of the applicant/ respondent No.3-Insurance Company (hereinafter referred as the ‘applicant’) for condonation of delay of 69 days in filing the review petition.
2. For the reasons stated in the application and in the interest of justice, the application is allowed and delay in filing the review petition is condoned.
REVIEW PET. 323/2024& CM APPL. 51399/2024
3. The applicant seeks review of the judgment dated 17.05.2024 passed by this Court in MAC. APP 379/2023 and CM APPL. 40651/2023 titled as „Aas Mohammad v. Manoj Kumar‟.
4. No one is present for the non-applicant/claimant injured despite sending advance notice to his counsel through email.
5. Having heard the learned counsel for the applicant and on perusal of the record, there are three limbs to the instant review: first is about the review of the findings recorded by this Court setting aside the impugned award dated 21.11.2022 in so far as it held that the cover note purportedly produced during the course of proceedings was not genuine and fabricated.
6. At the outset, this Court finds that there is no error apparent on the face of the record to review such findings and thereby exonerate the applicant from shouldering the responsibility of making payment of the compensation to the non-applicant/claimant injured under the cover note/policy. It is suffice to point out that this Court vide judgment dated 17.05.2024 made the following observations in holding that the applicant insurance company is liable to make payment of compensation to the non-applicant/claimant injured:
Hon'ble High Court of Delhi in the case of Assurance Company Limited Vs. Kashmiri Lai, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the insurance company with a cost of Rs.5,000/-. R-3 shall inform the claimant (s) and their counsel through registered post that the cheques of the awarded amounts are being deposited so as to facilitate them to collect their cheques.”
8. It may be reiterated here that both the driver and registered owner of the offending vehicle never contested the claim petitions and insofar the Issue No.1 with regard to fixing of the responsibility for causing the accident is concerned, the finding of the learned Tribunal that the motor accident occurred due to rash and negligent driving of the driver of the offending vehicle has not been assailed and is thus final.
9. Further, no evidence was led even by the Insurance Company so as to prove that the policy of the insurance purportedly issued in favour of the registered owner with regard to the offending vehicle was forged or fabricated. The claim petitions by the two claimants/injured persons were instituted on 29.03.2016 and the proceedings/trial concluded in approximately two years. On the other hand, the MACP No. 136/2016 by the claimant/injured Aas Mohd. was also instituted on 29.03.2016 but the trial concluded later culminating in passing of judgment cum award on 29.10.2022, probably on account of the Courts/Tribunals not functioning full-fledged during the intervening COVID-19 pandemic period. The digitized Trial Court Record reflects that the appellant/insurance company moved an application seeking to adduce additional evidence on the ground that policy of insurance was forged and fabricated, which was allowed vide order dated 31.10.2018 by the learned Tribunal and accordingly two witnesses were examined by the insurer company being R-3W-1/Amit Kumar, its Assistant Manager (Legal) and R-3W-2/Ms. Hreeshika Bhargava its Field Officer/Legal Officer on 25.04.2019 and 07.11.2022.
10. The aforesaid peculiar facts and circumstances beg the question as to whether the findings about the validity of the policy of insurance purportedly issued in respect of offending vehicle for the period from 05.11.2015 to 04.11.2016 operated as constructive res judicata or issue estoppel upon the decision in the third claim petition of Aas Mohd. bearing MACP. No. 136/2016.
11. It would be apposite to reproduce the findings recorded by the learned Tribunal in MACP No. 136/2016 in giving rise to MAC APP No. 379/2023 instituted by the appellant Aas Mohammad, which reads as under:- “18. It has been emphatically contended on behalf of respondent no. 3 that the Insurance cover note, Ex. R3W1/P[1] is forged and fabricated. In its written statement, respondent no. 3 had categorically averred that it is yet to get the copy of Insurance policy and confirmation about its validity. When it was revealed that the Insurance cover note annexed with the chargesheet is fake, forged and fabricated, it had filed an application seeking opportunity to adduce RE which was allowed vide order dated 31.10.2018. Thereafter, respondent no. 3 had examined Sh. Amit Kumar, Asstt. Manager, Legal as R3Wl and Ms. Hreeshika Bhargava, Legal Officer as R3W[2] who categorically deposed that the offending Tractor was never insured by respondent no. 3. The intermediary name codes mentioned on the cover note do not pertain to respondent no. 3. Respondent no. 3 had also written a letter dated 16.11.2018 to respondent no. 2/ owner of the offending Tractor whereby he was informed that the purported cover note was never issued by it. A complaint dated 12.11.2018 was also lodged with DCP, New Delhi District about the use of forged and fabricated Insurance cover note. Respondent no. 2 did not respond to letter dated 16.12.2018, Ex. R3W2/l. The original postal receipt dated 17.11.2018 has also been filed by respondent no. 3 whereby, letter dated 16.11.2018 was dispatched to respondent no. 2. Accordingly, adverse inference has to be drawn against respondent no. 2. Respondent no. 3 is not liable to pay any compensation to the petitioner as the offending Tractor was not insured by it.
19. The Tribunal is of the considered view that it has been established by respondent no. 3 that it had written letter dated 16.11.2018, Ex. R3W2/1 to respondent no. 2 which was dispatched vide registered post against postal receipt dated 17.11.2018, vide which, respondent no. 2 was informed that the offending Tractor owned by him was not insured with it and the purported cover note was a fabricated document. He was requested to produce the original cover note before the Tribunal. However, neither respondent no. 2 replied to the said letter, nor he produced the original cover note before this Tribunal. He also did not adduce any evidence to establish that the offending Tractor was infact insured with respondent no. 3 and the Insurance was valid on date of the accident. In addition to this, a perusal of the Insurance cover note, Ex. R3W1/P[1] shows that the spellings of words 'Connaught Place, New Delhi' are incorrect and 'Coughnat Palace, New Dehli' have been written which is highly unlikely as respondent no. 3 is a big reputed corporate which is not expected to issue cover notes containing such glaring mistakes. It has also been stated by R3WI that respondent NO. 3 never uses the words 'Original Insured' on 'any of its stamps as is appearing on purported cover note, Ex.: R3Wl/P[1]. Therefore, it is held that the offending Tractor was not insured with respondent no. 3, as on the date of the accident.
12. Unhesitatingly, this Court finds that the aforesaid findings of the learned Tribunal cannot be sustained in law since the issue of validity of policy of insurance was never agitated in the two earlier MACPs bearing Nos. 137/2016 and 135/2016, which were decided vide common judgment-cum-award dated 21.07.2018, which were in respect of the same vehicular accident involving three claimants excluding appellant Aas Mohammad.
13. At this juncture, it would be apposite to refer to the testimony of R3W[1] Mr. Amit Kumar, Assistant Manager (Legal) examined on 25.04.2019 in MACP No. 136/2016. In his examination-in-chief, he produced his authority letter marked Ex.R3W1/1 authorizing him to depose on behalf of the Insurance Company and produced the legal notice dated 16.11.2018 Ex.R3W1/2 purportedly sent to the driver and the registered owner of the offending vehicle besides the police complaint along with a copy of the fake and forged insurance cover note Mark ‘A’ (colly) (2 pages). It would be expedient to reproduce the crossexamination of R3W[1] Mr. Amit Kumar, which goes as under:- “The fact about fake cover note came to my notice in the month of October, 2018. I have been working in this company since August 2017. I can not tell as to how the policy or the cover note has been issued. Vol. It pertains to Operation Department. It is correct that we intimated to the dealing counsel about fake cover note based on which notice to the owner was sent by him. It is correct that I am conversant with the contents of the affidavit Ex. R3W1/A which are true and correct to my knowledge, based on company records. At this stage, the witness is shown the copy of cover note filed with the petition and after seeing the same, the witness states that the cover note, bears a different stamp- which does not belong to our company as the stamp of the company also contains the branch address of the Issuing office. The above cover note on record shown to the witness is Ex. R3W1/P[1]. The stamp shown to the witness on this cover note is at encircled portion at point A. Vol. The genuine stamp of the company is appearing on document Mark A above. At this stage, Ld. Counsel for the petitioner has shown to the witness above cover note Ex. R3W1/P[1] and the witness admits that one other stamp of a different pattern is also there at point B on this document and in that stamp, the registration number (Reg. No.) of the company as 8186 is mentioned, but the witness submits that even the stamp as per his knowledge does not pertain to their company as he had never seen any stamp in the name of company in that pattern. It is wrong to suggest that the above cover note Ex. R3W1/P[1] belongs to our company and the stamp as well as logo in this document are genuine and belong to our company. Vol. Even the spelling of "Connaught Place" are not correctly written/printed in this document as "Connaught" has been written as "Coughnat". Further, Vol. That even the words "original insured" are never there in any stamp of the company. Since I had joined the company in the year 2015 (in reply to court query, the witness states that the pattern and stamps remain the same and he can say that even in the year 2015, the stamps appearing on Ex.R3W1/P[1] were not in use). The company received the summons on 10.05.2016. I do not remember whether any investigation of the owner was ever conducted by our company or submitted with the company. It is wrong to suggest that I am deposing falsely. XXX on behalf of R-l and R-2. Nil. Opportunity given.”
14. It would further be apposite to refer to the crossexamination of R3W[2] Ms. Hreeshika Bhargava, Legal Officer, recorded on 07.11.2022 that goes as under:- “I cannot tell when it came to the notice of the company that the cover note in question is fake. I do not know whether any notice was sent to the owner of the vehicle in question by our company regarding fake cover note. No outcomes of criminal proceedings regarding fake cover note has yet been filed before the Hon'ble Court by our company. I have no personal knowledge about the culprits who has issued the fake cover note has been arrested or not. I have no knowledge whether any complaint or petition has been filed by our company before the Ld. MM regarding the fake cover note. I have no knowledge whether any written information received regarding fake cover note from the company office situated at Shaheed Jeet Singh Marg has been filed on record or not. Today, I have not filed any written information from the aforementioned office. (Vol. Before filing affidavit, we confirm intra company about genuineness of policy cover note). I joined this office in the year 2020. I cannot tell who was posted as Branch Manager in the year 2015 at the Issuing Office and I cannot recognize his signatures of the person who had issued the fake cover note, It is wrong to suggest that the cover note belongs to our company is genuine and we are denying the same in order to evade the liability, It is wrong to suggest that I am deposing falsely” {bold portions emphasized }
15. Upon a careful perusal of the cross-examinations of the two aforesaid witnesses produced and examined on behalf of the Insurance Company, it is interesting to observe that R3W[2] testified that she could not tell as to when it came to the notice of the company that the cover note was fake whereas R3W[1] testified that such fact came to their notice in the month of October, 2018 i.e., after passing of the impugned judgment-cum-award in MACP NO. 137/2016 and 135/2016. Of the two witnesses examined, it is apparent that R3W[2] joined the office in June, 2020 and she had no personal knowledge of the facts and circumstances of the case and she was not even able to recognize the signature of the person or the purported officer of the Insurance Company on the so called fake cover note Ex.R3W1/P-1.
16. Insofar as R3W[1] is concerned, apparently he was working since August, 2007 in the Insurance Company but then he also testified that he could not tell as to how the cover note/policy had been issued as it pertained to the Operations Department of the Insurance Company. R3W[1] on being prodded about the cover note filed along with the claim petition, testified that the stamp impression on the insurance cover notes bear the address details of the branch office. Infact, R3W[1] acknowledged that there were two different stamps on Ex. R3W1/P-1 at point „B‟ bearing registration number of the company as „8186‟.
17. I am afraid the testimony of R3W[1] also does not stem from his personal knowledge as he was apparently not dealing personally with the issuance of cover notes to its customers. Thus, in the backdrop that R3W-1 was unable to disclose the working pattern and use of stamps since 2015, the mere fact that Connaught Place was wrongly spelt and his volunteered version that „original insured‟ was never ingrained in the stamping of the company, are facts that hardly prove that the cover note/ insurance policy was not genuine.
18. The long and short of the aforesaid discussion brings out the following facts for our consideration:
(i) The three claim petitions bearing Nos. 135/2015,
(ii) The three claim petitions were consolidated and there were framed common issues for a common decision vide order dated 11.08.2016;
(iii) The claim petitions sought compensation in respect of injuries sustained by the claimants arising out of the same motor accident that occurred on 05.12.2015 involving the offending vehicle/tractor bearing registration No. UP17D- 2630 being driven by driver Manoj Kumar and registered in the name of Mr. Devender, both S/o Mr. Ishwar Singh;
(iv) As per the testimony of R3W[1] the notice of the claim petitions were served upon the Insurance Company on 10.05.2016;
(v) In the written statement filed on behalf of the Insurance
Company, there was no plea taken that the cover note/policy of insurance was forged and fabricated and only a plea was taken that insurance company was in the process of verifying the validity and authenticity of the driving license of the driver Manoj Kumar and enquiring into whether or not there was any violation of permit conditions;
(vi) Evidently in MACP Nos. 137/2016 and 135/2016 no evidence was led by the appellant/insurance company to prove that the cover note/ policy of insurance was forged and fabricated; (vii)As discussed hereinabove, the testimony of R3W[2] does not substantiate the defence put forth subsequent to adducing additional evidence allowed vide order dated 31.10.2018;
(viii) Likewise, the testimony of R3W[1] is not credible enough so as to hold that the policy of insurance/cover note was forged and fabricated, particularly when no criminal prosecution was pursued by the Insurance Company;
(ix) Interestingly, in the appeals bearing MAC APP NO. 1033/2018 and 1041/2018, challenging the impugned judgment-cum-award dated 21.07.2018 passed by the learned Tribunal in MACP No. 137/2016 and 135/2016, when both came up for hearing for the first time before this Court on 26.11.2018 there was again no whisper of a plea that the cover note/policy of insurance was forged and fabricated; and
(x) Even during pendency of the present appeals, no application under Order XLI Rule 27 of the CPC has been moved by the Insurance Company so as to lead additional evidence to prove that the cover note /policy of insurance was forged and fabricated.
19. The aforesaid facts and circumstances established on the judicial record leave no escape from the conclusion that the appellant/insurance company cannot be allowed to approbate and reprobate in the same breath. The Insurance Company cannot be allowed to take contradictory stands, particularly when it took an inordinate period of time in verifying the genuineness of the cover note/policy of insurance.
20. In the light of the facts and circumstances that are presently posed before us, this Court is of the view that the findings given by the learned Tribunal in MACP Nos. 137/2016 and 135/2016 culminating in judgment-cum-award dated 21.07.2018 thereby holding the Insurance Company to shoulder the responsibility to compensate the claimants, shall constitute issue estoppel so as to bar the appellant/insurance company in MAC. APP. 379/2023 to claim that the cover note/policy of insurance was not genuine. Although, the issue of genuineness of the cover note/policy of insurance is not between the same parties but inasmuch as it arises from the same vehicular accident and involves the same offending vehicle, the challenge to genuineness of the cover note/policy of insurance cannot be allowed to be re-agitated by the appellant/insurance company so as to wriggle out from its financial liability to pay compensation to the victims.
7. Hence, in view of such detailed reasons, this Court finds that there is no legal necessity to re-appreciate the entire evidence on the record. Coming to the second limb of the arguments in the present review petition, learned counsel for the applicant has pointed out that the learned Tribunal rightly gave a finding that the injured-claimant had suffered 85% permanent disability with relation to right lower limb and the functional disability was opined to be 70%.
8. However, it appears that while calculating the loss of earning capacity or functional disability vis a vis entire body, learned Tribunal reckoned the functional disability @ 100% and proceeded to award compensation of Rs. 20,60,856/- viz., 6815 x 140/100 x 10/100x12x18 on that score.
9. However, as pointed out, it appears that the loss of earning capacity amounting to Rs. 20,60,856/- has been reckoned twice under different heads viz., “loss of earning capacity” as well as “loss of future income” and in that way the compensation was arrived to be Rs.55,28,853/- with interest uptill that day reckoned to be Rs. 33,12,510/-, and thus, the total compensation was wrongly arrived at Rs. 88,33,363/-. It is pointed out that the said mistake had been suo moto taken into consideration by the learned Tribunal on the very next day of passing of the Award i.e., on 22.11.2022, and therefore, doing away with the dual compensation under two different heads, the total amount of compensation was reviewed and arrived at Rs. 55,35,997/-, and accordingly, it was directed that Rs. 15,35,997/- may be disbursed to the injured-claimant and Rs. 40 Lacs be deposited in the FDRs.
10. A careful perusal of the Award dated 21.11.2022 and as modified vide order dated 22.11.2022, there is indeed an error apparent on the face of the record insofar as this Court while computing the total compensation went by the original computation carried out by the learned Tribunal vide award dated 21.11.2022. If the plea of learned counsel for the applicant were to be accepted, the notional income taken at Rs. 6815/- plus 40% increase towards future prospects, and applying loss of earning capacity or functional disability to be 70% vis-a-vis whole body as also multiplier of „18‟, the compensation would work out to be Rs. 14,42,600/-.
11. All the same, to my mind, the learned Tribunal rightly reckoned the loss of earning capacity to be 100% considering that he was an unskilled worker, and the disability was such which had led to amputation of right lower limb above knee. Therefore, at this juncture this Court is not inclined to review the quantum of compensation awarded to the non-applicant/appellant i.e. the claimant/injured under the pecuniary head of compensation viz., loss of earning capacity or functional disability and it shall remain as Rs. 20,60,856/-
12. Accordingly, in view of the own computation by the applicant insurance company in the instant application, the amount of compensation, as worked out by the learned Tribunal vide subsequent order dated 22.11.2022, shall remain payable to the non-applicant/ claimant injured.
13. One last direction that is however warranted is that the compensation to the tune of Rs. 55,35,997/- is to be paid to the nonapplicant/ claimant injured with interest @ 9% per annum from the date of filing of the petition till realization, within four weeks from today, failing which, the applicant shall be liable to penal interest @ 12% per annum from the date of filing of the present appeal i.e. 07.08.2023 till realization.
14. The aforesaid deposit be made without prejudice and subject to future adjustments, if any, to be recovered from the amount that would be deposited in the fixed deposits to be made. Learned Tribunal shall be at the liberty to release the said amount of compensation to the nonapplicant/appellant i.e. the claimant/injured as soon as the same is deposited in terms of the modified award dated 22.11.2022.
15. Issue notice to the non-applicant/claimant-injured through all permissible modes returnable by 02.12.2024.
DHARMESH SHARMA, J. SEPTEMBER 04, 2024