TATA AIG GENERAL INSURANCE CO LTD v. SARITA & ORS

1. This appeal has been filed by the appellant challenging the Award dated 10.08.2018 passed by the learned Motor Accidents Claims Tribunal, Rohini Courts, Delhi (hereinafter referred to as the ‘Tribunal’) in MACT No. 5235/2016 titled Sh. Om Prakash through his Legal Heirs v. Sh. Rohin Mann & Ors..

2. The claimant/respondent no.1 herein is the daughter of late Sh. Om Prakash (hereinafter referred to as the ‘deceased’), who met with an accident on 13.02.2013 while returning on his bicycle. He was hit by a car being driven by the respondent no.2 herein, which is insured with the appellant.

3. The learned Tribunal on a detailed examination of the evidence led before it, has held that the accident had taken place due to the car being driven in a rash and negligent manner by the respondent no.2 herein, resulting in the deceased sustaining fatal injuries. There is no challenge to this finding of the learned Tribunal.

4. The appellant challenges the Impugned Award on the ground that the insurance policy for the car was issued on 13.02.2013 based on the previous insurance policy for the period from 13.02.2012 to 12.02.2013 purportedly issued by the New India Assurance Company Limited, which was later found to be fake. The learned counsel for the appellant submits that for the above reason, the appellant could not have been made liable to pay the compensation amount to the respondent no.1/claimant.

5. I am unable to find any merit in the above challenge of the appellant. The fact remains that the insurance policy was duly issued by the appellant, and the accident occurred after the issuance of the insurance policy in question. The said insurance policy was not cancelled or terminated by the appellant before the accident took place. The learned Tribunal has also discussed the above issue, observing as under:- “40. In the present case, it is an admitted position on record that respondent no.4/insurance company not only issued cover note in respect of offending vehicle for the period in question, in favour of respondent NO. 2/insured but the said cover note was also followed by policy of insurance having been issued by it. At no point of time, insurance company is shown to have acted diligently or promptly in cancelling the insurance policy. At this juncture, it may be noted that R3W[1] who is none-else but Claims Service Manager of Insurer, has deposed during his cross examination that it was not within his knowledge if any notice was served upon insured calling upon him to submit any explanation that previous insurance policy furnished by him with their insurance company, was found to be fake. He could not disclose the date when it was revealed to insurance company that previous insurance policy was fake. Not only this, he admitted that insurance policy for the period in question, was not cancelled by their company and insured was never informed about the same during the policy period. There is no dispute to the fact that the insurance policy in question remained in force till the period of its validity i.e. midnight of 12.02.14. This fact when considered in the light of the relevant part of cross examination of R3W1/1 (i.e. Officer of respondent no. 4), leads to the conclusion that the entire conduct on the part of insurance co had been negligent. While saying so, I have also taken into consideration the fact that in the written statement originally filed by respondent no. 4/insurance company on 12.07.2013, no such plea was raised by it that insurance policy for the previous year submitted by insured, was fake one. Rather, it admitted in its written statement that there was valid insurance policy issued in the name of insured/respondent no. 2 for the period from 13.22.13 to 12.02.14. It was only at the time of filing affidavit in evidence of R3W[1], the insurance company came out with the aforesaid plea that insurance policy for the period in question was void as the insured managed to get the policy issued on the basis of fake insurance policy for the said offending vehicle in respect of the previous year. No explanation whatsoever has been furnished by insurance company as to what kind of verification of previous insurance policy purportedly submitted by insured with it, at the time of issuance of insurance policy for the period in question, had been made by it. Moreover, the said insurance policy remained in force throughout the period of its validity upto 12.02.14 and was not cancelled at all. The insured was never called upon at any point of time to furnish any explanation on this aspect or to produce any valid insurance policy of the vehicle for the previous year, during the said period. The insurance company duly accepted the insurance premium while issuing insurance policy of the vehicle for the period in question and used it for its benefit.

41. The heavy reliance placed by counsel for insurance company on unreported decision of Hon’ble Punjab & Haryana High Court in the case “Rajveer Singh Gurjar & Anr.” (supra) is found to be misplaced inasmuch as the facts of the present case are found to be distinguishable from the facts of the cited decision. Moreover, the decision rendered in the cited case, proceeded on the basis of finding that there was misrepresentation and concealment of material facts within the meaning of Section 149(1) (b) of M.V Act. However, the insurance company in the present case has failed to establish that there was misrepresentation and concealment of material facts on the part of insured when nothing has been brought on record on its behalf to prove that any effort whatsoever was made on its part to verify the insurance policy for the previous year submitted by insured, which led to issuance of policy by it for the period in question. This is more so when the office copy of insurance policy (Ex. R3W1/C) also does not contain any reference to the previous insurance policy purportedly submitted by insured, as claimed on its behalf. Thus, I am of the view that in view of peculiar facts and circumstances of the present case as discussed above, insurance co /respondent NO. 4 cannot be allowed to take the plea that insurance policy was void in view of Section 149 (2) (b) of M.V Act or that it is entitled to recover the compensation amount from the insured/respondent no. 2. Keeping in view the existence of valid insurance policy, respondent no. 4/insurance company becomes liable to pay the compensation amount, as it is liable to indemnify the insured. Issue no. 2 is decided accordingly.”

6. I find no infirmity in the above finding of the learned Tribunal.

7. The next challenge of the appellant to the Impugned Award is to the grant of Rs.6,99,420/- in favour of the respondent no.1 by the learned Tribunal under the head of ‘loss of estate’. The learned counsel for the appellant, placing reliance on the judgment of the Supreme Court in Manjuri Bera (Smt) v. Oriental Insurance Company Ltd. and Another, (2007) 10 SCC 643, submits that as the respondent no.1 admittedly is the married daughter of the deceased, therefore, she is not entitled to any amount towards loss of estate of the deceased. He submits that the Supreme Court has accepted the Award of ‘loss of estate’ in favour of the married daughter only in cases of a ‘no fault liability’ as envisaged under Section 140 of the Motor Vehicles Act, 1988 (in short, ‘Act’), as was then applicable.

8. I do not find any merit in the said submission of the learned counsel for the appellant. Section 166 of the Act states that an application for compensation can be made inter alia by all the legal representatives of the deceased who has died as a result of a motor vehicle accident. The savings of the deceased becomes part of his ‘estate’ that is inheritable by his legal representatives irrespective of whether they are dependent on him or not. Even a married daughter is entitled to a share in the ‘estate’ of the deceased. She would equally suffer a loss of estate on account of the untimely death of the deceased.

9. A Division Bench of the Karnataka High Court in A. Manavalagan v. A. Krishnamurthy & Ors., ILR 2004 KAR 3268, also made certain observations as to how loss of estate could be awarded:-