ICICI Lombard General Insurance Co Ltd v. Suman Arora

1. Mr. Rajesh Arora, then 37 years old, a practicing advocate, suffered injuries in a motor vehicular accideiltthaf occurred on 10.08.2009 when the car bearing registration No.DL 90-0 8876 (the car) in'which he was traveling was involved in a cdilision against fruclUtrailer bearing registration No.HR 61 5896 (the offending'vehicle)jat aboufT.3P PM in the area of Nilokheri bridge on G T Rarrial Road, and.diedunjthe consequence! His widow and minor child (appellants in MAC.APP.Np.888/2010), hereinafter referred.to as the claimants, brought a claim petition'.under Sections 166 and 140 of Motor Vehicles Act, 19,8!8.(My Act) before the.motor accident claims tribunal (tribunal) which'registered it as suit No.344/2:009. The claimants impleaded Sajjan Singh(and/ryinayi/Rumar;-( driver and the owner respectively of the offending" vehicle):' as.first and second respondents, in addition to.

ICICI Lombard General Insurance Company Ltd. (appellant in IVIAC.APP.653/2011). The mother ofthe deceased was impleaded as fourth respondent (performa party) on the plea that she was also adependent on the deceased and thus entitled to compensation.

2. The tiibunal s record shows that both the driver and owner of the offending vehicle, though duly seiwed, chose not to appear and thus were set ^pcnte..fhe other two respondents in the claim proceedings, including the ex MAC.APp. No.888/20!0 ct' conn Page 2 of? insurer, appeared and filed written statements. During the course of the inquiiy, the insurer took up the defenee that there had been a breach of the terms and conditions of the insurance poliey as the driver of the offending vehiele was not holding a valid or effective driving license.

3. The tribunal, on the basis of evidence led, found that the accident had occurred due to rash/negligent driving of the offending vehicle by its driver (Sajjan Singh) an on such basis awarded compensation in the sum of ^11,62,600/- which includes TIT,32,60.0/- towards loss of financial dependency, ?10,000/-each towards.Idss of Ipve fc,affection and loss of consortium and ^5,000/^, each towards funeral ex|3ens,ea-:and loss to estate. It awarded the said compensationwith interesfat 7.5%,per hnnum from the date of filing of,the petition (10.09;2009)tilfrealization.

4. The plea,of the insurance company that it was not liable to pay the compensation since the driver pt/tlier.pffe vehicle was (hot holding a valid or effective'driving4icdneeiwa§:U|)fe ofevidence ofits witness R3W[1] on 'theistrdn|th^. of his affidavit.(Ex;R|^1/A), inter alia, proving that the insurahee compdny;;"h;adrissued ah a notice under Order 12 Rule 8 ofthe Code ofCivil"ProeedUre, 1908 (CPC) on the owner and driver calling them upon to produce, inter alia, the original driving licence in spite of which there had been no response. The tribunal, thus, found that acase had been made out to grant recovery rights to the insurance company which otherwise was directed to specif)^ the award, the owner and driver ofthe offending vehicle having been held jointly and severally liable to pay the compensation. Noticeably, in the operative part ofthe impugned MAC.APP. No.888/2010 <& conn. i judgment passed by the tribunal on 18.09.2010, there was no clear direction with regard to the recovery rights.

5. The claimants filed appeal (MAC.APP.No.888/2010) contending that - the compensation awarded is inadequate. Primarily, two issues have been raised; first, that the income as reflected in the income tax return (ITR) for the assessment year 2008-09 (Ex.PWl/B) was not considered and instead a lower income taken into account; and second, that the awards under the nonpecuniary heads of damages are paltry: v.

6. The insurance.horapahy/ 'by fitsappeal' (jyiAG.APP.No.653/2011) raised a number of iissues; BufiatThetfidarihg, it subinitted; through counsel thatthe only conc'erhrib be addresseddk-th^^ direcfion'about recovery ^ • rights may be granted. -

7. The owner of the ofibnding.{vfeljidle (Vinay Kumar)? had moved application under Order 9,Rulel[3]..ii??PO fie the tribunal in the course of execution proceedmgsmnABA llTOTlveohfehding'M had been served on him before'sbie:was set'm.p?fl;:-/e, nlso pleadirig^that his son though having received the sumifion|:;had4JK3r;gdtteh? to communicate. The said application, however, was allowed to be withdrawn by the tribunal by order dated 23.01.2013 passed in miscellaneous case No.7/12 with liberty granted to file an independent appeal. In wake ofthe said proceedings, he filed an appeal (MAC.APP.No.209/2013), mainly to contend that the driver held a valid'and effective driving license and, therefore there was no breach of terms and conditions of the insurance policy. Per contra, the learned counsel for the insurer submitted that the driving license, the photocopy of which has been submitted by the owner (Vinay Kumar), appears to be a •^'ly^C.APP. No.88S,-20I0 A conn Page 4 of?,[1] ';i T • ! - '';• IS: L, r •• i;' Intp;//! V[2].100. J0.159/litml/deit;ci--iiiinVr)nn~-.i forged and fabricated document, not valid for the purposes ofthe offending vehicle. In response,.the learned counsel for the appellant (MAC.APP.No.209/2013) (Vinay Kumar) submitted that he has verified the document and there is no doubt that it is genuine and, therefore, on its strength it is being submitted that the driver held a valid and effective diiving license and there was no breach. On being asked, he stated that he is leady to face an inquiry and in case the document is found to be not correct, he is ready, to face criminal prosecution. 8; The contention of?the claiipants afeut;epor 'im,calculation of loss of dependency is coirebt, liid IT^.(JExiPWl/B) clearlK^flected that the I income from prpfe^stoli was assumption ofthfe teiBunal that tfieji^pfri|.v^^^ ^kl[3],259Aper annum is not coriect. The calculation, thus, has tfrbd hiade afresh. After deducting 1/3"' towards personal &living expens©|fMe;taTfannual dependicy comes to (1,19,706 X 2- 3;| multiplier of 15, and lightly so, given th|^^t;,tha|W w^^hg^I^JyJears. Thus, the total loss ofdependenCy.Jkcalculalfe xl5|ill,97,060/-. ^he view taken InT^q/e.y/i Ors. v. Rajbir Singh &Ors., 013) 9see 54 andShashikala V. Gangalakshmamma (2015) 9see 150 compensation in the sum the sum of laldi each on account of love & aeohon and loss ofconsortium and ©5,000/- eafih towards loss ofestate anc fitneral expense are added. Thus, the totai compensationpayabie in the TuilZr'^' " ^'4.47,060/- rounded offto \

10. It is noted that the tribunal had awarded the rate of interest at 7.5% per annum. Following the consistent view taken by this Court [see judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.], the rate of interest is increased to 9% per annum from the date of filing ofthe petition till realization.

11. The tribunal had apportioned the award amongst the three dependents by specifying the amounts payable to each of them. In the facts and circumstances, it is directed that, the entire, enhanced portion, including the effect of the increase in the rate of interest,; shalf be payable to the first claimant (widow) Suman Afora only. /

12. The learned counsel for thednSurdnCe company fairly concedes that an opportunity deserves to be granted tothe Owner (Vinay Kumar) to prove the existence of valid and effective drivhig; license for the offending vehicle for the period in question.. Therefore,,this,issue is remitted for further inquiry to the tribunal. It is. made'clear thaf it;shall primarily,be the burden of the owner Vinay Kumar to,proyeAhe fact that there waq.a ytilid and effective driving license held by the/driveMfthe pfpn for the period in question. Needless to add, the insurance company will be entitled to crossexamine the witnesses proved in support of such claim and also be entitled to lead evidence in rebuttal. The evidence already led by the insurer during • earlier inquiiy before the tribunal shall also be considered by the tribunal. In the event ofthe tribunal reaching afinding that avalid and effective driving license was held by the driver, the obseiwation in the impugned judgment that the insurer will have recovery rights shall stand vacated; Conversely, if MAC.APP. NO.8S8/20I0 conn Page 6 of? the owner (Vinay Kumar) fails to prove the facts argued by him, the insurer shail be gi'anted recovery rights.

13. It may be added that in the event of it being found that the driving license relied upon by the owner (Vinay Kumar) is not genuine or is fabricated, the tribunal shall be duty bound to consider the expediency of initiating criminal action against him.

14. The insurer is directed to deposit the effect of the increase in the compensation and rate of dritdrest.'AvitK The' tribunal within 30 days whereupon it shall be released to the claimant: •

15. The parties arcsdirected to. appear peforethe tribtmal on 18.04.2016.

16. Statutory deposit, ifmade;T|t^l||p;ref^ f