The Oriental Insurance Company Limited vs.pushpa Malhotra & Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1207824
CourtDelhi High Court
Decided OnAug-10-2017
AppellantThe Oriental Insurance Company Limited
RespondentPushpa Malhotra & Ors.
Excerpt:
$~r-100 in the high court of delhi at new delhi * decided on:10. h august, 2017 + mac.app. 461/2009 the oriental insurance company limited through: mr. praveen sehrawat, adv. with mr.abhishek kumar, adv. ... appellant versus pushpa malhotra & ors. ........ respondents through: respondent in person. coram: hon'ble mr. justice r.k.gauba1 judgment (oral) arun kumar malhotra was travelling with his family in his car, toyota qualis bearing registration no.dl-6cg-8974, it being driven by another person in a negligent manner. the car met with an accident in the area of village sanwala on gt karnal road on 26.12.2004, resulting in he alongwith other persons travelling in the car suffering injuries, they being taken to hospital. he died during treatment on 07.01.2005. the accident claim case (suit no.680/2008) was instituted by his widow and three children, they being first to fourth respondents herein (collectively, the claimants) on 20.12.2007 seeking compensation impleading the driver and the appellant insurance company (the insurer) as party respondents, the appellant having concededly issued the insurance policy bearing no.2005/1548 for the period 13.06.2004 to 12.06.2005 in respect of the said vehicle. mac appeal no.461/2009 page 1 of 5 2. the motor accident claims tribunal (the tribunal), by judgment dated 03.07.2009, upheld the claim for compensation on the principle of fault liability and awarded compensation in the sum of rs.12,69,429/-, it inclusive of expenditure incurred towards medical treatment (rs.2,83,589/-), loss of financial dependency (rs.9,15,840/-) loss of love and affection (rs.10,000/-), loss of consortium (rs.50,000/-), besides funeral expenses and loss to estate rs.5,000/- each. the liability was fastened on the appellant insurance company to pay the said amount with interest @ 7.5% per annum from the date of filing of the petition till realization.3. the appellant while contesting the claim proceedings had raised the plea that since the deceased himself was the owner of the car, he could not be covered by the insurance policy which was taken out to take care of the risk of third party. the claimants, on the other hand, relied upon terms and conditions of the insurance policy (ex.pw-1/17) to plead that the personal risk of the owner was also duly covered by the policy in question. the tribunal upheld the objections of the claimants and, thus, repelled the defence pleaded by the insurance company.4. the insurer is in appeal raising two contentions, one, that it was not liable to pay any amount for the death of the owner of the car for the reasons set out above and, second, that the loss of dependency was wrongly calculated with the multiplier of 15, since the income tax return (itr) of the deceased for the assessment year 2002-2003 (ex.pw-1/18) indicated his date of birth was 01.08.1962, thereby mac appeal no.461/2009 page 2 of 5 indicating he was 42 years old at the relevant time, which would attract the multiplier of 14, reliance in which respect is placed on ruling of the supreme court in sarla verma (smt.) & ors. v. delhi transport corporation & anr., (2009) 6 scc121 5. on the question of calculation of loss of dependency, the error pointed out by the appellant is found to be correct. since the itr indicated the date of birth, the exact age should have been the basis of adoption of the multiplier rather than the approximate age indicated in the post-mortem examination report. the annual loss of dependency was worked out by the tribunal at rs.61,056/- and it is on the multiplier of 15 that the total loss of dependency was calculated at rs.9,15,840/-. since the multiplier of 14 would apply, the correct loss of dependency would be (61,056/- x14) rs.8,54,784/-. this would mean reduction in the award under the head of loss of dependency in the sum of rs.61,056/-.6. it is the responsibility of this court to ensure that the compensation awarded is just and fair. it is noted that the non- pecuniary heads of damages granted by the tribunal are on the lower side. following the dispensation in madhu marwaha & anr vs. dal chand & anr., fao1022001, decided on 01.02.2016, award of rs.50,000/- each towards loss of consortium and loss of love & affection and rs.10,000/- each towards funeral expenses and loss to estate are added.7. putting together the compensation payable in the case, including the medical expenditure incurred, the total compensation comes to mac appeal no.461/2009 page 3 of 5 (2,83,589/- +8,54,784/- +50,000/- +50,000/- +10,000/-,+10,000/-) rs.12,58,373/-. it is noted that this amount is only rs.11,056/- less than what was assessed by the tribunal to be fair compensation. since difference is meagre, this court declines to interfere.8. it is, however, also noted that the rate of interest levied by the tribunal was inadequate. 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 of the petition till realization.9. coming to the plea of the insurance company about it not being liable to pay the compensation under the insurance policy (ex.pw- 1/17) primarily for the reason that rs.100/- which was required to be paid towards the risk of the owner was not paid, in the opinion of this court, the issue has been properly considered in the light of material on record by the tribunal. the policy document itself shows that rs.900/- was paid to cover the additional risk of personal accident. the document unmistakably shows that such risk covers “any person including insured”.10. for the foregoing reasons, the plea of the insurance company for exoneration is rejected.11. by order dated 22.09.2009, the enforcement of the award was stayed. by order dated 05.11.2009, the appellant was directed to deposit the entire awarded amount with interest with uco bank, delhi high court branch, new delhi within the period specified. it mac appeal no.461/2009 page 4 of 5 was further directed that the said amount be kept in fixed deposit receipt till further orders. by order dated 22.12.2009, the uco bank was directed to release rs.72,967/- to the first respondent, the balance amount being directed to be kept in fixed deposit receipt though with liberty given to her to draw monthly interest. the amount lying in the fixed deposit shall now be released to the claimants in terms of the amount awarded.12. since the liability of the insurance company stands increased on account of enhanced rate of interest, it will be obliged to pay further as per the modified award. it is directed to deposit the enhanced portion with the tribunal within thirty days, making it available to be released to the claimants. the enhanced portion of the award shall fall to the share of the first respondent only.13. the statutory amount shall be refunded to the appellant insurance company.14. the appeal stands disposed of in above terms. r.k.gauba, j.august10 2017 vk mac appeal no.461/2009 page 5 of 5
Judgment:

$~R-100 IN THE HIGH COURT OF DELHI AT NEW DELHI * Decided on:

10. h August, 2017 + MAC.APP. 461/2009 THE ORIENTAL INSURANCE COMPANY LIMITED Through: Mr. Praveen Sehrawat, Adv. with Mr.Abhishek Kumar, Adv. ... Appellant versus PUSHPA MALHOTRA & ORS. ........ RESPONDENTS

Through: Respondent in person. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA1 JUDGMENT (ORAL) Arun Kumar Malhotra was travelling with his family in his car, Toyota Qualis bearing registration No.DL-6CG-8974, it being driven by another person in a negligent manner. The car met with an accident in the area of village Sanwala on GT Karnal Road on 26.12.2004, resulting in he alongwith other persons travelling in the car suffering injuries, they being taken to hospital. He died during treatment on 07.01.2005. The accident claim case (Suit No.680/2008) was instituted by his widow and three children, they being first to fourth respondents herein (collectively, the claimants) on 20.12.2007 seeking compensation impleading the driver and the appellant insurance company (the insurer) as party respondents, the appellant having concededly issued the insurance policy bearing No.2005/1548 for the period 13.06.2004 to 12.06.2005 in respect of the said vehicle. MAC Appeal No.461/2009 Page 1 of 5 2. The Motor Accident Claims Tribunal (the tribunal), by judgment dated 03.07.2009, upheld the claim for compensation on the principle of fault liability and awarded compensation in the sum of Rs.12,69,429/-, it inclusive of expenditure incurred towards medical treatment (Rs.2,83,589/-), loss of financial dependency (Rs.9,15,840/-) loss of love and affection (Rs.10,000/-), loss of consortium (Rs.50,000/-), besides funeral expenses and loss to estate Rs.5,000/- each. The liability was fastened on the appellant insurance company to pay the said amount with interest @ 7.5% per annum from the date of filing of the petition till realization.

3. The appellant while contesting the claim proceedings had raised the plea that since the deceased himself was the owner of the car, he could not be covered by the insurance policy which was taken out to take care of the risk of third party. The claimants, on the other hand, relied upon terms and conditions of the insurance policy (Ex.PW-1/17) to plead that the personal risk of the owner was also duly covered by the policy in question. The Tribunal upheld the objections of the claimants and, thus, repelled the defence pleaded by the insurance company.

4. The insurer is in appeal raising two contentions, one, that it was not liable to pay any amount for the death of the owner of the car for the reasons set out above and, second, that the loss of dependency was wrongly calculated with the multiplier of 15, since the income tax return (ITR) of the deceased for the assessment year 2002-2003 (Ex.PW-1/18) indicated his date of birth was 01.08.1962, thereby MAC Appeal No.461/2009 Page 2 of 5 indicating he was 42 years old at the relevant time, which would attract the multiplier of 14, reliance in which respect is placed on ruling of the Supreme Court in Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC121 5. On the question of calculation of loss of dependency, the error pointed out by the appellant is found to be correct. Since the ITR indicated the date of birth, the exact age should have been the basis of adoption of the multiplier rather than the approximate age indicated in the post-mortem examination report. The annual loss of dependency was worked out by the Tribunal at Rs.61,056/- and it is on the multiplier of 15 that the total loss of dependency was calculated at Rs.9,15,840/-. Since the multiplier of 14 would apply, the correct loss of dependency would be (61,056/- x

14) Rs.8,54,784/-. This would mean reduction in the award under the head of loss of dependency in the sum of Rs.61,056/-.

6. It is the responsibility of this court to ensure that the compensation awarded is just and fair. It is noted that the non- pecuniary heads of damages granted by the tribunal are on the lower side. Following the dispensation in Madhu Marwaha & Anr vs. Dal Chand & Anr., FAO1022001, decided on 01.02.2016, award of Rs.50,000/- each towards loss of consortium and loss of love & affection and Rs.10,000/- each towards funeral expenses and loss to estate are added.

7. Putting together the compensation payable in the case, including the medical expenditure incurred, the total compensation comes to MAC Appeal No.461/2009 Page 3 of 5 (2,83,589/- +8,54,784/- +50,000/- +50,000/- +10,000/-,+10,000/-) Rs.12,58,373/-. It is noted that this amount is only Rs.11,056/- less than what was assessed by the tribunal to be fair compensation. Since difference is meagre, this court declines to interfere.

8. It is, however, also noted that the rate of interest levied by the tribunal was inadequate. 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 of the petition till realization.

9. Coming to the plea of the insurance company about it not being liable to pay the compensation under the insurance policy (Ex.PW- 1/17) primarily for the reason that Rs.100/- which was required to be paid towards the risk of the owner was not paid, in the opinion of this court, the issue has been properly considered in the light of material on record by the tribunal. The policy document itself shows that Rs.900/- was paid to cover the additional risk of personal accident. The document unmistakably shows that such risk covers “any person including insured”.

10. For the foregoing reasons, the plea of the insurance company for exoneration is rejected.

11. By order dated 22.09.2009, the enforcement of the award was stayed. By order dated 05.11.2009, the appellant was directed to deposit the entire awarded amount with interest with UCO Bank, Delhi High Court Branch, New Delhi within the period specified. It MAC Appeal No.461/2009 Page 4 of 5 was further directed that the said amount be kept in fixed deposit receipt till further orders. By order dated 22.12.2009, the UCO Bank was directed to release Rs.72,967/- to the first respondent, the balance amount being directed to be kept in fixed deposit receipt though with liberty given to her to draw monthly interest. The amount lying in the fixed deposit shall now be released to the claimants in terms of the amount awarded.

12. Since the liability of the insurance company stands increased on account of enhanced rate of interest, it will be obliged to pay further as per the modified award. It is directed to deposit the enhanced portion with the tribunal within thirty days, making it available to be released to the claimants. The enhanced portion of the award shall fall to the share of the first respondent only.

13. The statutory amount shall be refunded to the appellant insurance company.

14. The appeal stands disposed of in above terms. R.K.GAUBA, J.

AUGUST10 2017 vk MAC Appeal No.461/2009 Page 5 of 5