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Insurance

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can an Insurance Company disown its liability on the ground that the driver of the vehicle although duly licensed to drive light motor vehicle but there was no endorsement in the licence to drive light motor vehicle used as commercial vehicle.= The heading “Insurance of Motor Vehicles against Third Party Risks” given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. 18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer’s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside. 20. We, therefore, allow this appeal, set aside the impugned judgment of the High Court and hold that the insurer is liable to pay the compensation so awarded to the dependants of the victim of the fatal accident. However, there shall be no order as to costs.

published in http://judis.nic.in/supremecourt/filename=40464   Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO… 4834 OF 2013 (Arising out of Special Leave Petition (Civil) No.5091 of 2009) S. IYYAPAN Appellant (s) VERSUS M/S UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER Respondent(s) JUDGMENT M.Y. Eqbal, J.: Leave granted. 2. The right of the … Continue reading

WRIT- CONSUMER COMMISSION- SEC. 46,47 OF INSURANCE OF ACT – WHO HAS TO FILE A CIVIL SUIT IN CIVIL COURT = WHEN CONSUMER COMMISSION REFUSED TO DECIDED AN INSURANCE CLAIM = National Consumer Reddressal Commission, New Delhi, wherein it has opined that all the cases require recording of voluminous evidence and that realising this difficulty, the learned counsel representing the appellants/revision petitioners sought liberty to approach the civil Court for the purpose of recovering the claim amounts. Accordingly, liberty was given to them to approach the civil Court. ; who among the parties must approach the civil Court. under sec.47 of INSURANCE ACT= the occasion for the insurer to approach the civil Court under Section 47 of the Act would arise when there is no dispute as to the payment of the insured amount but the dispute as to the persons to whom the amount has to be paid or if there is insufficiency of proof of title to the amount secured or any other adequate reason which render it impossible for the insurer to obtain a satisfactory discharge for the payment of such amount. It is not the pleaded case of either party that the insurer is willing to discharge the insured amount but on account of any one or more of the above noted reasons contained under Section 47 of the Act, the insurer is unable to secure discharge. As noted herein before, all the insurance companies have resisted the claims of the petitioners before all the fora on the ground that there are serious suspicious circumstances rendering the very claims of the nominees of the insured, doubtful. Therefore, on a careful consideration of the facts of the cases on hand, I have no doubt in my mind that Section 47 of the Act has no application to the present cases and there is no obligation cast on the insurance companies to approach the civil Court. As rightly undertaken by the petitioners before the National Consumer Reddressal Commission, it is they who need to approach the civil Court by way of regular civil suits if they intend to claim the insured amounts as the purported nominees of the policyholders. For the above-mentioned reasons, I do not find any merit in these writ petitions and the same are accordingly dismissed.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9852     THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY   Writ Petition No. 30752 of 2012 and Batch   02-04-2013   Khalida Begum and another   The Life Insurance Corporation Ltd., Division Office at Opposite Secretariat, Saifabad, Hyderabad Rep.by its Divisional Manager Claims and another.   Counsel for the petitioners: Sri M.A.Barifor Md.Ajmal Ahmed … Continue reading

motorcycle accident – personal injury = “The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii)Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v)Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity).= In the present case, the claim petition filed by the appellant claimed an amount of Rs.3,50,000/-, the Tribunal awarded Rs.1,94,350/- which was enhanced by the High Court to Rs.2,65,000/-. The evidence of the doctor tendered in the Tribunal on 3.12.2008 stated that the future treatment would cost more than Rs.90,000/-. This corroborating evidence has not been contravented. The High Court however awarded only an amount of Rs.15,000/- towards future medical expenses. In view of the dicta in Raj Kumar Vs. Ajay Kumar (supra) we accept the corroborative evidence given by the doctor, and add the amount as reflected in the doctor’s evidence. A similar view has been taken by a Bench of this Court recently in Civil Appeal No. 5945 of 2012 Kavita Vs. Deepak, decided on 22.8.2012 to which one of us (G.S. Singhvi J) was party. This would add the remaining amount of Rs.75,000/- to the compensation awarded by the High Court which takes it to a figure of Rs.3,40,000/. Since, the doctor has said that the expenses could be more than Rs.90,000/- but has not specified how much would be that amount, we add the remaining amount of Rs.10,000/- to make it Rs.3,50,000/- and thus fully allow the claim of the appellant. The amount of Rs.85,000/- thus added, with interest at 8% from the date of the petition (as originally awarded) will give her an added amount in the range of Rs. 1,25,000/. That will meet her requirement as placed before the MACT in her claim petition in its entirety. . The appeal is accordingly allowed. The claim petition filed by the appellant will stand decreed at Rs.3,50,000/- with interest @ 8% per annum from the date of the petition as awarded by the MACT. The respondent No.2 insurance company is directed to pay the amount as now added with interest at 8% as above within 8 weeks from today.

Page 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4340 OF 2013 (Arising out SLP (C) No.8164 of 2012) Smt. V. Sudha … Appellant Versus P. Ganapathi Bhat & Anr. … Respondents J U D G E M E N T H.L. Gokhale J. Delay condoned. Leave granted. 2. This … Continue reading

MOTOR ACCIDENT CLAIM = i) No amount can be deducted towards Provident Fund, Pension and Insurance amount from the actual salary of the victim for calculating compensation. (ii) In the absence of any evidence, the Court suo motu cannot deduct any amount towards income tax from the actual salary of the victim. (iii) On the facts of the present case, the Tribunal and the High Court should have doubled the salary by allowing 100% increase towards the future prospects and (iv) The Tribunal and the High Court failed to ensure payment of just and fair compensation. Reliance was also placed on decisions of this Court which will be discussed later in this judgment.= “whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as “Pecuniary Advantage” liable for deduction.” “Compassionate appointment” can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one’s death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as “Pecuniary Advantage” that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act. ; “whether the income tax is liable to be deducted for determination of compensation under the Motor Vehicles Act” In the case of Sarla Verma & Anr.(Supra), this Court held “generally the actual income of the deceased less income tax should be the starting point for calculating the compensation.” This Court further observed that “where the annual income is in taxable range, the word “actual salary” should be read as “actual salary less tax”. Therefore, it is clear that if the annual income comes within the taxable range income tax is required to be deducted for determination of the actual salary.; He was only 28 years 7 ½ month old at the time of death. In normal course, he would have served the State Government minimum for about 30 years. Even if we do not take into consideration the future prospect of promotion which the deceased was otherwise entitled and the actual pay revisions taken effect from 1st January, 1996 and 1st January, 2006, it cannot be denied that the pay of the deceased would have doubled if he would continued in services of the State till the date of retirement. Hence, this was a fit case in which 100% increase in the future income of the deceased should have been allowed by the Tribunal and the High Court, which they failed to do. = the monthly income of the deceased Sajjan Singh at Rs.9,000 x 2 = Rs.18,000/­ per month. From this his personal living expenses, which should be 1/3rd, there being three dependents has to be deducted. Thereby, the ‘actual salary’ will come to Rs.18,000 – Rs.6,000/­ = Rs.12,000/­ per month or Rs.12,000 x 12 =1,44,000/­ per annum. As the deceased was 28 ½ years old at the time of death the multiplier of 17 is applied, which is appropriate to the age of the deceased. The normal compensation would then work out to be Rs.1,44,000/­ x 17 =Rs.24,48,000/­ to which we add the usual award for loss of consortium and loss of the estate by providing a conventional sum of Rs. 1,00,000/­; loss of love and affection for the daughter Rs.2,00,000/­, loss of love and affection for the widow and the mother at Rs.1,00,000/­ each i.e. Rs.2,00,000/­ and funeral expenses of Rs.25,000/­. 31. Thus, according to us, in all a sum of Rs.29,73,000/­ would be a fair, just and reasonable award in the circumstances of this case. 32. The rate of interest of 12% is allowed from the date of the petition filed before the Tribunal till payment is made. 33. Respondent No.3 is directed to pay the total award with interest minus the amount (if already paid) within three months. The appellant No.2­daughter who was aged about 2 years at the time of accident of the deceased has already attained majority; money may be required for her education and marriage. In the circumstances, we direct respondent No.3 to deposit 25% of the due amount in the account of appellant no.1­the wife. Out of the rest 75% of the due amount, 35% of the amount be invested in a Nationalized Bank by fixed deposit for a period of one year in the name of the daughter­appellant No.2. Out of the rest 40% of the due amount, 20% each be invested in a Nationalized Bank by fixed deposit for a period of one year in the name of the appellant Nos. 1 and 3, the wife and the mother respectively. 34. The award passed by the Tribunal dated 21st June, 2003 and the judgment dated 29th July, 2011 of the Rajasthan High Court stand modified to the extent above. The appeal is allowed with the aforesaid observation and direction. No separate order as to costs.

Page 1     REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5513 OF 2012 (arising out of SLP(C)No.6367 of 2012) VIMAL KANWAR & ORS. …. APPELLANT VERSUS KISHORE DAN & ORS.           ….RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. The present appeal is filed against the judgment of the   Rajasthan High Court,   Jaipur Bench in S.B. Civil Misc.   Appeal   No.   1831   and   2071   of   2003.       By   the impugned   judgment   dated   29th  July,   2011,   the   Rajasthan High Court  upheld the compensation awarded by the Motor … Continue reading

registration of the car stood in the name of Anil Kumar and petitioner after purchasing vehicle got it insured in his own name without transfer of registration certificate in his name. – not entitled to claim insurance = Section 50 of the Motor Vehicle Act, 1988 provides as under: ”50(1)(b) The transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration”. 7. As per this provision, the petitioner was bound to get the registration certificate transferred in his name and intimate to the insurance company but as the petitioner failed to get it transferred in his name within specified period, petitioner was not entitled to get any compensation only on the ground that policy existed in his name. At the time of taking policy, petitioner had no insurable interest in the vehicle and respondent/OP has not committed any error in repudiating claim. Learned State Commission has not committed any error in allowing appeal and dismissing complaint filed by the petitioner. We find no infirmity, material irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage. 8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to cost.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION                                                 NEW DELHI             REVISION PETITION NO. 64 OF 2013  (From the order dated 10.10.2012 in Appeal No.876/2012 of the Haryana  State Consumer Disputes Redressal Commission, Panchkula) D.P. Srivastava S/o Late Sh. Keshava Prasad Srivastava C1/102, Mayfair Tower Charmwood Village, Suraj Kund Road, Faridabad – 121 009, Haryana                      …               Petitioner/Complainant Versus M/s. Reliance General Insurance Co. Ltd. Plot No.60, Okhla Industrial Estate Phase II Opp. SBI Bank, New Delhi … Continue reading

the Bank had failed to insure the property.=The State Commission was also informed that in all cases of house loan advanced in Tiruchirapalli by the OP/Bank, during 2003-09 period, the bank itself had insured all houses. In none of the cases, premium was directly paid to the insurance company by the borrower. Clause 13 in the loan agreement needs to be viewed in this background. Had the OP/Bank acted with promptitude and insured the house in time, the benefit of insurance would have been available when the floods came and damaged it. This lapse was further compounded by belated effort on the part of the Bank to ensure it, at the cost of the complainant. The State Commission has therefore rightly held it to be a case of deficiency of service.- the decision of the Tamilnadu Consumer Disputes Redressal Commission in FA No. 194 of 2011 is bases on correct appreciation of the evidence on record. There is no case for intervention by this Commission in exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986. The revision petition is therefore dismissed and the impugned order is confirmed. Further, considering the conduct of the revision petitioner an additional cost of Rs 25,000 is awarded to the respondent/complainant. The same shall be paid by the revision petitioner within three months. Failing this, the amount shall carry interest at 9% for the period of delay.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO.4645 OF 2012 (Against the order dated 24.07.2012 in First Appeal No.194/2011 of the State Commission, Tamil Nadu)   1. The Chairman Indian Bank Chennai   2. The Manager Indian Bank, Thillai Nagar, 10th Cross, Tiruchirapalli- 18                                                                                                                                       ……….Petitioners     Versus 1. Consumer Protection Council Tamilnadu, No.2, RMS Building, … Continue reading

(1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle. (2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to create a liability where there is none?” = The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur5 and Challa Bharathamma6 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 Bharathamma6 . 26. Appeal is allowed and disposed of as above with no order as to costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5 OF 2013 (Arising out of SLP(C) No. 20127 of 2011) Manager, National Insurance Co. Ltd. …… Appellant Vs. Saju P. Paul and Another ……Respondents JUDGMENT R.M. LODHA, J. Leave granted. 2. The appellant, insurance company, is in appeal by special leave … Continue reading

motor accident claims =the Hon’ble Supreme Court reported in the case of National Insurance Company Ltd. v. Swaran Singh and others[1] and found that even if the driver of the vehicle does not have a valid driving license so far as the third parties are concerned, the insurance company is liable to pay the same.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO   M.A.C.M.A. No. 2681 of 2011   JUDGMENT: The appeal is filed against the judgment dated 23.04.2004 in M.O.P.No.1274 of 2001 on the file of the Motor Accident Claims Tribunal-cum-I Additional District Judge, Visakhapatnam questioning the liability of the insurance company.   A claim for compensation was made for … Continue reading

Even though the mother is shown as nominee, widowed wife is also equally entitled to a share in the insurances and death benefits of deceased son= the 1st respondent and the appellant, being the wife and the mother of the deceased respectively, come within the meaning of Class I heirs as per Section 8 of the Hindu Succession Act, and therefore, the 1st respondent along with the appellant is entitled to a share in the amounts shown in the petition schedule as also the amount claimed by the appellant as counter-claim and also the death benefits payable by the employer of the deceased. =nomination does not confer any beneficial interest on the nominee and the amounts so received by the nominee are to be distributed according to Hindu Succession Act, 1956.

THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE B. CHANDRA KUMAR     Civil Miscellaneous Appeal No.941 of 2010     JUDGMENT:   (Per Hon’ble Sri Justice N.V. Ramana)             This civil miscellaneous appeal is directed against the order dated 30.08.2010 passed in O.P. No. 1634 of 2007 by the learned IV Additional District … Continue reading

supression of material fact of heart problem while reviving the policy, not entitled for assured sum on the death of policy holder=The complainant was the son and nominee of the life assured (Sarbati Devi) who had obtained a life insurance policy from the respondent for the sum of Rs.48,000/-. This policy lapsed because of non-payment of half-yearly premiums due on 28.09.1999 and thereafter. However, it was revived for the full assured amount on 04.12.2000 after necessary payment and on the basis of personal declaration dated 04.12.2000 of the life assured. The said life assured, however, died of heart attack on 09.12.2000, i.e., within one week of revival of the insurance policy. The LIC repudiated the insurance claim by its letter dated 08.06.2002 on the ground that at the time of revival of the policy,Sarbati Devi withheld material information regarding the status of her health.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2749 OF 2006 (From the order dated 20.07.2006 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 246 of 2004) Lal Chand, son of Shri Birbal Resident of village Kutipur P.O. Bhood Kalan, Khizerabad East                         Petitioner Tehsil Chhachhrauli                                              District Yamuna Nagar, Haryana versus Life Insurance Corporation of India Through its Manager (L & HPF)                              Respondent Divisional Office, Chandigarh                                 … Continue reading

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