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M.V. Act – COMPENSATION TO A CHILD = What is the just and fair compensation to be awarded to a child, who suffered disability in a motor accident, is the main point arising for consideration in this case.= In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another[4], this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts. 12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: – | HEAD |COMPENSATION AMOUNT | |Pain and suffering already |Rs.3,00,000/- | |undergone and to be suffered in | | |future, mental and physical shock, | | |hardship, inconvenience, and | | |discomforts, etc., and loss of | | |amenities in life on account of | | |permanent disability. | | |Discomfort, inconvenience and loss |Rs.25,000/- | |of earnings to the parents during | | |the period of hospitalization. | | |Medical and incidental expenses |Rs.25,000/- | |during the period of | | |hospitalization for 58 days. | | |Future medical expenses for |Rs.25,000/- | |correction of the mal union of | | |fracture and incidental expenses | | |for such treatment. | | |TOTAL:- |Rs.3,75,000/- | 13. The impugned judgment of the High Court in M.F.A. No. 1146 of 2008 is accordingly modified. The claimant will be entitled to a total compensation of Rs.3,75,000/- along with interest @ 6% per annum from the date of the petition. First respondent – Insurance Company is directed to deposit the enhanced compensation with interest as above within two months from today. On such deposit, it will be open to the appellant to approach the Tribunal for appropriate orders on withdrawal. The appeal is allowed as above.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40696 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7139 OF 2013 [Arising out of S.L.P.(Civil) No. 1676 of 2012] Master Mallikarjun … Appellant (s) Versus Divisional Manager, the National Insurance Company Limited & Anr. … Respondent (s) J U D G M E N T KURIAN, J.: Leave granted. 2. … Continue reading
Motor Vehicles Act Section 149(2)(a)(ii) = Breach of conditions under Section 149(2)(a) of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. – NO = even after it is proved that the licence possessed by the driver was a fake one, – whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh’s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.= On facts, in the instant case, the appellant employer had employed the third respondent Nirmal Singh as driver in 1994. In the process of employment, he had been put to a driving test and he had been imparted training also. The accident took place only after six years of his service in PRTC as driver. In such circumstances, it cannot be said that the insured is at fault in having employed a person whose licence has been proved to be fake by the insurance company before the Tribunal. As we have already noted above, on scanning the evidence of the licensing authority before the Tribunal, it cannot also be absolutely held that the licence to the driver had not been issued by the said authority and that the licence was fake. = In the above circumstances, the appeal is allowed. The fourth respondent – insurance company is liable to indemnify the appellant and, hence, there can be no recovery of the compensation already paid to the claimants. 11. There is no order as to costs.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40695 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8276 OF 2009 Pepsu Road Transport Corporation … Appellant (s) Versus National Insurance Company … Respondent (s) J U D G M E N T KURIAN, J.: 1. Breach of conditions under Section 149(2)(a) … Continue reading
“comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered.=whether in the case at hand, the policy is an “Act Policy” or “Comprehensive/Package Policy”. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a “comprehensive policy” but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a “package policy” to cover the liability of an occupant in a car. 23. In view of the aforesaid analysis, we think it apposite to set aside the finding of the High Court and the tribunal as regards the liability of the insurer and remit the matter to the tribunal to scrutinize the policy in a proper perspective and, if necessary, by taking additional evidence and if the conclusion is arrived at that the policy in question is a “Comprehensive/Package Policy”, the liability would be fastened on the insurer. As far as other findings recorded by the tribunal and affirmed by the High Court are concerned, they remain undisturbed. 24. Consequently, the appeal is allowed to the extent indicated above and the matter is remitted to the tribunal for the purpose of adjudication as directed hereinabove. There shall be no order as to costs.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8163 OF 2012 (Arising out of S.L.P. (Civil) No. 1232 of 2012) National Insurance Company Ltd. … Appellants Versus Balakrishnan & Another … Respondents J U D G M E N T Dipak Misra, J. Leave granted. 2. The singular issue that arises … Continue reading
a new truck/trolla was stolen. The FIR was lodged.The truck/trolla of the respondents was of 2001 Model. Its value as per the insurance policy for the period from 31.5.2003 to 30.5.2004 was Rs. 7 lacs. The theft had taken place on the night of 9.2.2004 i.e. after the expiry of about 8 months from the starting date of the insurance policy. Therefore, depreciation @10% would be justified. Therefore, the appellant is held entitled to the insurance claim for an amount of Rs.6,30,000/- (Rs.7,00,000/- – 10% i.e. Rs.70,000/-= Rs.6,30,000/-). However, the learned District Forum had applied the depreciation @40% which appears to be unjustified. 20. The interest awarded by the learned District Forum @9% p.a. from 12.5.2004 upto the furnishing of the indemnity bond by the appellant is upheld. The indemnity bond was to be furnished by the respondents as per the order of the learned District Forum within a period of 1 ½ months after the receipt of a copy of this order. Since the appellant had filed the appeal in this Commission after obtaining a copy of the impugned order dated 12.5.2004 on 9.8.2005, therefore, the interest is limited upto 30.9.2005. 21. The costs of Rs.1000/- are upheld.”- After obtaining the insurance policy the petitioner had used the abovesaid vehicle for about 9 months. The vehicle was purchased in the year 2001. The passage of nine months must have further depreciated the value of the said vehicle. Consequently, depreciation at the rate of 10% appears to be quite reasonable. The revision petition is therefore dismissed.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1928 OF 2011 (Against the order dated 01.03.2011 in First Appeal No. 1025 of 2005 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh) Inderjit Singh S/o Narinder Singh R/o House No. 17490, Gali Khadar Bhandar Wali, Bibi Wala Road, Bathinda … Petitioner Versus National Insurance Company Limited The Mall, Bathinda through its Divisional Manager, … Respondent BEFORE: HON’BLE MR. JUSTICE J.M. MALIK, … Continue reading
when the deceased earning only Rs.1500/- per month, his personal expenditure should be counted only at 1/10th of his income. even though the sons may be majors, in absence of income to them, they can be treated as dependents. Future prospects of income may be considered as 30% eventhough the deceased is not govt. employee. In the result, the appeal is allowed, the impugned judgment as also the award of the Tribunal are set aside and it is declared that the claimants shall be entitled to compensation of Rs.2,94,840 [Rs.1,500 + 30% of Rs.1,500 = Rs.1,950 less 1/10th towards personal expenses = Rs.1,755 x 12 x 14 =Rs.2,94,840]. The claimants shall also be entitled to Rs.5,000/- for transportation of the body, Rs.10,000/- as funeral expenses and Rs.10,000/- in lieu of loss of consortium. Thus, the total amount payable to the claimants will be Rs.3,19,840/-. The enhanced amount of compensation i.e. Rs.1,42,340/- (Rs.3,19,840 – Rs.1,77,500) shall carry interest of 7 per cent from the date of application till realisation. 18. Respondent No.1 – Insurance Company is directed to pay to the appellant the total amount of compensation within a period of three months by getting prepared a demand draft in her name which shall be delivered to her at the address given in the claim petition filed before the Tribunal. While doing so, respondent No.1 shall be free to deduct the amount already paid to the appellant..
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3723 OF 2012 (arising out of SLP (C) No. 24489 of 2010) Santosh Devi … Appellant Versus National Insurance Company Ltd. and others … Respondents J U D G M E N T G.S. SINGHVI, J. 1. Leave granted. 2. Feeling dissatisfied with … Continue reading
“The only contention raised by opposite party No.1 in the counter and the evidence affidavit is that the complainant failed to furnish the necessary documents justifying his claim. We can not appreciate such a contention as nobody making a claim would remain silent without sending the copies of the documents justifying the claim arising out of the accident. In fact exhibit B10 relied on by the opposite parties 1 and 2 makes it clear that there was the claim by the complainant as early as on 7-12-2006. It is significant to note that opposite party No.1 himself filed exhibit B10. When the complainant made the claim, he would have definitely enclosed the necessary documents. Exhibit B10 discloses that along with the letter dated 7-12-2006 the complainant had also enclosed copy of the FIR, copy of the RC, copy of RTA permit, claim form, given by the opposite party No.3, and also the driver’s license. So opposite party No.1 cannot be permitted to say that the complainant had not enclosed the necessary documents.”
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3657 OF 2011 (Against the order dated 28.07.2011 in FA No.611/2011 & FA No.1196/2009 of the State Commission, Andhra Pradesh) National Insurance Company Ltd. D.O.-I, P.B. No.236, Jhaveri Mansion, Bank Street, Hyderabad ……….Petitioner Versus 1. Mohd. Ishaq, S/o M.A. Hafiz, R/o. 9-4-77/A/149, A1- Hasnath Colony, Tolichowki, Hyderabad 2. NIC … Continue reading
loss due to burglary and house breaking (theft following upon an actual forcible and violent entry). = The case of the Complainant M/s Biswanath Traders before the State Commission was that they were storage agent of the State Civil Supply Corporation; in which capacity they had a storage godown in Jagathsinghpur District. Stocks of rice, wheat, sugar etc. stored in this godown were covered under a policy of protection against burglary and house breaking up to a limit of Rs.6 lakhs. The policy was taken on 15.7.1999 and was designed to indemnify the insured against any loss due to burglary and house breaking (theft following upon an actual forcible and violent entry). =It is not the case of the appellant/National Insurance Company, that the burglary was occasioned by any act of commission or omission on the part of the complainant. Therefore, the question of violation of the terms of the policy does not arise. 13. As for resort to the exclusion clause 4 (a) to justify the repudiation, we note that the case of the appellant/insurance company does not travel beyond stating that the burglary occurred two days after the cyclone. The State Commission has therefore noted the absence of any material, which could suggest that the burglary happened because of the cyclone. It is also not the case of the appellant that the cyclone had so destroyed or damaged the godown as to expose the stocks to burglars. The Written Response of the OP (appellant before us) shows that the burglars had forced opened the grill gate to enter the godown. This kind of forcible entry could have taken place even before the cyclone. Therefore, in our view, the State Commission has rightly and justifiably rejected the argument of the insurance company and rejection of the claim by resort to exclusion 4(a). 14. In the result, we find no merit in this appeal.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 673 OF 2006 (Against the order dated 18.8.2006 in C.D. Case No.86 of 2001 of the State Commission, Orissa) National Insurance Company Ltd., Cuttack Divisional Office –II, Managalabag, Cuttack Through Regional Office –I, Jeewan Bharti Building, Connaught Circus, New Delhi- 110 001 ……….Appellant Versus … Continue reading
workmen compensation =Whether the vehicle in question was insured at the time of accident i.e. on 3rd April, 1998 is a question of fact. After appreciating the evidence, the High Court came to the conclusion that the vehicle in question was not insured on 3rd April, 1998 and the vehicle in question had been insured for a period commencing from 3rd March, 1997 to 2nd March, 1998. The High Court has recorded sound reasons for coming to the said conclusion after carefully appreciating the evidence adduced before the Commissioner. Postage book of the Insurance Company shows that the insurance policy was dispatched on 25th March, 1997. This clearly denotes that the policy was taken prior to 25th March, 1997 and, therefore, the High Court rightly believed the version of the Insurance Company. This fact rules out the possibility of the vehicle being insured on 3rd April, 1998 as submitted on behalf of the respondent workmen and the appellant. Moreover, the cover note relied upon by the respondent workmen was not found to be genuine by the High Court. We are, therefore, in agreement with the view expressed by the High Court. 14. Looking to the facts of the case, in our opinion, no legal issue is involved in these appeals and there is no reason to interfere with the findings arrived at by the High Court, which appear to be just and proper.
1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7170-74 OF 2005 S.M. SHARMILA …..APPELLANT. VERSUS NATIONAL INSURANCE CO.LTD. & ORS. …..RESPONDENTS. J U D G M E N T ANIL R. DAVE, J. 1. As issues involved in all these appeals are common, all the appeals are heard together … Continue reading
exceeding the claim, more amount can be granted in suitable case.= amendments can also be permitted =under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award “just” compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition.”
NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.8943 OF 2011 (Arising out of S.L.P. (C) No.25372 of 2005) Ibrahim …….Appellant Versus Raju and others …….Respondents J U D G M E N T G.S. Singhvi, J. 1. Delay condoned. 2. Leave granted. 3. Feeling dissatisfied with the enhancement granted by … Continue reading
Insurance – Insurance company agreed to insure timber – Timber washed away due to flood – Insurance company repudiated claim in 1988 -Complaint filed in 1994 – Dismissed by National Consumer Commission as time barred – On facts, held: On date of flood, there was no insurance policy in existence nor any commitment on behalf of insurance company to make payment – Even accepting the case at its very best that the period of limitation was 3 years under s.44 of the Limitation Act, the complaint was, even then, beyond time – No case made out for interference by Supreme Court – Limitation Act, 1963 – s.44. Contract Act, 1872 – s.28 – Contract of insurance – Clause providing for forfeiture or waiver of the right itself if no action was commenced within period stipulated – Held: Not violative of s.28 – Though curtailment of period of limitation is not permissible in view of s.28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. Respondent insurance company agreed to insure timber lying in forest areas of the State and issued cover note followed by an insurance policy to be purportedly valid for one year from 6th November, 1987 onwards. The timber was washed away some time in September, 1988 on account of heavy rains and consequent large scale flooding in the State. When appellant laid claim before the respondent, the latter vide its communication dated 13th October 1988 refuted its liability and repudiated the claim contending that the insurance policy was issued for 8 months only starting from 6th November, 1987 and ending on 5th July, 1988 and the period of one year mentioned in the policy was on account of a typographical mistake. It is alleged that Respondent even accepted additional premium after the policy was repudiated and still declined to make good the loss. Appellant filed complaint before National Consumer Commission. The Complaint was dismissed as time barred having been filed after expiry of the 12 months period stipulated by Clause 6(ii) of the insurance policy. The order passed by the National Consumer Commission was challenged in the present appeal on grounds that Clause 6(ii) of the insurance policy could not be sustained being violative of s.28 of the Contract Act, 1872 and in any event s.44 of the Limitation Act, 1963 provided a limitation period of 3 years from the date of disclaimer. =Dismissing the appeal, the Court HELD:1. It is clear from the record that the timber had been washed away some time in September, 1988 and after prolonged correspondence, the respondent ultimately vide its communication dated 13th October, 1988 repudiated the appellant’s claim. It is also clear from the counter affidavit filed by the respondent that the appellant had, vide its letter dated 7th November 1987, asked for insurance cover for a period of 8 months and that the period of one year fixed in the insurance policy was evidently a typographical mistake which had, in any case, been rectified in the records of the company on 17th December 1987, that is long before the flood. The claim of the appellant that the respondent company had, even after the 13th October 1988, impliedly admitted its liability under the policy also appears to be incorrect as the surveyors had been appointed on the persistent demand of the claimant/appellant and the premium taken thereafter was only to make good the deficiency in the premium that had been paid for the policy for the period of eight months. It is, therefore, apparent that as on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. Therefore, even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994. [Para 5] [1018-G-H; 1019-A-D] 2. As regards the issue of clause 6 (ii) of the insurance policy vis-a-vis s.28 of the Contract Act, 1872, the National Commission had relied upon the Sujir Nayak’s case to hold that the complaint could not be entertained as being time barred. In Sujir Nayak’s case, while dealing with an identical situation where a contract contained a provision prescribing a period of limitation shorter than that prescribed by the Limitation Act, it was held that the contractual provision was not hit by s.28 as the right itself had been extinguished. The plea of the appellant that in view of the Food Corporation of India’s case, the Sujir Nayak’s case was liable for reconsideration has no merit since in Sujir Nayak’s case, Food Corporation of India’s case was specifically considered. [Paras 6, 8 and 9] [1019-D; 1021-B-D] National Insurance Co. Ltd. vs. Sujir Ganesh Nayak & Co. & Anr. (1997) 4 SCC 366; Food Corporation of India vs. New India Assurance Co. Ltd. & Ors. (1994) 3 SCC 324; Vulcan Insurance Co. Ltd. vs. Maharaj Singh & Anr. (1976) 1 SCC 943 and Muni Lal vs. Oriental Fire & General Insurance Co. Ltd. & Anr. (1966) 1 SCC 90, referred to. Case Law Reference: (1997) 4 SCC 366 referred to Para 3 (1994) 3 SCC 324 referred to Para 3 (1976) 1 SCC 943 referred to Para 3 (1966) 1 SCC 90 referred to Para 3 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6347 of 2000. From the final Judgment and Order dated 16.8.2000 of the National Consumer Disputes Redressal Commission, New Delhi in Original Petition No. 95 of 1994. Naresh K. Sharma for the Appellant. K.L. Nandwani and Debasis Misra for the Respondent. =, , , 2009(1 )SCALE216 , 2008(13 )JT66
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6347 OF 2000 H.P. State Forest Company Ltd. ……..Appellant Vs. M/s. United India Insurance Co. Ltd. …….Respondent JUDGMENT HARJIT SINGH BEDI,J. 1. The facts leading to this appeal are as under: 2. In October 1987, a meeting was convened by the Managing … Continue reading
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