In FAO-5195-2016 (O&M)- PUNJ HC- It is for the Insurance Company to discharge the onus that insured is guilty of violating terms and conditions of insurance policy, reaffirms P&H HC
Justice Sukhvinder Kaur [25-05-2023]

Read Order:Bhateri And Ors Vs. Jaimal & Others

Tulip Kanth

Chandigarh, May 26, 2023 : The Punjab and Haryana High Court has partly allowed an appeal filed by the claimant for modification of an award passed by the Rohtak Motor Accident Claims Tribunal while also setting aside the finding of the Tribunal whereby the insurance company had been exonerated and the liability had been fastened upon the driver & owner of the vehicle.

“As per settled proposition of law, it is for the insurance company to discharge the onus that the insured is guilty of violating the terms and conditions of the insurance policy, constituting a defence in favour of the insurer”, Justice Sukhvinder Kaur held.

The facts of this case were such that the son of the appellant/claimant-Bhateri was employed as Helper on a light transport vehicle and one day while going with the owner of the vehicle to Meham from Hansi, a truck being driven by its driver-respondent at a high speed and in a rash and negligent manner, hit their vehicle. 

Resultantly, the appellant's son & the owner sustained multiple grievous injuries and were taken to General Hospital Meham.The appellant's son succumbed to his injuries. It was pleaded that at the time of his death, he was 27 years old and was earning Rs.15,000 per month. His mother was dependant upon him. In view of these averments, an amount of Rs 40 lakhs as compensation was claimed by the claimant from respondents being driver, owner and insurer of the offending vehicle.

The Bench observed that the Tribunal rightly observed that as no document had been placed on record that deceased son was getting Rs 15,000 per month by working as a Helper on the said vehicle, so income of the deceased for the purpose of determination of compensation was to be taken as minimum wages of an unskilled worker fixed by the State Government. The Tribunal had rightly taken the notional income of the deceased for the purpose of compensation as Rs.6,000  per month, the Bench held.

The Bench noted that as per the ratio of law laid down by the Apex Court in National Insurance Company Limited Vs. Pranay Sethi, addition of 40% in the income of the deceased/Sonu was required to be made by the Tribunal which had not been done

The High Court also noticed that the Tribunal had committed an error while taking into consideration the age of the claimant/the mother of the deceased for choosing the multiplier. In view of the fact that age of the deceased to be 27 years, multiplier of 17 was to be applied in the present case, to assess the total loss of dependency. 

It was held that the claimant was entitled to get the compensation under the conventional head i.e. Rs.15,000 on account of loss of estate and Rs 15,000 as funeral expenses. So the total compensation that was to be granted came to Rs 8,86,800.

The driver and the owner of the vehicle were aggrieved of the fact that the insurance company had been exonerated on the ground that the driver of the offending vehicle was not holding a valid driving license to drive the offending vehicle and it was held that it amounts to violation of terms and conditions of the insurance policy. 

The Bench opined that from the evidence on record, it transpired that absolutely no evidence had been led by the insurance company to prove that driving license was fake and was not a genuine driving license. As per the Bench, nothing was brought on record by the insurance company, in order to prove that license was fake and not valid, so as to result in violation of terms and conditions of the insurance policy.

“ So when it has not been proved that driving license Ex.R6 was fake, then it cannot be said that terms and conditions of the insurance policy had been violated by respondents No.1 and 2. So finding of the Tribunal whereby the insurance company has been exonerated and the liability has been fastened upon respondents No.1 and 2 is set aside and it is held that the liability of all the respondents to pay the compensation shall be joint and several and no recovery rights will be available to respondent No.3/insurance company”, the Bench held while partly allowing their appeal.