NEW INDIA ASSURANCE COMPANY LIMITED Vs. MAINA DEVI

JUDGEMENT

(1.) The instant appeal is directed against the impugned award rendered upon MACT No. 0000028 of 2014 by the learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, District Shimla, whereby he assessed upon the claimant, compensation amount constituted in a sum of Rs. 12,14,000.00 along with interest @ 7.5% per annum from the date of filing of the petition till its deposit. The liability with respect to liquidation of the aforesaid compensation amount stood jointly and severely fastened upon the respondents. However, the respondent/Insurance company concerned stood directed to, initially deposit the entire compensation amount, however, it was held entitled to recover from the co-tortfeasors arrayed as respondents No. 1 and 2, "the amount exceeding" the apposite liability contemplated under a mandate recorded by the Honourable Apex Court in its judgment reported in National Insurance Co. Ltd. Vs. Anjana Shyam and others, (2007) 7 Supreme Court Cases 445 "to be" hence fastenable upon it.

(2.) The learned counsel appearing for the insurance company, has contended with vigor before this Court, that the conclusion recorded by the learned Tribunal with respect to the deceased being aged 22 years, at the time contemporaneous to the ill-fated occurrence, is inapt, besides he proceeds to contend that its computing compensation upon the claimant "by its", hence erroneously taking the age of the deceased to be 22 years, whereupon it further proceeded to, in consonance with the verdict pronounced in Sarla Verma's case, "apply" upon the figure of annual dependency, a multiplier of 18, is concomitantly also rendered erroneous. He contends, that hence the award of the learned Tribunal warranting modification. The aforesaid contention reared before this Court by the learned counsel appearing for the Insurance Company is wholly unacceptable, as PW-1, "during" the course of her examination-in-chief had tendered her affidavit borne on Ext. PW1/A, had also thereat tendered the apposite post mortem report comprised in Ext. PW1/C, wherein the age of the deceased, is reflected to be 22 years. Apparently, hence, she apart from the aforesaid reflections held in the aforesaid exhibit "with respect" to the age of the deceased "at" the time contemporaneous to the ill-fated occurrence, omitted to adduce, on record, either the birth certificate of the deceased or the abstract of the relevant Pariwar Register, revealing therein the precise age of the deceased. However, "though" at the time when Ext. PW1/C stood adduced into evidence by the claimant, the learned counsel for the insurance company "had" an opportunity to cross-examine her, with respect to the authenticity of the reflections borne therein, with respect to the precise age of the deceased at the apposite stage of occurrence of the ill-fated mishap involving the offending vehicle, yet the learned counsel for the insurance company omitted to thereat make any concert for ripping apart the authenticity "of the" aforesaid reflection(s) borne in Ext. PW1/C. Consequently, the reflection occurring in Ext. PW1/C with respect to the age of the deceased, at the time contemporaneous to the ill-fated mishap, is construed to be truthful, it emanating on the doctor concerned while making the aforesaid reflections in Ext. PW1/C, his being thereat purveyed, the relevant disclosures in respect therewith by the claimant, disclosures whereof are hence to be concluded to emanate from the relevant best evidence, comprised in the birth certificate of the deceased, besides are to be construed to emanate from the apposite Pariwar Register "maintained" by the Panchayat concerned. Since, the learned counsel for the insurance company, at the time of tendering into evidence of Ext. PW1/C by PW-1, did not thereat make any concert to belie the aforesaid reflections held therein nor when he, through an appropriate application, subsequently sought the leave of the Tribunal, for adducing/requisioning "the" relevant records from the Panchayat concerned or from all the other relevant quarters "maintaining records" with respect to the precise date of birth of the deceased, thereupon when significantly "only" upon the aforesaid records "on" standing permitted to be requisitioned by the learned Tribunal "from" all the quarters concerned, would have ensured adduction of best evidence for belying the age of the deceased disclosed in EXT. PW1/C, yet when they, for want of efforts in respect thereof, did not come to be adduced before it, thereupon conclusivity is acquired by the reflections borne in Ext. PW1/C with respect to the age of the deceased "at the" time contemporaneous to the occurrence of the ill-fated mishap involving the offending vehicle. Consequently, the omission(s), by the learned counsel appearing for the insurance company, to make the aforesaid efforts, thereupon reiteratedly beget a conclusion that the reflections with respect to the age of the deceased borne in Ext. PW1/C hold conclusivity. Further more, the learned counsel for the Insurer has heavily depended upon the purported mis-reflections with respect to the precise age of the deceased displayed in Ext. PW1/C, for canvassing qua any reliance thereupon by the learned Tribunal for its applying the relevant multiplier upon the figure of annual dependency worked by it, also thereupon sequelling mis-computation of compensation upon the claimant.

(3.) The learned counsel for the insurance company has conceded that the award of the learned Tribunal, whereby it fastened liability qua its indemnification upon the insurer "being amenable to interference" only with respect to the fastening of liability "upon it" qua indemnification to the claimant "the compensation amount", falling outside the ambit of the relevant insurance cover. Also, he submits that only in the event of the operative portion of the verdict recorded by the learned Motor Accident Claims Tribunal "upon the apposite claim petition falling within" the domain of its liability contemplated in the relevant contract of insurance would thereupon render it to warrant vindication. However, he proceeds to submit, that though the learned Tribunal has partly correctly applied the verdict of the Honourable Apex Court, borne in its judgment titled as National Insurance Co. Ltd. Vs. Anjana Shyam and others, (2007) 7 Supreme Court cases 445, "yet in" the learned Tribunal, in the operative part of the impugned award, also fastening liability of indemnification upon the insurance company concerned, with respect to compensation amount "in excess therewith" "by its ordering" that the "relevant excess" being initially deposited by the insurance company, where after in respect thereto "it stood entitled to recover it" from the owner of the offending vehicle, it has hence grossly mis-applied hereat "the principle of pay and recover", principle whereof stands propounded in judgment(s) titled as United India Insurance Co. Ltd. Vs. Lehru and others, 2003 ACJ 611, United India Insurance Co. Ltd. Vs. Sujata Arora and others, 2013 ACJ 2129, Pushkar Mehra Vs. Brij Mohan Kushwaha and others, (2015) 12 Supreme Court Cases 688, National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 ACJ 1, Jawahar Singh Vs. Bala Jain and others, (2011) 6 Supreme Court Cases 425 and Kusum Lata and others Vs. Satbir and others, (2011) 3 Supreme Court Cases 646. He fortifies his submission by contending that "the principle of pay and recover", contemplated in the aforesaid judgments "is" rendered applicable "only when" there is a gross/palpable breach of terms and conditions of the insurance policy, breach whereof stand(s) comprised in the driver concerned of the offending vehicle "evidently" being unauthorized to drive 'it" at the relevant time, "whereas" in the instant case, there being "none" of the aforesaid gross palpable breach(s) of the terms and conditions of the insurance policy, significantly, when the driver concerned of the offending vehicle "is" not demonstrated to be dis-empowered "to", at the relevant time, drive the relevant vehicle, whereupon he contends that the relevant contract of insurance enjoining the insurer concerned, to satisfy the impugned award, rendered hereat, by the learned Tribunal, "rather only" within the ambit of the applicable hereat, verdict rendered by the Honourable Apex Court, in a case titled as National Insurance Co. Ltd. Vs. Anjana Shyam and others, (2007) 7 Supreme Court cases 445, wherein a legal exposition exists with respect to the limit of fastening of liability upon the insurer, in the event of their occurring "no" evident breach of the terms and conditions of insurance policy, especially when breach thereof "does not" evidently ensue from the driver of the offending vehicle "not" at the relevant time being dis empowered to drive the vehicle concerned, rather when the relevant breach "spurs from" the vehicle concerned carrying passengers therein "in excess" of the insurable permissible limit(s). Consequently, he contends that when the passengers carried in the relevant vehicle were evidently beyond the insurable limit with respect to theirs being carried therein, "besides when" with the evidently tritely applicable hereat "of" the verdict pronounced by the Honourable Apex Court in National Insurance Co. Ltd. Vs. Anjana Shyam and others, (2007) 7 Supreme Court cases 445, bars the learned Tribunal from making any deviation therefrom "whereas" the learded Tribunal evidently deviating therefrom, deviation "whereof" is comprised in its misapplying hereat the irreverable "principle of pay and recover" upon the figure of/sums of, compensation amount "falling outside" the contracted insurable limit, conspicuously with respect to the number of passengers being permissibly carried in the relevant vehicle "where after it" untenably in respect of indemnification thereof "fastened" liability upon the insurer, thereupon the relevant operative part of the verdict of the learned Tribunal, is rendered amenable for interference. He contends that it was hence conspicuously impermissible for the learned Tribunal "to" proceed to apply the mandate of the Honourable Apex Court comprised in its verdict, titled as United India Insurance Co. Ltd. Vs. Lehru and others, 2003 ACJ 611, United India Insurance Co. Ltd. Vs. Sujata Arora and others, 2013 ACJ 2129, Pushkar Mehra Vs. Brij Mohan Kushwaha and others, (2015) 12 Supreme Court Cases 688, National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 ACJ 1, Jawahar Singh Vs. Bala Jain and others, (2011) 6 Supreme Court Cases 425 and Kusum Lata and others Vs. Satbir and others, (2011) 3 Supreme Court Cases 646, "imperatively", when reiteratedly the aforesaid verdicts' are rendered applicable "only on" evident display of occurrence of open flagrant breach of the terms and conditions of insurance policy, breach whereof standing aroused by an evident display of the driver concerned "not" at the relevant time holding any authorization to drive the relevant vehicle. The aforesaid submission of learned counsel for the insurer has immense vigor. The verdicts rendered by Honourable Apex Court United India Insurance Co. Ltd. Vs. Lehru and others, 2003 ACJ 611, United India Insurance Co. Ltd. Vs. Sujata Arora and others, 2013 ACJ 2129, Pushkar Mehra Vs. Brij Mohan Kushwaha and others, (2015) 12 Supreme Court Cases 688, National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 ACJ 1, Jawahar Singh Vs. Bala Jain and others, (2011) 6 Supreme Court Cases 425 and Kusum Lata and others Vs. Satbir and others, (2011) 3 Supreme Court Cases 646, wherein "the principle of pay and recover" stands propounded are evidently applicable "only" when there is an open breach of the terms and conditions of the insurance policy, breach whereof, is comprised in the driver concerned "not" at the relevant time holding any authorization to drive the offending vehicle concerned. Further, "only" on evident emanation of the aforesaid manner of breach of the terms and conditions of the relevant insurance cover, breach whereof has evidently "not" occurred hereat, "would hence" render the application of "the principle of pay and recover" by the learned Tribunal with respect for its hence fastening apposite liability of indemnification "of" compensation amount upon the insurer to be vindicable, "whereas" with the aforesaid breach being amiss hereat, thereupon the application hereat of the principle of pay and recover is grossly inapposite. Moreover, since the Honourable Apex Court in its judgment rendered in National Insurance Co. Ltd. Vs. Anjana Shyam and others, (2007) 7 Supreme Court cases 445, has with respect to limit(s) in respect whereof "awards" warrant indemnification/satisfaction "by the" insurance company "has therein", conspicuously with the aforesaid manner of breach "of" the terms and conditions of the insurance policy contemplated in 2003 "not" evidently occurring "rather" when the relevant breach occurs upon the passengers carried in the relevant vehicle being beyond the insurable capacity thereof "as is" the evident breach hereat "carved an exception" to the application of the principle of pay and recover, as stands propounded in United India Insurance Co. Ltd. Vs. Lehru and others, 2003 ACJ 611, United India Insurance Co. Ltd. Vs. Sujata Arora and others, 2013 ACJ 2129, Pushkar Mehra Vs. Brij Mohan Kushwaha and others, (2015) 12 Supreme Court Cases 688, National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 ACJ 1, Jawahar Singh Vs. Bala Jain and others, (2011) 6 Supreme Court Cases 425 and Kusum Lata and others Vs. Satbir and others, (2011) 3 Supreme Court Cases 646, thereupon the special principle carved in National Insurance Co. Ltd. Vs. Anjana Shyam and others, (2007) 7 Supreme Court cases 445 by the Honourable Apex Court "with" respect to the quantum or extent of the apposite liability being fastenable upon the insurer, on occurrence "of" in consonance with the mandated therein relevant breach, breach whereof likewise occurs here before, warrants deference thereto. Therefore, this Court is constrained "to" conclude that "the special principle" carved in the verdict of Honourable Apex Court titled as National Insurance Co. Ltd. Vs. Anjana Shyam and others, (2007) 7 Supreme Court cases 445 being tritely applicable hereat. Contrarily, the principle enunciated by Honourable Apex Court in United India Insurance Co. Ltd. Vs. Lehru and others, 2003 ACJ 611, United India Insurance Co. Ltd. Vs. Sujata Arora and others, 2013 ACJ 2129, Pushkar Mehra Vs. Brij Mohan Kushwaha and others, (2015) 12 Supreme Court Cases 688, National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 ACJ 1, Jawahar Singh Vs. Bala Jain and others, (2011) 6 Supreme Court Cases 425 and Kusum Lata and others Vs. Satbir and others, (2011) 3 Supreme Court Cases 646 is inapplicable "it" being singularly applicable "only" when there is an open flagrant evident breach of terms and conditions of the insurance policy, breach whereof, is aroused by the factum of the driver concerned of the relevant vehicle evidently "not" at the relevant time holding any authorization to drive it, whereas the aforesaid manner of breach of the insurance cover is amiss hereat rather the relevant breach hereat, "is with" respect to the insurable passenger carrying limit of the relevant vehicle, in respect whereof, the Honourable Apex Court has carved "a special principle" with respect to the extent of the apposite liability of indemnification being fastenable upon the insurance company. Reiteratedly with the impugned verdict not fully meting compliance with the applicable hereat verdict, the same is quashed to the relevant extent. Consequently, the portion of award of the learned Motor Accident Claims Tribunal, wherein it, with respect "to that portion", figure of compensation amount, "exceeding" the apposite indemnifiable liability "untenably" in consonance with the verdict(s) of the Honourable Apex Court in United India Insurance Co. Ltd. Vs. Lehru and others (Supra), United India Insurance Co. Ltd. Vs. Sujata Arora and others (Supra), Pushkar Mehra Vs. Brij Mohan Kushwaha and others (Supra), National Insurance Co. Ltd. Vs. Swaran Singh and others (Supra), Jawahar Singh Vs. Bala Jain and others (Supra) and Kusum Lata and others Vs. Satbir and others, (Supra) fastened liability upon the insurer is quashed and set aside.