Jaya and Ors. Vs. Sopan and Ors. (Neutral Citation: 2024:BHC-NAG:6437) - (High Court of Bombay) (24 Jun 2024)

If there is a fundamental breach of policy, Insurance Company has to pay compensation amount to claimants and thereafter, can recover the same from the owner of the vehicle

MANU/MH/3742/2024

Motor Vehicles

The claim petition was preferred under Section 166 of the Motor Vehicles Act, 1988 by the Appellants being dependants of the deceased and have claimed compensation for accidental death. The Tribunal by the impugned judgment and award partly allowed the petition directing respondent No. 1, the owner of vehicle, to pay Rs. 10,29,000 to the Appellants including the 'no fault liability' as compensation along with interest at the rate of 8% per annum from the date of the claim petition till its full realization.

The Tribunal absolved Respondent No. 2-Insurer and dismissed the petition against it. Feeling aggrieved with the dismissal of claim petition against the Insurer as well as on the premise of awarding lesser compensation, the Appellants have filed the present appeal.

Perusal of the impugned order goes to show that the driving licence produced by respondent No. 1 is issued to him on 9th November, 2015, whereas the date of accident is 18th June, 2015. Therefore, the Tribunal was right in holding that, Respondent No. 1 was not holding a valid driving licence at the time of accident.

If there is a fundamental breach of the policy, the Insurance Company has to pay the compensation amount awarded to the claimants and thereafter recover the same from the owner of the vehicle in question. Therefore, in the wake of this legal position, dismissal of the claim of the appellants against the Insurer by the Tribunal is not correct. Therefore, at the first instance, Respondent No. 2 has to pay the compensation amount to the Appellants and thereafter Respondent No. 2 may recover the same from respondent No. 1.

The deceased was below the age of 40 years and was self-employed, and, therefore, addition of 40% of the established income should be added in view of the decision of the Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi and others.

With regard toloss of consortium, the Tribunal has granted amount of Rs. 1,25,000 towards damages for severance, suffering and trauma, love and affection as a consequence of the death. In the decision of the Pranay Sethi, the Supreme Court has held that, spouse shall be entitled at the rate of Rs. 40,000 towards loss of consortium. The Supreme Court has also fixed the figure towards the funeral expenses and loss of estate at Rs. 15,000 each. The amount fixed under the above heads are subject to enhancement at the rate of 10% after every three years from the year 2017 onwards.In view of the law enunciated by the Supreme Court, Appellant No. 1, appellant Nos. 2 to 4 and appellant No. 5 would be entitled to Spousal Consortium, Filial consortium and Parental Consortium, respectively at the rate of Rs. 40,000 each.

The award passed by the impugned order is modified. Respondent Nos. 1 and 2 are jointly and severally liable to pay Rs. 14,39,600 to the claimants including 'no fault liability' as a compensation under Section 166 of the Act with interest at the rate of 9% per annum from the date of claim petition till its realization.After the compensation is paid to the appellants, respondent No. 2 is entitled to recover the compensation from respondent No. 1.Appeal is partly allowed

Tags : ACCIDENTAL DEATH COMPENSATION ENHANCEMENT