Madhya Pradesh High Court
Smt. Kapori Devi And Ors. And Munna Singh ... vs Bidharam Koli And Ors. on 4 November, 2006
Equivalent citations: 2008ACJ466, 2007(2)MPHT365, AIR 2007 (NOC) 755 (M. P.) = 2007 A I H C 284, 2007 (2) ABR (NOC) 265 (M. P.) = 2007 A I H C 284, 2007 A I H C 284, (2008) 1 ACJ 466, (2007) 2 TAC 554, (2007) 1 JAB LJ 250, (2007) 1 MPLJ 302, (2007) 2 MPHT 365, (2007) 50 ALLINDCAS 551 (MPG), (2007) 4 ACC 415, (2007) 3 CIVLJ 795
Author: P.K. Jaiswal
Bench: Chief Justice, P.K. Jaiswal
ORDER P.K. Jaiswal, J.
1. This order shall also govern disposal of M.A. No. 179/2001 Munna Singh and Ors. v. Bidharam Koli and Ors. Both the appeals under Section 173 of the Motor Vehicles Act, 1988 (in short "the Act") arise out of a common award dated 22-3-2000 passed under Section 168 of the Act by the Sixth Additional Motor Accident Claims Tribunal Gwalior (in short "Tribunal") directing payment of compensation of Rs. 4,97,440/- in Claim Case No. 34/98 and Rs. 2,74,000/- in Claim Case No. 36/98.
2. Facts giving rise to these appeals are thus:
On 20-7-1998 at about 8:00 PM the deceased Hannu Kushwaha, who was working as Gangman was waiting for a bus at Jalalpur Square. At that time, an Auto bearing registration No. M.P. 07 A-1418 driven by Pawan Lodhi came and deceased have fixed the fare and sat in the Auto. When the Auto reached near Sharma Farm, Sanvida Gas Go-down, Gwalior at 8:30 PM at that time Tanker owned by respondent No. 2 bearing registration No. C.P.G. 4595 coming from Gole Ka Mandir side was driven by the respondent No. 1 - Bidharam Koli in a rash and negligent manner dashed the said Auto, causing several multiple injuries to all the three persons which included two passengers, who were travelling in the said Auto and Auto driver. Hannu Kushwaha and Badri Kirar, who were travelling in the Auto died on the spot. Pawan Lodhi sustained severe injuries, he was immediately taken to the hospital, but during treatment he died.
3. The legal heirs of the deceased Hannu Kushwaha filed claim petition under Section 166 of the Act before the Tribunal against the owner, driver and insurer of Tanker claiming compensation to the tune of Rs. 15,44,200/- on the ground that at the time of accident deceased was aged 38years and was working as Gangman in CPWI Department of Railway and his salary was Rs. 4905/- per month.
4. The legal representatives of the deceased Pawan Lodhi filed claim petition under Section 166 of the Act before the Tribunal against the owner, driver and insurer of Tanker claiming compensation to the tune of Rs. 6,15,000/- on the ground that at the time of death the deceased Pawan Lodhi was 25 years of age and he was working as driver and his salary was Rs. 2,000/- per month. Apart from the salary he was also getting daily allowance at the rate of Rs. 40/-per day. Before the Tribunal, the respondent No. 2 - Tanker Owner was proceeded exparte. The respondent No. 3 - Insurance Company in reply to the claim petitions stated that the Tanker (CPG-4595) was not insured with the Company. No cover note was issued because owner failed to make the payment of premium.
5. Bharat Singh (A.W. 3) eye witness of the accident, who was present on the spot on 20-7-1998 and had seen the accident lodged FIR at Police Station Hazeera. The offence under Sections 279 and 304A of IPC was registered by the police authorities. After investigation challan was filed and criminal case was registered against the respondent No. 1 as Crime No. 0259/98.
6. Bharat Singh (A.W. 3) eye-witness of the accident in Paras 2.3 and 4 of his statement stated that the accident had occurred due to rash and negligent driving by the respondent No. 1 - Tanker Driver. This fact was not opposed by the respondents nor any evidence was produced in this respect. The Tribunal after appreciating the evidence of independent witness came to the conclusion that the accident occurred due to rash and negligent driving by the tanker driver, and therefore, held that it is not a case of contributory negligence and since there was no negligence on the part of the Auto Driver, therefore, the owner and Insurance Company of Auto Driver are exonerated and held that they are not liable to pay any amount of compensation.
7. The finding regarding rash and negligent driving is not under challenge.
8. The deceased Hannu Kushwaha was working in the Railway Department, but no document was filed by the claimants regarding the date of birth of the deceased or service record to prove the exact date of birth of the deceased, and therefore, the Tribunal relied on the post-mortem report Exh. P-7 and recorded a finding that at the time of death deceased was 40 to 45 years of age.
9. In respect of income of the deceased (Hannu Kushwaha) the salary statement of April, 1998 (Exh. P-1) was filed. As per salary certificate (Exh. P-2) issued by the employer on 14-9-1999 the salary of deceased Hannu Kushwaha was Rs. 4,087/-. H.P. Verma (A.W. 4) who was working as Chief Railway Line Inspector in the Railway Department, para 4 of his statement stated that Exh. P-2 is salary certificate issued by his department which was prepared by him and the basic pay of the deceased was Rs. 2910/-, dearness allowance was Rs. 640/-, House Rent Allowance was Rs. 437/-, City Allowance was Rs. 25/- and Vehicle Allowance was Rs. 75/-, the total salary was Rs. 4087/-. He in Para 5 of his statement stated that Exh. P-1 is salary statement of April, 1998 in which Rs. 731/- was added as Travelling Allowance because when employee went out of the place then he gets travelling allowance at the rate of Rs. 55/- per day. He in Para 7 of his statement stated that if the deceased was alive on 11-10-2000 then he would have been getting salary of Rs. 4786/-. In view of the above statement of H.P. Verma (A.W. 4), Tribunal came to the conclusion that at the time of death the deceased was getting salary Rs. 4087/- and the yearly income of the deceased was Rs. 49,044/- (4087 x 12 = Rs. 49044/-). After deducting 1/3rd towards his personal expenses the annual dependency of the appellants comes to Rs. 32,696/-. At the time of death, the deceased was 41 years of age, therefore, as per II Schedule framed under the Act after applying the multiplier of 15, the Tribunal determined the compensation at Rs. 4,90,440/-. In other heads, the Tribunal awarded Rs. 5,000/- towards loss of consortium and Rs. 2,000/- towards funeral expenses. Thus, Tribunal total awarded Rs. 4,97,440/- to the appellants in Claim Case No. 34/98 with interest at the rate of 12% per annum from the date of filing of the claim petition.
10. In Claim Case No. 36/99, which was filed by the legal heirs of Pawan Lodhi, the claimants in their claim petition as well as in their evidence adduced before the Tribunal stated that the deceased Pawan Lodhi was working as Auto Driver and his income was Rs. 2,000/- per month and he was getting daily allowance at the rate of Rs. 40/- per day. In post-mortem report, Exh. P-15 the age of the deceased was shown as 24 years and therefore, on the basis of the said material on record the Tribunal came to the conclusion that at the time of death the deceased was 24 years of age and his income was Rs. 2,000/- per month. In respect of daily allowance at the rate of Rs. 40/- per day the Tribunal after relying the judgment of the Apex Court in the case of Gurmeet Kaur and Ors. v. Harnaryan 1999 SCC (Cri.) 1146 held that the daily allowance is not the income of the deceased, therefore, the same cannot be said to be his earning and after excluding the said amount held that the annual earning of the deceased was Rs. 24,000/-. After deducting 1/3rd towards personal expenses of the deceased, determined, dependency on the two third of the income at the rate of Rs. 16,000/- per annum (Rs. 24,000/- - Rs. 8,000/- = Rs. 16,000/-). At the time of death the deceased was 24 years of age, and therefore, after applying the multiplier of 17, compensation is determined at Rs. 2,72,000/- plus Rs. 2,000/- was awarded towards funeral expenses. Thus, the total compensation is determined at Rs. 2,74,000/-.
11. The Tribunal after appreciating the evidence on record and after hearing parties passed the impugned award and held that due to rash and negligent driving of Tanker bearing registration No. CPG 4595, the accident occurred and on the date of accident, i.e. on 20-7-1998 the offending vehicle was not insured by the respondent No. 3 - Insurance Company therefore, the Insurance Company is liable to pay the amount of compensation and directed that the owner and driver of the offending vehicle are jointly and severally liable to pay the amount of compensation.
12. In Misc. Appeal No. 176/2001, the appellants challenged the quantum of compensation as well as the finding by which the Tribunal exonerating the Insurance Company.
13. Learned Counsel for the appellants Smt. Meena Singhal, Advocate has submitted that as per Exh. P-1 the salary of Hannu Kushwaha was Rs. 4905/- per month, whereas Tribunal committed error in holding that at the time of death salary of the deceased was Rs. 4,087/- per month. H.P. Verma (A.W. 4) who issued the salary certificate (Exh. P-2) very categorically stated that the deceased was working as Gangman and his salary was Rs. 4,087/- per month. He in Para 5 of his statement stated that the said certificate was issued on the basis of the original salary record of the deceased. He also stated the break up salary slip (Exh. P-1) which are as follows:
Basic Pay: Rs. 2850/- Dearness Allowance: Rs. 456/- House Rent Allowance: Rs. 428/- City Allowance: Rs. 25/- Travelling Allowance: Rs. 731/- Vehicle Allowance: Rs. 75/- National Holiday Allowance: Rs. 85/- Enhanced Dearness Allowance: Rs. 255/- Total: Rs. 4905/-,
He in Para 6 of his statement stated that if the employee goes out of the working place then only he gets Travelling Allowance @ Rs. 55/- per day, monthly it comes to Rs. 731/- and after excluding the said amount the monthly salary comes to Rs. 4,174/- (Rs. 4,905/- - Rs. 731/- = Rs. 4,174/-). The deceased was an employee of Railway Department and no service record was filed by the appellants to prove the exact age of the deceased. As per postmortem report (Exh. P-7) it can be safely held that at the time of death the deceased was 40 to 45 years of age and as per II Schedule of the Act on the age between 40 to 45 years, the multiplier of 15 will be applicable.
14. From the above evidence on record, it can be safely held that at the time of death the salary of the deceased was Rs. 4,174/- per month i.e. Rs. 50,088/- per annum (Rs. 4,174 x 12 = Rs. 50,088/-). The appellant No. 1 - Smt. Kapori Devi is widow of the deceased, appellant No. 2 is major son of the deceased, appellant Nos. 3 to 7 are minor sons and daughters of the deceased. Looking to the family members of the deceased, we deducted 1/4th of the amount to words personal expenses, which the deceased was spending on himself and the rest of 3/4th amount the deceased was spending on his family. Thus, the loss of dependency is accordingly worked out to Rs. 37,566/- for the claimants. Accordingly, the total loss of dependency is calculated as Rs. 37,566/-. On applying the multiplier of 15, the annual dependency of the appellants comes to Rs. 5,63,490/- (Rs. 37,566/- x 15 = Rs. 5,63,490/-). The appellants will also be entitled further sum of Rs. 5,000/- towards loss of consortium, Rs. 2,000/-towards funeral expenses and Rs. 5,000/- towards love and affection to the respondent Nos. 2 to 7 and Rs. 2,500/- towards loss of estate. Thus, the total amount of compensation comes to Rs. 5,77,990/- (Rupees Five Lac Seventy Seven Thousand Nine Hundred Ninety).
15. In Misc. Appeal No. 179/2001, the appellants are partly aggrieved by the award by which the Tribunal has exonerated the Insurance Company to indemnify the insured. However, finding regarding quantum of compensation is not under challenge.
16. Learned Counsel for the appellants Smt. Meena Singhal, Advocate contended that premium was paid and insurance company issued cover note on 17-7-1999 which is at page 94 of the paper book. She further stated that before the Tribunal the respondent/Owner of the Tanker filed an affidavit and stated that the premium was paid and vehicle was duly insured with the respondent No. 3 - Insurance Company.
17. On the other hand, Shri B.N. Malhotra, learned Counsel for insurance company very categorically stated that no premium was paid nor any insurance policy was issued in respect of so called cover note. He also submitted that on 21-7-1999 after accident the owner of the Tanker tried to get the vehicle insured restropectively covering the date of accident. The said proposed cover notes were cancelled by insurance company, vehicle was never insured, and therefore, the Tribunal has rightly exonerated the insurance company for the payment of compensation. He also submitted that the question regarding liability of the insurance company was cropped up earlier when claimants filed an application for grant of interim compensation, learned Tribunal by order dated 10-8-1999 decided the question of liability of the insurance company and held that the vehicle was not insured, and therefore, insurance company is not liable to pay the amount of interim compensation. He also drew our attention to the affidavit of Development Officer filed before the Tribunal and submitted that the vehicle was never insured nor any cover note was issued, and therefore, no liability can be fasten on the insurance company.
18. Learned Counsel for the appellants drew our attention to the decision of this Court in the case of Praveen Vaidya v. Kailash and Ors. 2006 (3) MPHT 334 and submitted that in identical circumstances the Division Bench oi this Court has held that Insurance Company was jointly and severally liable with owner and driver to pay the compensation to third party. In the case of Praveen Vaidya (supra) the agent issued cover note on the assurance of the owner of the vehicle that sum of the premium would be paid during the course of the day, but when the same was not paid, the cover note was taken back by the agent from the owner and the same was cancelled on the same day. The Insurance Company also examined its Branch Manager, Development Officer and Agent in support of its case in the Tribunal. It is held that if the cover note was really cancelled, some endorsement should have been made on it by the concerning officer with proper explanation. There was no such endorsement nor signature of any officer regarding cancellation on the cover note and therefore, held that Insurance Company was jointly and severally liable with owner and driver to pay compensation to third party. Here in the present case, no premium was paid nor any cover note was issued. In the cover note which is at pages 94 and 95, endorsement was made regarding cancellation of the same, but the same was rubbed by the claimants and there is no evidence on record, only affidavit on behalf of the owner, who was proceeded exparte before the Tribunal and before this Court gave an affidavit that vehicle was insured, but no oral evidence was recorded. Similarly, no statement of the Branch Manager, Development Officer or Agent was recorded before the Tribunal. Only one affidavit of Development Officer was filed and on the basis of the said piece of evidence the learned Tribunal has held that offending vehicle was not insured and therefore, insurance company is not liable to indemnify the insured.
19. Learned Counsel for appellants also placed reliance on the Division Bench decision of this Court in the case of Oriental Insurance Co. Ltd. v. Indrajeet Kaur and Ors. AIR 1998 SC 588, in which it has been held that the Insurance Company was liable to pay the amount of compensation. The Apex Court in the case at New India Assurance Co. Ltd. v. Rula and Ors. held following the decision in Indrajeet Kaur's case (supra) that the insurer is not absolved of liability to third party if the cheque issued towards payment of premium is dishonoured and policy is cancelled after accrual of liability, that payment of premium is not the concerned of third party and that subsequent cancellation of policy due to dishonour of cheque would not affect the rights of third party. That was a case where the issuance of policy was receiving cheque towards payment of premium and occurrence of accident was on the same viz. on 8-11-1991 and the dishnour of the cheque was thereafter on 16-11-1991.
20. A Division Bench of this Court in Ishwar Singh v. Ashok Kumar and Ors. 2001 ACT 1714 has held considering Sections 147(5) and 149(1) of the Act and Section 64VB of the Insurance Act, 1938, that dishonouring of cheque after issuance of certificate of insurance which includes the cover note does not affect the rights of the third party and that the insurance company can recover the amount from the insured. That was a case where the accident occurred on the very next day of issuance of cover note by the Insurance Company, receiving the cheque towards payment of premium and the cheque was dishonoured thereafter. In a Full Bench decision of the Kerala High Court in Oriental Insurance Co. Ltd. v. Sivakutty 2006 ACJ 106, it has been held that the liability of the Insurance Company in damages for third party risks continues for the entire period covered by the policy in spite of the cheque issued towards payment of premium was dishonoured and consequently policy was cancelled by the Insurance Company. The remecdy of the Insurance Company lies against the "insured" to have the amount paid by them byway of compensation for third party risks to be got reimbursed.
21. So far as the liability of the insurance company is concerned, only affidavits were filed by the parties regarding issuance of cover note or is cancellation on account of non-payment of the premium, but the deponents of (he affidavit were not produced for cross-examination. Law is well settled that unless the oral testimony of a witness is tested by cross-examination, it cannot be accepted as evidence. It was duty of the insurer to prove the non-issuance/cancellation of such cover note by some reliable and admissible evidence and proposition of law. We have not found any evidence on record or documents when and by whom it was issued and also under which procedure it was cancelled. If these things are not proved on record then merely on the basis of affidavit of the owner and insurance company, it cannot be assumed that cover note was issued or later-on the same was cancelled in view of the aforesaid, the finding of the Tribunal regarding exoneration of the insurer is liable to be set aside and accordingly the same is set aside.
22. Since no oral evidence on behalf of parties was adduced, before the Tribunal in respect of issuance/non-issuance of cover note and its cancellation and therefore, we are of the considered view that the matter may be remanded to the Tribunal for deciding the question regarding the liability of Insurance Company afresh after recording the evidence of the parties.
23. For the reasons stated above, in M.A. No. 176/2001 the amount of compensation is enhanced from Rs. 4,97,440/- to Rs. 5,77,990/-. The enhanced amount shall also carry interest at the rate of 6% per annum from the date of filing of appeal till its realisation. In M.A. No. 179/2001 the compensation amounting to Rs. 2,74,000/- determined by the Tribunal is just and proper in the light of evidence on record. In both the appeals, the Tribunal is directed to decide the question of liability of the insurance company afresh after giving opportunity for leading oral and documentary evidence to the parties, expeditiously. The parties are directed to appear before the Sixth Additional Motor Accident Claims Tribunal, Gwalior on 11-12-2006.
24. In the result, M.A. No. 176/01 and M.A. No. 179/01 succeeds in part and is allowed and disposed of to the extent indicated above, but without any order as to costs.