Madhya Pradesh High Court
Amrudas & Anr vs Mangal Singh & Ors on 19 September, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 19th OF SEPTEMBER, 2022
MISC. APPEAL No. 1334 of 2003
BETWEEN:-
1. AMRUDAS S/O RAMLAL PANKA, AGED ABOUT 50 YEARS
2. GIRIJA BAI W/O AMRUDAS PANKA, AGED ABOUT 45
YEARS
BOTH RESIDENT OF VILLAGE JHALPANI, POST POUNDI
LINGA, TEH & DISTRICT MANDLA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI PARITOSH TRIVEDI, ADVOCATE)
AND
1. MANGAL SINGH S/O.DHANIRAM DHULIYA, AGED
ABOUT 40 YEARS, TRUCK DRIVER R/O.VILLAGE
PADARIYA (NARAYANGANJ), POLICE STATION
TIKARIYA, TAHSIL NIWAS, DISTRICT MANDLA
2. DILIP KUMAR S/O GHANSHYAM PRASAD S/O. JAIRAM
BALANI, TRUCK OPERATOR AND WOOD
BUSINESSMAN, JANTA SAW MILL, MOHALLA AND P.S.
GORAKHPUR, DISTRICT JABALPUR (MADHYA
PRADESH)
3. BRANCH MANAGER THE ORIENTAL INSURANCE
COM PAN Y NEAR SHASHTRI BRIDGE, GORAKHPUR,
DISTRICT JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
This appeal coming on for hearing this day, the court passed the following:
ORDER
This Miscellenous Appeal is filed by the appellants/claimants being aggrieved of Signature Not Verified SAN award dated 10.5.2003 passed by learned Additional Motor Accident Claims Tribunal, Digitally signed by AMIT JAIN Mandla in Motor Accident Claim Case No.02/02 mainly on two grounds:- (1) The Date: 2022.09.20 19:10:44 IST 2 Insurance Company has been wrongly exonerated from its liability to make payment of compensation and (2) The income of deceased/bachelor Ramkumar, Aged about 18 years, on the date of the accident, at Rs.1,250/- per month for an accident which took place on 6.5.1993 is on the lower side, which needs to be enhanced including compensation under the other heads.
Learned counsel for the appellants/claimants places reliance on the judgment of Hon'ble the Supreme Court in New India Assurance Company Limited versus Rula & Others 2000 ACJ 630 so also Division Bench Judgment of this High Court in National Insurance Company Limited versus Pawan Kumar 2000 (1) M.P.Weekly Notes Short Note No.179 to contend that the Insurance Company could not have been exonerated.
After hearing learned counsel for the appellants/claimants and perusing the record of the Claims Tribunal, it is apparent that the Cover Note of the Insurance Policy was issued on the basis of the proposal of the owner of the Truck to ensure it from 23.1.1993 to 22.1.1994 but since the cheque given for payment of the premium was dishonoured, therefore, the notices were issued by the Registered A/D post on 22.2.1993 to the non- applicant Nos.2, 3 as well as the Regional Transport Authority informing them that the non-applicant No.2 had not obtained insurance of the Truck. It has also come on record that the accident took place on 6.5.1993 in the evening when the Insurance Policy was obtained on 7.5.1993 after the accident, which was valid from 7.5.1993 to 6.5.1994 whereas the accident had taken place on 6.5.1993 at 11:30 PM.
In New India Assurance Company Limited versus Rula & Others (supra), it is held by the Apex Court that the Insurance Company cannot be exempted from third party liability if the cheque towards premium is dishonoured and the policy is cancelled Signature Not Verified SAN after accrual of liability because the payment of premium is not the concern of the third Digitally signed by AMIT JAIN Date: 2022.09.20 19:10:44 IST party and the subsequent cancellation of policy due to dishonour of cheque would not 3 affect the rights of a third party, which had accrued on the date of the accident.
The ratio of law laid down by Division Bench of this High Court in National Insurance Company Limited versus Pawan Kumar (supra) is that if cancellation of policy was alleged to have been sent through registered post and no receipt or acknowledgement due is proved then the insurer is liable to make payment of compensation.
As far as the judgment of Hon'ble the Supreme Court in New India Assurance Company Limited versus Rula & Others (supra) is concerned, the facts of that case are different. In the present case, admittedly the notices were issued in regard to dishonour of cheque and cancellation of policy before accrual of liability, therefore, the ratio of law laid down in New India Assurance Company Limited versus Rula & Others (supra) will be of no assistance to the appellants.
Exhibit D/2(C) and Exhibit D/3(C) are the notices, which reveal that intimation was given to the owner of the Truck about cancellation of the policy on 22.2.1993 in relation of the motor vehicle bearing registration No.MBK-8193. Perusal of the record of the Claims Tribunal reveals that the non-applicant Nos.1 & 2 i.e. Mangal Singh and Ghanshyam Prasad did not file their written statements. They did not appear in the witness box to say that they had not received notices from the Insurance Company. Infact, the evidence of Non-Applicant Witness Mohammad Abrar Ansari, Assistant Divisional Manager to the effect that immediately after the accident on 6.5.1993, the policy was obtained on 7.5.1993 is a testimony of the fact that the owner of the offending motor vehicle had intimation about cancellation of policy allegedly issued in January, 1993 and, therefore, they had obtained second policy immediately after the accident. It Signature Not Verified SAN will be necessary to point out that the amendment was carried out in the cause title impleading Ghanshyam Prasad S/o. Jairam in place of Dilip Kumar in terms of order Digitally signed by AMIT JAIN Date: 2022.09.20 19:10:44 IST 4 dated 3.9.1994 and that amendment was allowed and, therefore, the Claims Tribunal erred in treating Dilip Kumar S/o. Ghanshyam Prasad to be the non-applicant No.2 whereas infact it was Ghanshyam Prasad who stood substituted in the memo of Claim Petition.
Thus, in absence of any denial on the part of owner of the offending vehicle that he had not received any notice about cancellation of policy on account of dishonour of cheque, the ratio of law laid down by Division Bench of this High Court in National Insurance Company Limited versus Pawan Kumar (supra) will not have any application to the facts of the present case. There is no cross-examination on this aspect by the owner and driver of the offending vehilce and, therefore, the facts of that case being different, the exoneration of the Insurance Company cannot be set aside merely for the asking of the claimants and even incorrect deduction of 1/3rd has been made by the Claims Tribunal whereas for a deceased/bachelor of 18 years of age, it should have been 50% but since no appeal is filed on behalf of the owner, driver & Insurance Company of the offending vehicle, therefore, no indulgence is required in the matter.
As far as the question of enhancement of compensation is concerned, there is no proof of the income of the deceased on the date of the accident. Infact, the minimum wages for an unskilled labourer on the date of the accident were to the tune of Rs.883/- per month. The Claims Tribunal has construed the income of the deceased at Rs.1,250/- per month and after 1/3rd deduction, it will come out to Rs.834/- per month or Rs.10,008/- per annum. The Claims Tribunal has applied the multiplier of 16 whereas according to the age of the deceased to be 18 years, the multiplier of 18 should have been applied by the Claims Tribunal. Thus, after applying the multiplier of 18, the pecuniary compensation will increase from Rs.1,60,000/- to Rs.1,80,144/-
Signature Not Verified SAN(Rs.10,008X18) over and above this, the appellants/claimants are entitled to a sum of Digitally signed by AMIT JAIN Date: 2022.09.20 19:10:44 IST Rs.30,000/- under the head of non-pecuniary compensation in place of Rs.4,500/-
5awarded by the Claims Tribunal. Hence, the appellants/claimants will be entitled to an enhanced sum of Rs.45,644/- (Rupees Forty Five Thousand Six Hundred & Forty Four Only) in addition to the amount awarded by the Claims Tribunal alongwith interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. The other terms & conditions of the award shall remain intact.
Accordingly, this Miscellaneous Appeal stands allowed in part. Let record of the Claims Tribunal be sent back.
(VIVEK AGARWAL) JUDGE amit Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2022.09.20 19:10:44 IST