Madhya Pradesh High Court
Pahari Lal And Ors. vs Mahesh Ram And Ors. on 11 January, 2005
Equivalent citations: II(2006)ACC80, 2006ACJ1853
Author: N.K. Mody
Bench: N.K. Mody
JUDGMENT N.K. Mody, J.
1. Being aggrieved by the award dated 23.12.1994, passed in Claim Case No. 1 of 1993 by the Second Addl. M.A.C.T., Mandla, whereby an award of Rs. 72,000 along with interest at the rate of 12 per cent per annum has been awarded, the present appeal has been filed by the claimants for enhancement.
2. Short facts of the case are that the appellants-claimants filed a claim case alleging that deceased Dumare Bai was the wife of appellant No. 1 and mother of rest of the appellants. It was alleged that the deceased Dumare Bai was employed on the said truck bearing registration No. MPJ 4596. While she was sitting in the truck, at that time she slept and fell down. The accident took place on 8.12.1992. The offending vehicle was driven by the respondent No. 1, owned by the respondent No. 2 and insured with respondent No. 3 at the relevant time. It was also alleged that because of rash and negligent driving of respondent No. 1, she died. A criminal case was registered at Crime No. 290 of 1992, hence the claim petition was filed for a sum of Rs. 3,72,400. This claim petition was opposed by the respondents and it was prayed that the offending vehicle was not insured at the time of the accident. It was further alleged that the accident took place on 8.12.1992 at 3 p.m. while the offending vehicle was insured at 5 p.m. on that very day.
3. On the basis of the pleadings of the parties, the learned Tribunal framed the issues and recorded the evidence. By the impugned award, the learned Tribunal held that since the offending vehicle was not insured at the relevant time, therefore insurance company, respondent No. 3, is not liable. However, against the driver and owner of the offending vehicle, respondent Nos. 1 and 2 herein, the award was passed for a sum of Rs. 72,000.
4. learned Counsel for the appellants-claimants submit that since the offending vehicle was insured at the relevant time, therefore, the insurance company will remain liable with effect from the zero hour and learned Tribunal has committed error in exonerating the insurance company, respondent No. 3. It was also submitted that amount awarded is lesser. learned Counsel for the appellants placed reliance on a decision of Supreme Court reported in New India Assurance Co. Ltd. v. Ram Dayal , wherein the Hon'ble Supreme Court has held that when a policy is taken on a particular date, its effectiveness is from the commencement of that date. The insurance policy obtained on the date of accident became operative from the commencement of the date of insurance, i.e., from the previous midnight and since the accident took place on the date of policy the insurer became liable.
5. So far as the liability of insurance company, respondent No. 3, is concerned, learned Counsel for the respondent No. 3 submits that since the accident took place at 3 p.m. and the offending vehicle was insured at 5 p.m. on hat very day and there is a specific averment in Exh. NA1 that the effective date and time of commencement of insurance is from 5 o'clock on 8.12.1992, therefore, by no stretch of imagination a conclusion can be drawn that the offending vehicle was insured at the time of accident. For this, the learned Counsel for insurance company, respondent No. 3, submits that the decision reported in the case of Ram Dayal , is distinguishable and has no application to the facts of this case. Mrs. Amrit Ruprah, learned Counsel placed reliance on a decision of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. v. Sunita Rathi , wherein the Hon'ble Apex Court has held that where the time is mentioned in the cover note then the policy will be effective from the date and time of commencement of the insurance for the purpose of the Act. In the present case accident took place at 3 p.m. and the vehicle was insured at 5 p.m. In view of this, the insurer cannot be held liable on the basis of the above policy. Therefore, the liability has to be of the owner of the vehicle.
6. So far as the amount awarded is concerned, learned Counsel for the appellants submit that the learned Tribunal has held that the age of the deceased was 35 years and was earning Rs. 30 per day. Learned Tribunal assessed the income at Rs\ 800 per month and after giving a deduction of Rs. 200 per month for personal expenses, the dependency was calculated at Rs. 600 per month and Rs. 7,200 per year and the multiplier of 10 was applied. The learned Counsel for appellants submit that looking to the age of the deceased, the learned Tribunal has wrongly applied the multiplier of 10. It was also submitted that even in case of the person who are not employed, the income has to be assessed at Rs. 15,000 per year, therefore, in the present case, the income assessed by the learned Tribunal at Rs. 800 per month is not correct.
7. In the present case, the appellants themselves have alleged the income of the deceased at Rs. 1,000 per month, therefore, it cannot be said that the income of the deceased can be assessed at Rs. 15,000 per year. It is true that the age assessed by the doctors in the post-mortem report is 35 years, therefore, the multiplier of 10 has been wrongly applied. As per the Second Schedule to Motor Vehicles Act, the multiplier of 16 ought to have been applied. After assessing the income of the deceased at Rs. 800 per month and also after giving deduction of Rs. 200 per month towards personal expenses, the yearly dependency of the claimants has been rightly assessed at Rs. 7,200 by the learned Tribunal. After applying the multiplier of 16, the amount of compensation comes to Rs. 1,15,200.
8. learned Counsel for the appellants-claimants submit that no amount has been awarded towards funeral expenses, loss to estate and loss of consortium.
9. It is true that no amount has been awarded, therefore, an amount of Rs. 2,000 towards funeral expenses, Rs. 5000 for loss to estate and Rs. 2,500 towards loss of consortium is awarded. Thus, the total amount for which appellants-claimants are entitled come to Rs. 1,24,700.
10. For the aforesaid reasons, the appeal is allowed in part and the amount of Rs. 72,000 which has been awarded by the learned Claims Tribunal is enhanced to Rs. 1,24,700, which will be recovered by respondent Nos. 1 and 2. No Order as to costs.