Rajasthan High Court - Jaipur
Abdul Mazid S/O Shri Noor Mohamad vs Salma Bano W/O Late Mohamad Nasir on 9 May, 2019
Author: Sabina
Bench: Sabina
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 3263/2018
Icici Lombard General Insurance Company Ltd, Having Its
Regional Office Above P.l. Motors, Govt. Hostel Crossing, M.I.
Road, Jaipur Through Its Constituent Attorney
----Appellant
Versus
1. Salma Bano W/o Late Mohammad Nasir, Aged About 37
Years, B/c Musalman, R/o 369, Madrasi Mohalla,
Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota,
Presently R/o New Light Tailar, Modi Market, Baroda,
Distt. Shyopur (Madhyapradesh)
2. Saniya D/o Late Mohammad Nasir, Aged About 15 Years,
Anatpura, Ward No. 6, Teh. Ladpura, Distt. Kota,
Presently R/o New Light Tailar, Modi Market, Baroda,
Distt. Shyopur (Madhyapradesh)
3. Alfej S/o Late Mohammad Nasir, Aged About 12 Years,
Anatpura, Ward No. 6, Teh. Ladpura, Distt. Kota,
Presently R/o New Light Tailar, Modi Market, Baroda,
Distt. Shyopur (Madhyapradesh)
4. Kefiya D/o Late Mohammad Nasir, Aged About 11 Years,
Anatpura, Ward No. 6, Teh. Ladpura, Distt. Kota,
Presently R/o New Light Tailar, Modi Market, Baroda,
Distt. Shyopur (Madhyapradesh)
Claimants respondents No.2 to 4 are being minor through
their natural guardian mother Salmo Bano W/o late Mohd. Nasir.
5. Bajrang Lal Yogi S/o Shri Birdhi Lal Yogi, R/o Hariom Nagar Kacchi Basti, Rangbadi Road, Kota (Driver Of Tractor No. Rj-06-R-2218)
6. Smt. Reema Khanna W/o Shri Vinay Khanna, Aged About 47 Years, B/c Punjabi, R/o House No. 2-E-6, Mahaveer Nagar Extension Yojana, Kota (Owner Of Tractor No. Rj- 06-R-2218)
7. Abdul Majeed S/o Noor Mohammad, Aged About 69 Years, R/o 369, Madrasi Mohall, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota
8. Ajijan W/o Abdul Majeed, Aged About 65 Years, R/o 369, (Downloaded on 29/06/2019 at 12:03:24 AM) (2 of 13) [CMA-3263/2018] Madrasi Mohall, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota
----Respondents Connected With S.B. Civil Miscellaneous Appeal No. 3474/2018
1. Abdul Mazid S/o Shri Noor Mohamad, Aged About 68 Years, R/o 369, Madrasi Mohalla, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota
2. Azizan Bai W/o Abdul Mazid, Aged About 60 Years, R/o 369, Madrasi Mohalla, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota
----Appellants Versus
1. Salma Bano W/o Late Mohamad Nasir, Aged About 37 Years, R/o 369, Madrasi Mohalla, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota Presently Residing At New Lite Tailor, Modi Market, Baroda, Distt. Syopur (M.p.)
2. Saniya D/o Late Mohamad Nasir, Aged About 15 Years, Minor Through Mother Salma Bano W/o Late Mohamad Nasir, B/c Musalman, R/o 369, Madrasi Mohalla, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota Presently Residing At New Lite Tailor, Modi Market, Baroda, Distt. Syopur (M.p.)
3. Alphej W/o Late Mohamad Nasir, Aged About 12 Years, Minor Through Mother Salma Bano W/o Late Mohamad Nasir, B/c Musalman, R/o 369, Madrasi Mohalla, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota Presently Residing At New Lite Tailor, Modi Market, Baroda, Distt. Syopur (M.p.)
4. Kafia D/o Late Mohamad Nasir, Aged About 11 Years, Minor Through Mother Salma Bano W/o Late Mohamad Nasir, B/c Musalman, R/o 369, Madrasi Mohalla, Anantpura, Ward No. 6, Teh. Ladpura, Distt. Kota Presently Residing At New Lite Tailor, Modi Market, Baroda, Distt. Syopur (M.p.)
5. Bajrang Lal Yogi S/o Shri Birdhi Lal Yogi, R/o Hariom Nagar Bacchi Basti, Rangbari Road, Kota (Driver Tractor No. Rj-06-R-2218)
6. Smt. Reema Khanna W/o Shri Vinay Khanna, Aged About 47 Years, B/c Punjabi, R/o House No. 2-E-6, Mahavir (Downloaded on 29/06/2019 at 12:03:24 AM) (3 of 13) [CMA-3263/2018] Nagar Vistar Yojna, Kota (Owner Tractor No. Rj-06-R- 2218)
7. ICICI Lombord Insurance Company Limited (Insurer Tractor No.RJ-06-R-2218)
----Respondents For Appellant(s) : Mr. Virendra Agarwal, Mr. Arvind Kumar Bhardwaj For Respondent(s) : Mr. Amar Kumar, Ms. Mudita Sharma HON'BLE MRS. JUSTICE SABINA Judgment 09/05/2019 Vide this order above mentioned two appeals would be disposed of as they have arisen out of common award passed by Motor Accident Tribunal dated 7.2.2018.
Claimants had filed claim petition under Section 166 of the Motor Vehicle Act, 1988, seeking compensation on account of death of Mohammad Nasir in the motor vehicle accident, which had occurred on 13.5.2009. Vide award dated 24.6.2016, tribunal allowed the claim petition filed by the claimants and granted compensation to the tune of Rs.31,14,878/- to the claimants as well as parents of the deceased. Insurance Company was exonerated from its liability to indemnify the insured. Aggrieved against the said award, appeals were filed by the claimants as well as owner of the vehicle. Vide order dated 22.8.2016, this court remanded the case to the tribunal for deciding Issues No.3 and 4 afresh. Thereafter, tribunal vide impugned award dated 7.2.2018 has held that the Insurance Company was liable to indemnify the insured and upheld the earlier finding on Issue No.4. Hence, (Downloaded on 29/06/2019 at 12:03:24 AM) (4 of 13) [CMA-3263/2018] Insurance Company has filed this appeal praying that it was liable to be exonerated from its liability to indemnify the insured.
Parents of the deceased have filed the appeal praying that their share out of compensation awarded by the tribunal be enhanced.
Learned counsel for the Insurance Company has submitted that the tribunal has erred in ordering Insurance Company to indemnify the insured. In-fact, tractor-in-question had been initially purchased by Mohammad Shareef. The owner of the offending vehicle died on 21.7.2008. The Insurance Policy was got issued by subsequent purchaser on 10.12.2008 in the name of the deceased person i.e., Mohammad Shareef. Hence, Insurance Policy was not a valid contract as it could not have been executed with a dead person. Learned counsel has further submitted that tractor/trolley had been insured vide insurance policy Exhibit-14 for agricultural purposes, whereas, at the time of accident, the vehicle was not being used for agricultural purposes. Learned counsel has further submitted that the quantum of compensation granted by the tribunal was also on a higher side. In support of his arguments, learned counsel has placed reliance on decision of Gujarat High Court in United India Insurance Company Limited vs. Manjulaben Purshottamdas Patel 1994 1 GLR 269, wherein, it was held as under:-
"14. In view of our above discussion, it is not strictly necessary to refer to the third contention of Mr. Baxi. However, since the arguments have been advanced by both the sides, we think it fit to deal with the said contention also. It is an admitted fact that Joitabhai was the owner of tractor as well as trailer. It also appears from the record that original policy was in the name of Joitabhai. It is an admitted fact that till the date of the accident, i.e., March 2, 1980, the policy (Downloaded on 29/06/2019 at 12:03:24 AM) (5 of 13) [CMA-3263/2018] continued to remain in the name of Joitabhai. Joitabhai died in or about August, 1977. According to Laljibhai, he had intimated Jitubhai Vakil alias Jitendra Virsinh Chaudhari, Exh. 113, about the death of his father Joitabhai. He also stated that Jitubhai asked him to submit certain papers so as to enable Jitubhai to do needful in the matter. According to Laljibhai, an affidavit was sworn by him in Dehgam court and Jitubhai told Laljibhai that policy will be transferred in the name of Laljibhai's mother. Laljibhai, however, admits in cross-examination that he was given paper attached to the R.T.O. book and the receipt of payment of premium paid by him. No such R.T.O. book or receipt has been produced by Laljibhai. After the accident, when Laljibhai approached Jitubhai, signature of Laljibhai was taken on two papers, Exh. 69, accident report and Exh. 70, claim form. Jitubhai asked Laljibhai as to how the proceedings were initiated against Laljibhai though the owner of tractor and trailer was Joitabhai. Laljibhai informed Jitubhai about the death of his father and yet Jitubhai asked Laljibhai to sign Exhs. 69 and 70 on behalf of Joitabhai. Relying on the above deposition of Laljibhai as also of Jitubhai, a submission was made on behalf of respondent Nos. 5 to 7 that Jitubhai was aware of the fact of the death of Joitabhai. It was also submitted that there is no reason to disbelieve Laljibhai when he stated that he informed Jitubhai about the death of his father and had also filed affidavit in Dehgam court, though such affidavit is not forthcoming on record. When neither the affidavit said to have been sworn by him in Dehgam court, nor any other material is produced by Laljibhai, it cannot be said that the insurance company was aware of the death of Joitabhai before the date of the accident. The matter, however, does not end there. There is evidence of Atul Pathak, Exh. 98. At the relevant time, he was working as Sr. Assistant. In his deposition, he has stated that no intimation was ever received by the insurance company from Laljibhai about the death of his father Joitabhai. He also stated that the said statement was made by him after perusing the necessary files which he had brought with him. He further stated that he came to know about the death of Joitabhai before two months of his deposition only when the advocate of the insurance company informed the company about that fact. Similarly, Haresh M. (Downloaded on 29/06/2019 at 12:03:24 AM) (6 of 13) [CMA-3263/2018] Chhatrapati, Exh. 107, Sr. Assistant of the insurance company, has also stated that the insurance company had not received any application for transfer or any intimation of the death of Joitabhai. He also stated that if an insured dies during the period covered by the policy and his legal representative wants the policy to be transferred to his name, the company insists on an application being given by such person and effects transfer thereafter. Nothing fruitful came out of the cross- examination of the said witness by the claimants. In view of absence of any documentary evidence and further in view of the depositions of two responsible officers of the insurance company it cannot be said that the insurance company was aware about the death of Joitabhai and in spite of such information, the policy came to be renewed in the name of Joitabhai. It is, no doubt, true that Jitubhai admitted in his deposition, Exh. 113, that even after he came to know about the fact of death of Joitabhai, he took signatures of Laljibhai on Exhs. 69 and 70, accident report and the claim form. It is also true that he has further admitted that it had not struck to him then that it was wrong to get claim form in the name of deceased and to obtain somebody else's signature on it on his behalf. But when there is no cogent evidence to show that the insurance company was intimated about the death of Joitabhai and policy came to be renewed even after the death of Joitabhai, in our opinion, it cannot be successfully argued that the insurance company was liable on the ground that the policy came to be continued and that merely a ministerial act of transfer of policy was not performed. From the evidence of Laljibhai and Jitubhai, it can at the most be said that Laljibhai had informed Jitubhai about the death of Joitabhai and Jitubhai was aware of that fact. The approach of the Tribunal was that there was no suppression of material fact by Laljibhai. In our opinion, however, the question is not of suppression of material fact. The question is of liability of the insurance company and when from the evidence on record, it cannot be established that insurance company was aware of the death of Joitabhai, the insurance company cannot be held liable simply because the policy continued in the name of dead person. Therefore, on that ground also, the insurance company is not liable and the claimants are not entitled to get (Downloaded on 29/06/2019 at 12:03:24 AM) (7 of 13) [CMA-3263/2018] compensation from the insurance company. The act of renewal of policy in the name of Joitabhai cannot come in the way of company in taking legal contention that the contract came to an end and was no longer enforceable at law."
Learned counsel has next placed reliance on the decision of Delhi High Court in S.B. Revision Petition No.3337 of 2016 titled as Nirasha Sinha vs. HDFC Ergo General Insurance Company decided on 18.8.2017, wherein, it was held as under:-
"7. It thus stand proved that insurance policy for two terms - firstly from 26.11.2011 to 25.10.2012 and then from 1.11.2012 to 31.10.2013 were obtained in the name of a dead person. The contract in the name of a dead person being a nullity in the eye of law, the insurer is not bound to make any payment to the complainant for the loss alleged to have been suffered by her due to accident of the inured vehicle."
Learned counsel for the owner of the offending vehicle has submitted that at the time of accident trolley was empty. Hence, it could not be said that the owner had committed any breach of condition of the insurance policy. In support of his arguments, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in Fahim AHMAD & ors. vs. United India Insurance Co. Ltd. & ors. 2014(2) WLC (SC) Civil 484 wherein it was held as under:-
"5. A perusal of the records shows that, at the time of the accident, a trolley was attached with the tractor, which was carrying sand for the purpose of construction of underground tank near the farm land for irrigation purpose(s). However, merely because it was carrying sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. There is nothing on record to show that the tractor was being used for commercial purpose(s) or purpose(s) other than (Downloaded on 29/06/2019 at 12:03:24 AM) (8 of 13) [CMA-3263/2018] agricultural purpose(s), i.e., for hire or reward, as contemplated under Section 149(2)(a)(i)(a) of the said Act."
Learned counsel has further submitted that from the statement of NAW-4, it was evident that the Insurance Policy had been issued by the Insurance Company after going through the registration certificate of the offending vehicle. As per registration certificate, Reema Khanna was recorded as registered owner of the offending vehicle w.e.f. 26.9.2008, whereas, the policy was issued on 10.12.2008. Hence, it was evident that the Insurance Company due to some clerical error has issued the policy in the name of deceased instead of respondent Reema Khanna (purchaser). Learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in United India Insurance Company Ltd. vs. Santro Devi and ors. 2009 ACJ 570 wherein, it was held as under:-
"20. A contract is based on reciprocal promise. Reciprocal promises by the parties are condition precedents for a valid contract. A contract furthermore must be for consideration."
In this case, the statute itself takes care of validity of the contract. It is mandatory. Once a valid contract is entered into, only because of a mistake or otherwise, the name of the original owner has not been mentioned in the certificate of registration and/or the documents of hypothecation of the vehicle with the bank had still been continuing in his name, it cannot be said that the contract itself is void unless it was shown that in obtaining the said contract a fraud had been practised. Not only the particulars of fraud had not been pleaded, but even no witness was examined on behalf of the appellant. It cannot, thus, be said that a case of fraud in the matter of entering into the contract of insurance had been made out by the appellant."
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(9 of 13) [CMA-3263/2018] Learned counsel for the parents of the deceased has submitted that the parents of the deceased have been granted compensation only to the tune of Rs.10,000/- each out of the total compensation amount of Rs.31,14,878/-. Hence, Rs.4,00,000/- by way of compensation out of the awarded amount of compensation by the Tribunal was liable to be paid to the parents of the deceased.
Learned counsel for the claimants has opposed the appeals. The first question that requires consideration in the present case is as to whether the Insurance Company is liable to indemnify the insured.
It has been argued by the learned counsel for the Insurance Company that the Insurance Policy Exhibit-14 was void document as it had been executed in favour of a dead person.
A perusal of Exhibit-16, registration certificate of the offending vehicle reveals that the original owner of the offending vehicle was Prakash Soni. The vehicle was transferred in the name of Mohammad Shareef w.e.f. 27.9.2000. Thereafter, the vehicle was transferred in the name of widow of Mohammad Shareef w.e.f. 21.7.2008. The vehicle was then transferred in the name of Reema Khanna w.e.f. 26.9.2008. Insurance Policy Exhibit-14 was issued w.e.f. 10.12.2008 to 9.12.2009. Thus, at the time of issuance of the Insurance policy, the offending vehicle had already been transferred in the name of purchaser Reema Khanna.
NAW-4 Digvijay Singh examined by the Insurance Company, in his cross examination, has deposed that at the time of issuance (Downloaded on 29/06/2019 at 12:03:24 AM) (10 of 13) [CMA-3263/2018] of Insurance Policy, registration certificate is seen by the Company. Hence, in the facts of the present case, it is evident that, although, the registration certificate was in the name of purchaser Reema Khanna at the time of issuance of the policy, but, due to some clerical error, the policy was issued in the name of Mohammad Shareef by the Insurance Company. The insured cannot be made to suffer on account of fault committed by the Insurance Company. Hence, insurance policy Exhibit-14 cannot be brushed aside. The judgment relied upon by the learned counsel for the Insurance Company in support of his argument that the Insurance Policy was a void document on account of the death of the owner of the offending vehicle fail to advance the case of the Insurance Company as they are based on different facts.
The next argument raised by the learned counsel for the Insurance Company that there was breach of terms and condition of the insurance policy Exhibit-14 as the offending vehicle had been insured with the Insurance Company for agricultural purposes, whereas, at the time of accident, it was being used for commercial purposes.
Although, it is the case of the owner that there was no breach of insurance policy as the vehicle was being used in terms of Insurance Policy, but in order to decide this issue, statement of NAW-2, driver of the offending vehicle is relevant.
NAW-2 Bajrang Lal deposed that no accident as alleged had taken place. In-fact, motorcycle-in-question has struck against the other vehicle. In his cross examination, he deposed that trolley was attached to the tractor. He was going to bring labour in the (Downloaded on 29/06/2019 at 12:03:24 AM) (11 of 13) [CMA-3263/2018] tractor trolley. The labour was being picked up from the crossing. The labour loads trolley with earth and rubble from the site shown by the contractor. The tractor trolley was being used by contractor Vinay Khanna. Vinay Khanna contractor was doing business of construction of roads. He was working as a driver on the tractor trolley for the last 4-5 years.
Thus, from the cross examination of the driver of the offending vehicle, it is evident that at the relevant time, tractor trolley was not being used for agricultural purposes, but was being used by the contractor, who was dealing with in the business of construction of roads.
Learned counsel for the owner of the offending vehicle has tried to draw benefit from the cross examination of the driver of the vehicle, wherein, he has stated that at the time of accident, trolley was empty. The said part of the cross examination of the driver of the offending vehicle fails to advance the case of the owner of the offending vehicle as it has been stated by the driver of the offending vehicle that at the time of accident, he was going to bring labour from the crossing. Obviously, at the time of accident, the trolley was empty.
In the facts and circumstances of the present case, the judgment relied upon by the learned counsel for the owner of the offending vehicle fails to advance the case of the owner as it is based on different facts.
Thus, it can be said that the owner of the offending vehicle had committed breach of the terms and conditions of the Insurance Policy at the time of accident as the vehicle-in-question (Downloaded on 29/06/2019 at 12:03:24 AM) (12 of 13) [CMA-3263/2018] was not being used for agricultural purposes but was being used for commercial purposes by the contractor.
The next question that requires consideration is with regard to the quantum of compensation liable to be received by the claimants.
Learned counsel for the Insurance Company has submitted that the tribunal has erred in granting compensation to the tune of Rs.1,30,000/- under the heads of love and affection and funeral expenses etc., whereas, Rs.70,000/- should have been awarded under head of loss of consortium, funeral expenses and loss of estate. There is force in the argument raised by the learned counsel for the insurance company. Thus, Rs.60,000/- is liable to be deducted from the amount of compensation granted by the tribunal. Thus, claimants would be entitled to receive Rs.30,50,878/- instead of Rs.31,14,878/- as awarded by the tribunal.
The next question that arises for consideration is with regard to the amount of compensation liable to be received by Abdul Mazid and Azizan Bai, parents of the deceased. Abdul Mazid and Azizan Bai parents of the deceased, were impleaded as respondents in the claim petition filed by the claimants, who were the widow and minor children of the deceased. Tribunal has awarded only Rs.10,000/- each to the parents of the deceased. Parents of the deceased have claimed Rs.4,00,000/- out of the amount of compensation calculated by the tribunal. The argument raised by the parents of the deceased is liable to be accepted as they have been granted meager amount of Rs.10,000/- each by (Downloaded on 29/06/2019 at 12:03:24 AM) (13 of 13) [CMA-3263/2018] the tribunal. Hence, it is ordered that out of the compensation amount of Rs.30,50,878/-, parents of the deceased i.e., Abdul Mazid and Azizan Bai would be entitled to receive Rs.2,00,000/- each by way of their share of compensation.
Accordingly, both the appeals are allowed. It is ordered that the impugned award dated 7.2.2018 is modified to the extent that the claimants would be entitled to receive compensation to the tune of Rs.30,50,878/ instead of Rs.31,14,878/- as awarded by the tribunal. Out of the awarded amount, Rs.2,00,000/- each would be disbursed to Abdul Mazid and Azizan Bai (parents of the deceased), whereas, the remaining amount of compensation would be shared of the widow and children of the deceased as per their share assessed by the tribunal. The finding of the tribunal on Issue No.4 is set aside and the said issue is decided in favour of the Insurance Company and against the owner of the offending vehicle. It is held that the Insurance Company is not liable to indemnify the insured. However, it is ordered that the amount of compensation be disbursed to the claimants by the Insurance Company in the first instance and the Insurance Company would be at liberty to recover the amount of compensation from the owner of the offending vehicle in accordance with law. The remaining terms and conditions of the award shall remain unchanged.
(SABINA)J. Brijesh 23-24.
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