Madhya Pradesh High Court
Mamta Bai & Ors 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. 1320 of 2003
BETWEEN:-
1. SMT.MAMTA BAI WIDOW OF NAND KUMAR
RAJBHAR, AGED ABOUT 25 YEARS
2. SHIVA S/O NAND KUMAR RAJBHAR, AGED
ABOUT 6 YEARS
3. SURENDRA S/O NAND KUMAR RAJBHAR, AGED
ABOUT 4 YEARS
4. VIKAS S/O NAND KUMAR RAJBHAR, AGED
ABOUT 2 YEARS
APPELLANT NOS.2 TO 4 ARE MINOR SONS OF
NAND KUMAR RAJBHAR THROUGH THEIR
GUARDIAN AND MOTHER SMT.MAMTA BAI
ALL RESIDENT OF VILLAGE KATRA, POLICE
STATION, TAHSIL AND DISRICT MANDLA (MP)
.....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) POICE
STATION TIKARIYA, TAHSIL NIWAS, DISTRICT
MANDLA (MADHYA PRADESH)
2. DILIP KUMAR S/O GHANSHYAM PRASAD
S/O.JAIRAM BALANI, OCCUAPTION
TRNASPORT AND WOOD BUSINESS THROUGH
JANTA SAW MILL, MOHALLA AND P.S.
GORAKHPUR, DISTRICT JABALPUR (MADHYA
PRADESH)
Signature Not Verified
SAN
3. BRANCH MANAGER THE ORIENTAL
Digitally signed by AMIT JAIN
Date: 2022.09.20 19:10:43 IST INSURANCE COMPANY NEAR SHASHTRI
BRIDGE, GORAKHPUR, DISTRICT JABALPUR
2
(MADHYA PRADESH)
.....RESPONDENTS
(NONE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This Miscellenous Appeal is filed by the appellants/claimants being aggrieved of award dated 10.5.2003 passed by learned Additional Motor Accident Claims Tribunal, Mandla in Motor Accident Claim Case No.05/02 mainly on two grounds:- (1) The Insurance Company has been wrongly exonerated from its liability to make payment of compensation and (2) The income of the deceased at Rs.80/- per day or Rs.2,000/- 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 Signature Not Verified payment of the premium was dishonoured, therefore, the notices were issued by SAN Digitally signed by AMIT JAIN the Registered A/D post on 22.2.1993 to the non-applicant Nos.2, 3 as well as Date: 2022.09.20 19:10:43 IST the Regional Transport Authority informing them that the non-applicant No.2 3 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 after accrual of liability because the payment of premium is not the concern of the third party and the subsequent cancellation of policy due to dishonour of cheque would not 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.
Signature Not VerifiedSAN Exhibit D/2(C) and Exhibit D/3(C) are the notices, which reveal that Digitally signed by AMIT JAIN Date: 2022.09.20 19:10:43 IST intimation was given to the owner of the Truck about cancellation of the policy 4 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 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 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 Signature Not Verified SAN asking of the claimants especially when no appeal is filed on behalf of the Digitally signed by AMIT JAIN Date: 2022.09.20 19:10:43 IST owner, driver & Insurance Company of the offending vehicle.
5As 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.2,000/- per month and after 1/3rd deduction, it will come out to Rs.1,500/- per month, which is even more than what the claimants would have been entitled to if in absence of any evidence on record, the notional minimum wages on the date of the accident would have been considered. Even after addition of 40% towards future prospects, no indulgence can be shown in the matter of award of higher compensation as the Claims Tribunal has already taken much higher income than what was permissible on the date of the accident, therefore, as far as the quantum of pecuniary compensation is concerned that does not call for any increase.
Accordingly, this Miscellaneous Appeal fails and is dismissed. 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 19:10:43 IST