Madhya Pradesh High Court
Kanhaiya Lal And Anr. vs Mustakim Khan And Ors. on 8 October, 1999
Equivalent citations: 2001ACJ50
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT Shambhoo Singh, J.
1. This judgment shall govern the disposal of M.A. Nos. 498 of 1993 and 499 of 1993 filed by claimants under Section 173 of the Motor Vehicles Act, against the common award dated 14.9.93 passed by IVth Additional Member, Motor Accidents Claims Tribunal, Dhar, in Claim Case Nos. 23 of 1993 and 24 of 1993.
2. The appellants' case, in brief, was that on 2.9.86 Jagdish, husband of appellant No. 1 and father of appellant Nos. 2 to 6 and son of appellant Nos. 7 and 8 (M.A. No. 499 of 1993) and Bharatsingh, son of appellants (M.A. No. 498 of 1993), were going on moped No. CPM 5391 on Dhar Road. At about 3-4 p.m. near National Steel Factory, respondent No. 2 Musa came from the opposite direction, driving truck No. MPU 6224, belonging to the non-applicant/respondent No. 1 Mustakim Khan and insured with non-applicant/ respondent No. 4 in rash and negligent manner and dashed against the moped, as a result of which Jagdish and Bharatsingh died on the spot. The L.Rs. of deceased Jagdish filed Claim Case No. 24 of 1993 claiming compensation of Rs. 2,00,000 while L.Rs.' of Bharatsingh sought compensation of Rs. 1,00,000 in Claim Case No. 23 of 1993. The respondents Chhotibai, the previous owner and driver Musa remained absent and were proceeded ex parte. The respondent No. 4 National Insurance Co. Ltd. resisted the claim and, inter alia, averred that on the date of accident, the truck was not insured with it. It was also pleaded that non-applicant No. 2 Musa had no valid driving licence. It was further averred that the accident occurred due to rash and negligent driving of the moped by deceased Jagdish and, therefore, it was not liable to pay compensation. The learned Tribunal after recording evidence held that the accident occurred due to rash and negligent driving of the truck No. MPU 6224 by non-applicant No. 2 Musa, as a result of which it dashed against the moped and caused the death of Jagdish and Bharatsingh. The Tribunal awarded compensation of Rs. 1,50,000 to the L.Rs. of the deceased Jagdish while Rs. 1,00,000 were awarded to the L.Rs. of Bharatsingh. The Tribunal discarded the story of the owner that after the death of Abdul Gaffoor, the previous truck owner, his wife Chhotibai paid premium to Hatim Ali, the Field Officer of the insurance company and he substituted the insurance period 8.8.85-7.8.1986 to 1.10.85-30.9.1986 and made correction in cover note Exh. D-1, and exonerated the respondent insurance company holding that the truck was not insured on the date of accident, the insurance period had expired on 7.8.86. Being dissatisfied with the exoneration of the insurance company and amount of compensation, the L.Rs. of deceased Jagdish and Bharatsingh filed M.A. No. 499 of 1993 and M.A. No. 498 of 1993 respectively.
3. Mr. Dandwate, learned counsel for respondent insurance company filed I.A. No. 3931 of 1998 under Order 41, Rule 27, Civil Procedure Code praying some documents to be taken on record. Mr. Y.I. Mehta, learned counsel for the appellants, opposed the application. The respondent insurance company could not show good cause for producing these documents at this belated stage. This incident took place 13 years back. It will cause injustice to the appellants if the documents are taken on record and remand of the case may be necessary and matter will be delayed. We, therefore, reject this application.
4. Mr. Y.I. Mehta, learned counsel for the appellants, submitted that the learned Tribunal committed error in holding that on the date of accident the offending vehicle was not insured with the respondent insurance company. He submitted that from the evidence of Hatim Ali, CW 7, Development Officer of the respondent insurance company, it is clear that he accepted extra premium and changed insurance period 8.8.85-7.8.1986 to 1.10.1985-30.9.1986. The insurance company was bound by the act of its servant and in view of the corrected cover note the offending vehicle stood insured with respondent No. 4 on the date of accident, therefore, the insurance company was liable to pay the compensation. On the other hand, Mr. Dandwate, learned counsel for respondent insurance company, submitted that admittedly the offending vehicle was got insured for the period 8.8.1985 to 7.8.1986 by Abdul Gaffoor and cover note Exh. D-l was issued for this period. The Development Officer, Hatim Ali, admitted that he had no authority to change the insurance period. He also admitted that he did not collect premium for the extended period, therefore, the Tribunal was right in exonerating the insurance company. He submitted that the correction was made after the accident. He has been facing departmental enquiry for this change.
5. Now the question is whether the offending vehicle was insured with the respondent insurance company and it has been wrongly exonerated. The evidence of Hatim Ali, CW 7, Development Officer of the respondent insurance company is that he had insured the offending vehicle (MPU 6224) for the period 8.8.85 to 7.8.1986 and issued insurance policy cover note Exh. D-l to the owner Abdul Gaffoor. After his death his widow Chhotibai made application for transfer of this vehicle in her name and on his direction she deposited Rs. 607 + Rs. 5, the amount of bonus paid to her husband and transfer fee vide receipt Exh. D-2. When policy was not issued to her by the company, she asked him either to give her policy or extend the insurance period as the police authorities were harassing for non-availability of the policy. On this, he changed the insurance period '8.8.1985-7.8.1986' to '1.10.85-30.9.1986' in Exh. D-l cover note and on 7.10.1985 he sent letter Exh. P-3C to the head office intimating that the vehicle had been transferred in the name of Chhotibai. She had deposited Rs. 607 + Rs. 5, but transfer certificate had not been received and the police authorities were harassing the party, he, therefore, changed the date on the cover note and made correction in his record. He requested the head office for sending the certificate immediately. The statement of Hatim Ali that he sent letter Exh. P-3C to the head office does not appear to be reliable. It was stated that this letter was sent under certificate of posting but that certificate has not been produced. The story of making change of insurance period on 1.10.1985 does not appear to be reliable. The reason shown by Hatim Ali for making change in the period was that Chhotibai, the widow of the truck owner had applied for transfer of the policy in her name in place of her husband Abdul Gaffoor and insurance policy till then had not been received by her and she was pressing for making insurance policy available to her or to extend the insurance period, as the police authorities were harassing for nonavailability of policy. This explanation given by Hatim Ali for substituting insurance period does not appear to be believable. The vehicle had been insured for the period 8.8.85 to 7.8.86 and on 1.10.1985 only a period of one month and 22 days had passed under such circumstances, on 1.10.1985, no need or occasion arose for the owner to insist for extension of insurance period which was to expire after ten months. The police authorities had nothing to do with the extension of insurance period. This supports the contention of the respondent insurance company that the insurance period was changed after the accident. Hatim Ali did not put date below his signature made on corrected portions of Exh. D-1. Hatim Ali admitted that he did not recover premium for the extended period. He also admitted that he had no authority to change the insurance period in the cover note and he was facing departmental enquiry for the same. If it was assumed that Hatim Ali made this change on 1.10.1985 even then it did not help the appellants. In the facts and circumstances of the case, insurance company was not bound by the unauthorised act of its servant Hatim Ali. It is, therefore, clear that the insurance period of the cover note Exh. D-l had expired on 7.8.1986 and the vehicle did not stand insured on 2.9.1986 when the accident occurred. In view of above, the learned Tribunal rightly exonerated the respondent insurance company from the liability of paying compensation.
6. Now we come to the question of adequacy of compensation amount.
M.A. No. 498 of 1993 (Claim Case No. 23 of 1993)
7. The Tribunal assessed the earning of the deceased Bharat singh at Rs. 30 per day, Rs. 900 per month and after deducting 1/3rd of it for the personal expenses of the deceased, determined the dependency at Rs. 600 per month and yearly Rs. 7,200 and selected multiplier of 16 and worked out Rs. 1,40,000 but awarded Rs. 1,00,000 as prayed in claim application. Even otherwise, the appellants are not entitled for enhancement of compensation. The Tribunal wrongly applied multiplier of 16. Multiplier is selected on the basis of the age of the deceased and that of the dependants which was higher. The ages of the appellants were 55 and 50 years at the time of accident, therefore, the multiplier of 13 could be applied and on multiplying it with the multiplicand, the amount would come to (Rs. 7,200 x 13) Rs. 93,600 and on addition of some amount for loss of love and affection, the compensation amount would come to Rs. 1,00,000. This appeal is, therefore, without substance and deserves to be dismissed.
M.A. No. 499 of 1993 (Claim Case No. 24 of 1993)
8. The appellants claimed compensation of Rs. 2,00,000. The Tribunal awarded Rs. 1,50,000. It has come in the evidence of Rukmanibai, the widow of deceased Jagdish, that her husband was earning Rs. 70 per day and Rs. 2,000 per month. Puranmal stated that the income of Jagdish was Rs. 150 per day. According to Narayan, Jagdish was earning Rs. 2,500 per month. It is clear that Puranmal and Narayan are exaggerating the earning of the deceased as is common in claim cases. In view of the evidence of Rukmanibai, it can be assumed that the deceased Jagdish was earning Rs. 60 per day, Rs. 1,800 monthly. On deducting 1/3rd of it for personal expenses of the deceased, the dependency of the appellants comes to Rs. 14,400 per year. In view of the age of the deceased which was estimated at 32 years, multiplier of 15 is selected and on multiplying it with the multiplicand, the amount of compensation comes to Rs. 2,16,000. We further allow Rs. 18,000 for loss of love and affection and consortium and Rs. 2,000 for funeral expenses, on addition of which the amount of compensation comes to Rs. 2,36,000.
9. In the result, M.A. No. 499 of 1993 is partly allowed and it is directed that respondent Nos. 1 and 2 shall pay Rs. 2,36,000 severally and jointly to the appellants with interest at the rate of 12 per cent per annum from the date of filing of claim application till realisation (after adjusting the amount already deposited) within three months from the date of receipt of copy of this judgment. As stated above, M.A. No. 498 of 1993 is dismissed. There shall be no order as to costs.