Samotiya and Others vs Harbansh and Others

D.M. Dharmadhikari, J.—This is an appeal u/s 173 of the Motor Vehicles Act, 1988, against the award dated 13.3.1995, in MACC No. 4 of 1992, passed by III Additional Motor Accidents Claims Tribunal, Betul.

The facts not in dispute are that on 28.2.1992 at about 12.00 noon, deceased Hanuman was sitting on the logs loaded in truck No. CPB 8455 and as a result of the accident to the vehicle fell down and lost his life. Bhajal, PW 1, was the other labourer sitting with him on the logs in the truck who has been examined on the question of negligence of the driver. The claim petition filed by the dependants of the deceased was opposed by the owner and driver of the vehicle as also by the insurance company. The driver of the truck involved in the accident did not enter the witness-box. The insurance company took a plea that the proposal for insurance of the vehicle was made on the same day after the accident. The proposal was made on 28.2.1992 at 1.30 p.m. and thereafter a cover note for the insurance policy was issued on the same day. The insurance company denied its liability on the ground that by suppressing the fact of occurrence of accident the owner of the vehicle, by practising concealment and fraud, obtained a cover note. It is contended on behalf of the insurance company that since at the hour of accident there was no insurance cover the insurance company cannot be made liable.

The learned Member of the Claims Tribunal accepted the case of the insurance company and totally absolved it of its liability. So far as the liability of the owner and driver of the vehicle involved is concerned, the Claims Tribunal held that there is variance in the version of the accident as pleaded in the claim petition and given in the evidence by the witnesses examined by the claimants. The Tribunal held that the claimants came up with a case in the petition that the accident took place because of the alleged rash and negligent driving of respondent No. 2, the driver of the vehicle. The witness Bhajal, PW 1, examined by the claimants in the witness-box stated that the accident took place because the driver on a hilly road had stopped the vehicle and when it was stationary, did not take precaution to put some stopper under its wheel so that it did not slip down. Because of that the vehicle slipped down and turned turtle. Deceased Hanuman fell down and died under the weight of logs and the truck. The Claims Tribunal held that where the claimants set up a specific case principle of res ipsa loquitur is not attracted. The Tribunal concluded that no case of negligence as laid in the claim petition is made out against the owner and driver of the vehicle. The Tribunal, therefore, awarded a sum of Rs. 25,000 which was the minimum sum awardable under no fault liability.

It may also be mentioned that no fault award having not been deposited by the insurance company within the time granted by the Tribunal, the defence was struck off of all the respondents including the insurance company. It may also be noticed that the respondent Nos. 1 and 2 were proceeded ex pane in the Claims Tribunal and no body appeared to defend the case.

Mr. Ashok Chakravarty who appears for the claimants in this case assails the award. He contends that the Tribunal was in error in absolving the owner, driver and insurance company of the liability. He relies on a Division "Bench decision of this Court in Prakash v. Amrutal 1996 MP LJ 494. No one appears in this appeal for the respondent No. 1, the owner and the respondent No. 2, the driver of the vehicle. Mr. Sanjay Agrawal appears for the respondent No. 3, insurance company and relies heavily on a Supreme Court decision in the case of M/s. National Insurance Co. Ltd. Vs. Smt. Jijubhai Nathuji Dabhi and others, . Relying on the aforesaid decision it is contended that as the cover note was issued on the same day but after the accident the insurance company could not be held liable.

We take up first the question as to whether the Tribunal was right in holding that the negligence of the driver was not proved in the case. We find from para 1 of the claim petition that there is an averment made that the accident took place because of rash and negligent driving of respondent No. 2. We have also examined the statement of Bhajal, PW 1, who was sitting along with the deceased in the truck. He says that when the truck was negotiating a hilly region, the driver stopped the truck without taking precaution of putting something under its wheel to stop it from sliding down. Because of that negligence the truck slipped down and the deceased fell down as the truck turned turtle. He was rushed to the nearest hospital at Padhar where he was declared as dead. In a claim case the victim or claimants may not have the complete information as to how the accident took place. Strict law of pleadings, as is applicable in civil cases, cannot be made applicable to claim petitions. It has been pleaded in claim petition that the vehicle was driven rashly and negligently by the driver. The act of driver in stopping the vehicle without taking proper precaution is also covered within the wider meaning of ''rash and negligent driving'' of the vehicle. The Tribunal, therefore, erred in absolving the driver and owner on ground of alleged variance between plea and proof of negligence set up by the claimants. In our opinion, the evidence of eyewitness Bhajal, PW1, is clear enough that the accident took place because of the negligence of the driver. We, therefore, hold that the driver, respondent No. 2, directly and the owner, respondent No. 1, vicariously have to be held liable for payment of compensation.

We now take up the question of liability of the insurance company. In the decision of M/s. National Insurance Co. Ltd. Vs. Smt. Jijubhai Nathuji Dabhi and others, , of the Supreme Court on which reliance has been placed, the earlier decision of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Ram Dayal and Others, , has been considered and distinguished. In the case of Ram Dayal it was held as under:

There is evidence in this case that the vehicle was insured earlier up to 31.8.1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from 28.9.1984, which is the date of the accident. We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date, its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award.

As pointed out in Stroud''s Judicial Dictionary ''Date'' means day, so that where a cover note providing for temporary insurance of a motor car expires 15 days after date of commencement, it runs for the full 15 days after the day on which it was to commence.

In the subsequent decision of the Supreme Court in M/s. National Insurance Co. Ltd. Vs. Smt. Jijubhai Nathuji Dabhi and others, , the case of New India Assurance Co. Ltd. Vs. Ram Dayal and Others, was distinguished and it was held as under:

The court in New India Assurance Co. Ltd. Vs. Ram Dayal and Others, , had held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the midnight of the day by operation of provisions of the General Clauses Act, 1897. But in view of the special contract mentioned in the insurance policy, namely, it would be operative from 4.00 p.m. on 25.10.1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company.

From the above quoted portions of the decisions of the Supreme Court in the cases mentioned above, the distinction to be noticed is that where there is no specific stipulation about the time from which an insurance cover will be operative it would be from the midnight of the date on which the insurance was obtained. In the instant case, the defence of insurance company was struck off and the complete document of policy was not filed by the insurance company. As the defence of the insurance company was struck off the Tribunal should not have considered the defence of the insurance company. The photostat copy of proposal form which is on record shows that the proposal was made after occurrence of the accident but the cover note was issued and the premium was accepted after the vehicle was inspected on 28.2.1992 at 3.30 p.m. As the contents of the document show it cannot be 3.30 a.m. as claimed by insurance company, if it was issued after the accident which occurred at 12.00 noon. On these facts it is clear that there is no specific stipulation with regard to the commencement of the policy from a particular hour. Earlier decision of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Ram Dayal and Others, , would, therefore, help the claimants to hold that the insurance company is liable under the policy. In our opinion, therefore, the Tribunal clearly erred in not awarding any ''fault liability compensation'' against all the respondents.

At the end learned Counsel for the insurance company submitted that in this case as the owner has suppressed the fact of accident and fraudulently obtained the insurance of the vehicle this Court should hold that the insurance company is entitled to get reimbursement of the amount from the owner. As has been held in the Division Bench case of Prakash 1996 MPLJ 494, the insurance company should have pleaded such fraud against the owner in the claim petition itself. But it failed to do so and its defence was also struck off for non-payment of no fault liability compensation. This court, therefore, would not grant the relief to the insurance company as prayed for in this appeal. If the law permits, the insurance company may independently sue the owner for the alleged fraud and concealment in obtaining the insurance policy and claim reimbursement of the amount awarded.

The last question arises as to what should be quantum of compensation. The deceased at the time of his death was aged 30 years. He was earning Rs. 1,200 per month. The Tribunal has worked out the monthly dependency at Rs. 800. Annual dependency would come to Rs. 9,600. At the age of 30 years the counsel agree that normally multiplier to be taken is 12. Calculated thus the compensation amount would work out to Rs. 1,15,200. The deceased has left behind a widow. She would, therefore, be entitled to a sum towards loss of consortium which should not be less than Rs. 5,000. In addition the claimants should get Rs. 2,000 towards funeral expenses. Adding all the above sums the total compensation would be Rs. 1,22,200 which the appellants would get with interest at 12 per cent per annum from the date of application.

Consequently, we allow this appeal and hold all the respondents jointly and severally liable to pay to the appellants a total compensation of Rs. 1,22,200 (inclusive of Rs. 25,000 awarded by the Tribunal towards no fault liability) with interest at 12 per cent per annum from the date of the application.

The amount awarded shall be apportioned equally amongst the four claimants. The portion payable to minor claimants be disbursed by the Tribunal on an application in the time and manner to be decided by the Tribunal in the best interest of the minors. In the circumstances, the parties shall bear their own costs.