JUDGMENT
1. Since common questions are involved in both these appeals, they are being disposed of by this common judgment.
These two appeals are directed against the judgment and award passed b y the Motor Accidents Claims Tribunal (‘Tribunal’ for short, hereinafter), at Nadiad, on 5-5-1978, in a Motor Accident Claim Petition No. 300/ 77. Thus, the appellants have invoked the provisions of Section I 10-D of the Motor Vehicles Act, 1939 (‘Act’ for short, hereinafter).
The controversy in these two appeals is circumscribed to a very narrow compass and only the following two points are raised:
(i) whether the finding of the Tribunal, exonerating the insurer, is illegal and invalid?
(ii) whether the quantum of compensation awarded by the Tribunal is adequate?
In order to appreciate merits of these two contentions, 4 would be necessary to set out the relevant facts at the outset.
Admittedly, the accident occurred, on 1-6-1977, at about 6.30 a.m., when the injured claimant, Kantibhai Nagarbhai Khristi, appellant in F.A. No. 979 of 1978, was going on foot. At that time, the truck driven by original opponent No. 1 came from behind with an excessive speed and knocked down the claimant. The claimant was injured and he was removed to the hospital. He had under-gone treatment. The claimant was working as a labourer at the relevant time. There was also no dispute about the fact that the respondents in Appeal No. 979 of 1978 are the original opponents Nos. 1, 2 and 3, who were the driver, owner and insurer in respect of the offending vehicle, at the relevant time.
2. The original claimant had claimed a sum of Rs. 25,000/ – by way of compensation for the personal injuries sustained by him under Section I 10-A of the Act.
3. Opponents had resisted the claim petition on several grounds. It was denied that the offending truck was driven in a rash and negligent manner by opponent No.1and he was responsible for the accident. The insurer, original opponent No. 3, raised a special defense that it was not liable for the payment of compensation as the insurance policy was obtained on 1-6-1977 i.e., on the day of the accident, after the occurrence of the accident. The contention of the insurance company was upheld by the Tribunal. The Tribunal was pleased to hold that the accident occurred in the morning at about 6.30 a.m., on 1-6-1977, and the renewal of the insurance policy took place on the same day i.e., 1-6-1977. But the Tribunal presumed that the amount of premium must have been paid after the banking hours on that day and, therefore, the insurance company would be absolved from the liability as the policy was not in existence, at the relevant point of time, when the accident occurred, on 1-6-1977, at 6.30 a.m. However, the Tribunal was pleased to award a sum of Rs.6, 100/- by way of consolidated/ total compensation, under different heads, to the claimant for the personal injuries sustained by him. The break-up of the said amount was as follows:
i) Rs. 600/- - under the head of loss of past income.
ii) Rs. 1500/- - under the head of medical and other expenses.
iii) Rs. 4000/- - under the head of pain, shock and sufferings.
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Rs. 6100/-
The Tribunal was also pleased to hold that original opponent No. 1, Kantibhai Punjabhai Thakor was the driver, original opponent No. 2. Nandlal Shankerlal Bhardwaj was the owner of the offending vehicle. Both these opponents were jointly and severally held liable for the payment of compensation to the injured original claimant with interest at the rate of 6 per cent per annum from the date of application till realisation, with proportionate costs. Claim against original opponent No. 3, insurer, came to be rejected with no order as to costs.
4. Being aggrieved by the said judgment and award, the original claimant has filed the First Appeal No. 979 of 1978 and has claimed additional amount of Rs.18,900 / – whereas original opponents Nos. I and 2, driver and owner of the offending vehicle, have challenged the finding of the Tribunal that the insurer was not liable for payment of compensation and exonerating the insurance company from payment of compensation by filing First Appeal No. 1132 of 1978.
Both the above appeals were heard together since they arise out of one judgment and award and hence they are being disposed of by this common judgment.
5. In so far as the first contention with regard to the liability of the insurance company is concerned, the learned counsel for original opponents Nos. 1 and 2. has contended that the finding of the Tribunal is, totally, erroneous. The Tribunal held that the accident occurred, at about 6.30 a.m., on 1-6-1977, and the policy in respect of the offending truck came to be renewed after payment of premium on the same day, it must have been done after banking hours and, therefore, the insurance company cannot be held liable. It appears that this finding of the Tribunal is erroneous. The policy would become operative not from the time when the amount of premium is realised or paid. Needless to say, in the present case, there is no evidence to show as to at what point of time, on that day, premium was paid. Apart from that, the policy obtained in respect of the offending vehicle on the date of the accident would be operative from the mid-night of the previous date of the insurance and the policy is taken on a particular day and its effectiveness would commence from that date, and the ‘date’ means, ‘the day’. Therefore, a policy providing insurance coverage in respect of any vehicle from a particular ‘date’ would mean that the policy was in operation from that ‘day’ and’ day’ would mean, from mid-night to mid-night’. Therefore, the policy, on the admitted facts of the present case, could be said to be in operation and effective from the previous mid-night and, therefore, the insurance company cannot be allowed to repudiate its liability. The view of this Court is very much reinforced by the latest decision of the Apex Court of the land in the case of the New
India Assurance Company Ltd. v. Ramdayal, reported in 1990 ACJ 545. The case law, fully, supports the version raised on behalf of original opponents Nos. 1and 2.
6. In the light of the facts of the present case and the above-mentioned decision, it become crystal clear that the finding of the Tribunal, exonerating the insurance company from the payment of compensation, is erroneous. The Tribunal ought to have held that the insurance company is also jointly and severally liable for payment of compensation. This will dispose of’ the first point raised before this Court.
7. The second point pertains to the quantification of damages. The Tribunal has awarded consolidated sum of Rs.6100/- by way of compensation. The learned counsel for the original claimant has contended that the claimant was working as labourer and he had testified in his evidence, at Ex. 33, that he was earning Rs. 7/- per day as a labourer, at the relevant point of time. There is no challenge on this point in his evidence. Therefore, at least the Tribunal ought to have held that the injured claimant was earning Rs.200 /-per month as a labourer. The injured claimant was unable to earn for a spell of four months. Therefore, the Tribunal could have awarded Rs.200 x 4 = Rs.800/ -. The Tribunal has only awarded Rs.600/- for loss of past earnings. The claimant therefore would be entitled to an additional amount of Rs.200/- under the head of loss of past income.
8. Admittedly, this is a case of personal injury to the claimant arising out of the aforesaid vehicular accident. There is no permanent partial disablement. However, the injured claimant had also sustained a fracture of shaft femur right. He was kept as an indoor patient in hospital and he was unable to pursue his normal avocations of life for about four months, The Tribunal has awarded a sum of Rs. 4000/- under the head of pain, shock and sufferings. Even while taking a, conservative view in the matter, the claimant would be entitled to at least an amount of Rs. 5,000/ – under this head. The Tribunal has also observed that the time for healing and reuniting fracture in shaft femur would be a little longer. Despite this observation, the Tribunal has awarded a sum of Rs.4000/- only under the head of pain, shock and sufferings. Considering the facts and circumstances of the case, it appears just and reasonable to award at least a sum of Rs. 5,000/- under the head of pain, shock and sufferings. Therefore, the claimant would be entitled to an additional amount of Rs. 1,000/- under this head.
9. Thus, in all, the claimant would be entitled to an additional amount of Rupees 1200/- as compensation. Therefore, the original claimant would be, now, entitled to Rs. 7300/ – instead of Rs. 6 100/ – as awarded by the Tribunal.
10. Lastly the question that would arise for consideration of this Court is as to what rate of interest should be awarded to the original claimant. The Tribunal has awarded interest at the rate of 6 per cent per annum from the date of application till realisation. It appears that the Tribunal has erred in not awarding interest at the rate of 12 per cent per annum from the date of the application till realisation. In view of the facts of the present case and the settled proposition of law on this point, this Court is inclined to award interest at the rate of 12 per cent per annum from the date of the application till realisation.
11. It may be mentioned at this stage that the claimant would be entitled to in aggregate the compensation to the tune of Rs. 7300/ with interest at the rate of 12% per annum from the date of application till realisation, minus whatever the amount, if any, the claimant has, already, received towards the compensation, out of Rs. 6100/- with interest at the rate of 6% per annum, from the date of the application till realisation, as ordered by the Tribunal.
12. In view of the aforesaid facts and the settled position of law, both the appeals are required to be allowed to the extent mentioned here in before.
In the result, both the appeals are allowed and the impugned judgment and award would stand modified to that extent. In the circumstances of the case, parties are directed to bear their own costs.
13. Appeals allowed.