IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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1. CIVIL MISC. APPEAL No. 686 of 1997
SMT. JASODA & ORS
V/S
MAHENDRA SINGH & ORS
2. CIVIL MISC. APPEAL No. 738 of 1997
THE NEW INDIA ASSURANCE COMPANY LIMITED
V/S
SMT. JASHODA & ORS
Mr. SK SANKHLA for Mr. RAJESH PANWAR, for the claimant.
Mr. RK MEHTA, for the New India Assurance Co.Ltd.
Date of Order : 25.2.2009
HON'BLE SHRI N P GUPTA,J.
JUDGMENT
These two appeals have been filed against the
common award of the learned Motor Accident Claims Tribunal,
Jodhpur dt. 17.3.1997.
The Appeal No. 686 has been filed by the claimants
for enhancement of compensation, while Appeal No. 738 has
been filed by the insurer, assailing the liability of the
insurer.
The necessary facts of the case are, that on
6.8.1987, in the noon, the deceased Pannalal was travelling
on his moped, on the road leading from Jodhpur to Mandore,
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when he reached near Krishi Mandi, he indicated to be
intending to turn towards Krishi Mandi, and thereafter in
the process of his crossing the road, the delinquent truck
no. 7484 came, being driven rashly and negligently, and hit
the deceased, who died on the spot. The truck was alleged
to have been insured with the appellant in Appeal No. 738,
hereafter referred to as the insurer.
The insurer contested the claim by filing a
written statement, pleading interalia, that the insurer
learnt about accident only after receiving the notices of
this claim petition, otherwise the insured did not inform
the insurer, and thus there is breach of conditions of the
policy. Then, in para-8 it was pleaded that the vehicle is
insured with the insurer, but then on the date of accident,
it was not insured, rather after happening of the accident
the vehicle was got insured with the defendant, the premium
has been deposited on 10.8.1987, while the amount should
have been deposited within 24 hours, then only, the policy
is deemed to be valid. With this it was pleaded, that the
premium was deposited on 10.8.1987, while the accident
occurred on 6.8.1987, which shows that the vehicle was not
in the possession and control of the registered owner, nor
the vehicle was being driven for the benefit of the
insured, and after happening of the accident when it was
learnt that the vehicle is not insured, then cover has been
obtained in back date. Various other pleadings have been
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taken on merits.
The learned trial court framed various issues;
out of which issues no. 1 and 2 related to accident, then
issue no. 3 related to the insured informing the insurer,
then issue no. 4 was about the effect of premium having
been deposited on 10.8.1987, then issue no. 5 was about
quantum of compensation.
So far the appeal of the insurer is concerned,
the submission made is with regard to issue no.4. The
learned Tribunal has found that no evidence has been led on
behalf of insurer to prove this issue. However, inviting my
attention to the insurance policy it was submitted, that
though insurance cover is for the period 5.8.1987 to
4.8.88, and insurance proposal form is signed by the
insured on 5.8.87, but the premium amount was received on
10.8.1987. The learned trial court found, that when the
insurance cover was issued for the period 5.8.87 to 4.8.88,
then if the insurer’s agent deposited the amount at a
belated point of time, it does not adversely affect the
rights of the insured. It was also noticed, that even if
the premium amount was received on 10.8.1987, it is not
shown as to for what reason the policy was issued to be
commencing from 5.8.1987. Thus, the issue was decided
against the insurer.
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I have heard learned counsel for the insurer, and
have gone through the policy produced by the insurer. A
look at that shows, that at the bottom thereof it is
clearly mentioned, that the proposal was signed on
5.8.1987, and policy has been given on 10.8.1987, while the
cover note no. 122258 dt. 5.8.87 was issued, and the
receipt no. Of the premium is given to be 1772 dt. 10.8.87,
and the agency code is given to be 22106. On the top
portion of this paper, the date of commencement of the
insurance cover, and date of expiry, being from 5.8.87 to
4.8.88, is mentioned.
In my view, from a look at it, it cannot be said,
in the absence of any other extraneous evidence, that the
premium was not paid by the insured on 5.8.87. It appears,
that the premium was deposited by the agent in the company
on 10.8.1987, even though the cover note was issued on
5.8.87, after the proposal was signed on 5.8.1987, and the
period of insurance cover was from 5.8.87 to 4.8.88. It is
not shown, that any action whatever has been taken by the
company against the agent, even for the so called delayed
deposit of the premium amount in the company, much less any
action has been taken by the insurer at the time of
issuance of policy; to make necessary amendments in the
period of insurance coverage, or to cancel the policy, or
the like, and in any case no such intimation is even
pleaded to have been given to the insured. In that view of
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the matter, on the face of the policy, as produced by the
insurer, I do not find any error in the finding of the
learned trial court, regarding issue no. 4.
Thus, the appeal no. 738 has no force, and is
dismissed.
Coming to the appeal no. 686, the learned Tribunal
has found the deceased to be earning Rs. 2500/- per month,
and after making deduction of 1/3rd for his personal
expenditure, the dependency has been assessed at Rs. 1670/-
per month. The claimants were the mother, widow, and the
son. We are told, that during the pendency of the appeal,
the widow, and the mother, have both expired. Be that as it
may. The learned Tribunal found the deceased to be 53 years
of age at the time of accident, and has employed the
multiplier of 4 only, and has thus made assessment of
compensation at Rs. 80,160/-, and after adding other
allowable amounts, award has been passed for Rs. 95,160/-.
In my view, looking to the age of the deceased,
and the fact, that the widow and mother have already
expired, in the totality of circumstances, appropriate
multiplier to be applied should be 6.
Accordingly, the appeal no. 686 is partly allowed,
and maintaining all other findings, the multiplier is
altered from 4 to 6.
( N P GUPTA ),J.
/Sushil/