New India Assurance Co. Ltd. v. Lachiya Singh Yadav And Ors.
1996-08-12
S.K.DUBEY, U.B.SHUKLA
body1996
DigiLaw.ai
JUDGMENT S.K. Dubey and Usha Shukla, JJ. 1. The insurer has filed this appeal under Section 110-D of the Motor Vehicles Act, 1939, against the award dated 30.11.1991 passed in the claim case No. 22 of 1986 by II Additional Motor Accidents Claims Tribunal, Bastar at Jagdalpur. 2. One Sewaksingh, the husband of respondent No. 1, father of respondent Nos. 2, 3 and 4 died in a motor accident on 20.1.1985 caused by truck No. MBT 8931, driven by respondent No. 5 and owned by respondent No. 6. The Tribunal, after appreciation of evidence adduced estimated the dependency out of the earning of the deceased at Rs. 800/- p.m., yearly Rs. 9,600/-, applying the multiplier of 24 calculated the compensation of Rs. 2,30,400/-, after deducting 10 per cent for lump sum payment and uncertainties of life, determined the compensation of Rs. 2,07,000/- which the respondents were held to be entitled with interest at the rate of 12 per cent per annum from the date of application till payment. 3. Mr. N.S. Ruprah, learned Counsel for the appellant, submitted that a cover note covering risk was issued which was followed by the policy. The policy did not cover the unlimited risk as no additional premium was charged. To prove that an application under Order 41, Rule 27 of Civil Procedure Code was filed, which shows the payment of Rs. 240/- only to cover the statutory limit of third party. Therefore, relying on Full Bench decision of this Court in United India Fire & Genl. Ins. Co. Ltd. v. Natvarlal 1988 ACJ 956 (MP), it was submitted that where the policy has not been filed, opportunity should be given to file the policy for the just determination of the case. 4. Mr. Sanjay Dwivedi, counsel for the respondents-claimants, Mr. Alok Aradhe, counsel for the respondent No. 6, opposed the application and supported the award. 5. After hearing counsel we are of the opinion that policy deserves to be admitted as an additional evidence subject to the payment of costs of Rs. 1,000/- to the respondents-claimants. Learned counsel for the owner did not dispute the policy and submits that he is not in a position to produce any document to prove that the risk covered was unlimited. In the circumstances, we have no option but to hold that the risk covered under Section 95(2)(a) of the Act was statutory and limited.
1,000/- to the respondents-claimants. Learned counsel for the owner did not dispute the policy and submits that he is not in a position to produce any document to prove that the risk covered was unlimited. In the circumstances, we have no option but to hold that the risk covered under Section 95(2)(a) of the Act was statutory and limited. Therefore, we hold that the appellant insurer would be liable to pay the compensation to the extent of Rs. 1,50,000/- only and interest thereon at the rate of 12 per cent per annum from the date of application till payment. 6. As to quantum the Tribunal has estimated the monthly dependency as Rs. 800/-, yearly Rs. 9,600/- which in the circumstances is proper. However, the multiplier applied of 24 is high. The deceased was born on 1.1.1949, therefore, on the date of the accident his age was about 36 years. In the circumstances, the multiplier of 16 into the multiplicand of Rs. 9,600/- would be proper and award amount would come to Rs. 1,53,600/-. The deceased left behind widow aged 30 years, hence an amount of Rs. 20,000/- under the head of consortium is to be added, the total compensation would come to Rs. 1,73,600 which the respondent Nos. 1 to 4 would be entitled with interest at the rate of 12 per cent per annum from the date of application till payment. 7. It is stated at the Bar that the appellant insurer in compliance of the award has already deposited Rs. 1,95,000/- on 10.4.1992 and also Rs. 15,000/- were deposited in satisfaction of the interim award under Section 92-A of the Act, the balance amount of Rs. 23,600/- with interest thereon at the rate of 12 per cent per annum shall be deposited by the owner respondent No. 6 within a period of two months failing which the respondents shall be at liberty to recover the same with interest at the rate of 15 per cent per annum which the Tribunal shall see that the amount is recovered. The amount lying under deposit shall be disbursed to the respondents-claimants in accordance with the guidelines laid down by the Supreme Court in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas 1994 ACJ 1 (SC) and Lilaben Udesing Gohel v. Oriental Insurance Co. Ltd. 1996 ACJ 673 (SC).
The amount lying under deposit shall be disbursed to the respondents-claimants in accordance with the guidelines laid down by the Supreme Court in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas 1994 ACJ 1 (SC) and Lilaben Udesing Gohel v. Oriental Insurance Co. Ltd. 1996 ACJ 673 (SC). The appellant company shall also be entitled to recover from the owner-insured the excess amount of Rs. 15,000/- deposited by the appellant insurer. 8. In the result, the appeal is partly allowed. However, in the circumstances the appellant company shall bear costs of this appeal and shall also pay costs of respondent Nos. 1 to 4. Counsel's fee Rs. 1,500/-, if pre-certified.