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Rajasthan High Court · body

2009 DIGILAW 597 (RAJ)

Jasoda v. Mahendra Singh

2009-02-25

N.P.GUPTA

body2009
Judgment Hon'ble GUPTA, J.—These two appeals have been filed against the common award of the learned Motor Accident Claims Tribunal, Jodhpur dt. 17.3.1997. 2. 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. 3. 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, 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. 4. 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 taken on merits. 5. 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. 6. 5. 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. 6. 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. 7. 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. 8. 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 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 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. 9. Thus, the appeal no. 738 has no force, and is dismissed. 10. 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/-. 11. 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. 12. Accordingly, the Appeal No. 686 is partly allowed, and maintaining all other findings, the multiplier is altered from 4 to 6.