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2010 DIGILAW 716 (DEL)

SAROJ GUPTA v. RAM AKBAL

2010-06-01

S.N.DHINGRA

body2010
JUDGMENT : Shiv Narayan Dhingra, J. The present appeal has been preferred by the claimants against an award dated 28.5.1994 whereby the learned Tribunal awarded an amount of Rs. 5,40,000 as compensation to the claimants and held that respondent Nos. 1 and 3, i.e., M.M. Public School, owner of Matador No. DEP 3723 and its driver Ram Akbal were liable to pay the amount. The claimants have sought enhancement in the compensation amount and the award is assailed also on the ground that insurance company was liable to pay the damages. 2. Cross-objections were preferred by respondent No. 3, i.e., M.M. Public School, submitting that the insurance company alone was liable to pay the entire compensation amount and not the driver and owner of Matador since the vehicle was duly insured by the owner with the insurance company. However, the respondents were proceeded ex parte by the Tribunal as the advocate engaged by the respondents failed to discharge his duty and did not bring it to the knowledge of the Tribunal that the vehicle was duly insured. It was submitted that the Tribunal has exonerated insurance company on the ground that the insurance company had denied the insurance. However, the insurance company had admitted that the vehicle was insured but taken a false stand that the vehicle was not insured at the time of accident. Therefore, Tribunal could not have exonerated the insurance company and should have held the insurance company liable to make the payment. The objector has relied upon the policy obtained by it in favour of the vehicle valid from 20.5.1985 to 19.5.1986 and the date of accident in this case was 20.5.1985. 3. The insurance company contested the appeal and cross-objections. It is not denied by the insurance company that the policy relied upon by the cross-objector was issued by it. The plea taken is that the policy was taken on 20.5.1985 after the accident had happened and the insurance company was, therefore, not liable. 4. While computing the compensation payable to the claimants, the Tribunal had taken the age of the deceased as 30 years and his income as Rs. 2,500 per month. This was the age given in the claim petition itself and the income was proved by the father and widow of the deceased, who appeared in the witness-box as PWs and stated that income of Mahesh Kumar was Rs. 2,500 per month. 2,500 per month. This was the age given in the claim petition itself and the income was proved by the father and widow of the deceased, who appeared in the witness-box as PWs and stated that income of Mahesh Kumar was Rs. 2,500 per month. Claimants in this case were widow, minor daughter and minor son of the deceased and mother and father of the deceased. Father in his testimony clearly stated that he was not dependent on his son. Looking at this, the Tribunal considered that the deceased was contributing Rs. 1,500 per month for the maintenance of the family. Future prospects and dependency were considered by the Tribunal and the Tribunal took the monthly income of the deceased as Rs. 3,000 for the purpose of computing damages. A multiplier of 15 was used and thus a sum of Rs. 5,40,000 was awarded as damages/compensation. 5. Learned counsel for the appellant stated that in terms of Sarla Verma v. Delhi Transport Corporation, 2009 ACJ 1298 (SC), deduction towards personal expenses should have been 1/4th instead of 1/3rd as taken by the Tribunal and a multiplier of 17 should have been used and the court should have also granted non-pecuniary benefits. 6. I consider that the Tribunal awarded just and fair compensation to the claimants. If we apply parameters as laid down by the Hon'ble Supreme Court in Sarla Verma's case, 2009 ACJ 1298 (SC), even then the deduction for personal expenses will have to be 1/3rd and not 1/4th. Father of deceased admitted that he was not dependent on his son, thus only four persons were dependent on the deceased. Thus, 1/3rd deduction for personal expenses was justified. In terms of Sarla Verma's case (supra), future prospects would have 50 per cent of the income at the time of death. Thus for computing compensation instead of Rs. 3,000 per month, the Tribunal should have taken the income of the deceased as Rs. 2,500 per month. Even if a multiplier of 17 had been used in terms of Sarla Verma's case (supra), the total compensation would have been Rs. 5,10,000, while the Tribunal has awarded a compensation of Rs. 5,40,000. I consider that there was no infirmity in the award of compensation to the claimants and compensation awarded was just and fair. 7. 2,500 per month. Even if a multiplier of 17 had been used in terms of Sarla Verma's case (supra), the total compensation would have been Rs. 5,10,000, while the Tribunal has awarded a compensation of Rs. 5,40,000. I consider that there was no infirmity in the award of compensation to the claimants and compensation awarded was just and fair. 7. Date and time of accident, as per record, is 20.5.1985 at 7.45 p.m. Copy of insurance policy placed on record does not show the time of its issue. The insurance policy provided that it was valid from 20.5.1985 till 19.5.1986, without mentioning any time. Had the insurance policy contained a specific time of its start on 20.5.1985, the case would have been different. But when the insurance policy is silent about the time of its start, it has to be taken that insurance policy covers entire date of 20.5.1985 starting from 0000 hours and it ends at 2400 hours on 19.5.1986. Thus, the entire period from 0000 hours on 20.5.1985 till 2400 hours on 19.5.1986 is covered by the insurance policy and the plea raised by the insurance company that the accident had taken place before the insurance policy was issued, is baseless. 8. In New India Assurance Co. Ltd. v. Ram Dayal, 1990 ACJ 545 (SC), this question had cropped up before the Hon'ble Supreme Court and the Hon'ble Supreme Court observed as under: But in view of the special contract mentioned in the insurance policy, namely, it would be operative from 4 p.m. on 15.10.1983 and the accident occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company. This question was again considered by another three-Judge Bench of this court in New India Assurance Co. Ltd. v. Bhagwati Devi, 1999 ACJ 534 (SC) and after following the dictum in the earlier decision that Bench has stated thus: The principle deduced is thus clear that should there be no contract to the contrary, an insurance policy becomes operative from the previous midnight, when bought during the day following. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this court. However, in case there is mention of a specific time for its purchase then a special contract to the contrary comes into being and the policy would be effective from the mentioned time. The law on this aspect has been put to rest by this court. There is, thus, nothing further for us to deliberate upon. 9. I, therefore, consider that the insurance company was liable to pay the entire compensation. I find that the plea taken by insurance company in the written statement that though the vehicle was insured but it was not insured at the time of accident, was a baseless plea and the Tribunal wrongly exonerated the insurance company from making the payment of the award amount. The insurance company is, therefore, liable to pay the entire award amount. Perusal of record would show that insurance company and school, both, were directed to deposit 50 per cent of the award amount each. The school will be liable to recover this amount from the insurance company. 10. With this, the appeal stands disposed of.