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2018 DIGILAW 52 (PNJ)

Oriental Insurance Co. Ltd. v. Jasbir Kaur

2018-01-09

ANITA CHAUDHRY

body2018
JUDGMENT Mrs. Anita Chaudhry, J.:- Delay in filing and refiling of appeal(s) condoned. 2. These are two appeals, one filed by the insurance companyand other by the claimants against the award dated 20.11.2007, passedby the Motor Accident Claims Tribunal, Patiala (here-in-after referredto as the Tribunal). 3. The facts need to be enumerated in detail. Ajit Singh aPeon with Punjabi University was proceeding on his Kinetic Hondascooter from Urban Estate, Patiala towards Telephone Exchange on14.05.2003. His son Varinderpal Singh was following him on aseparate scooter. At about 4:00 PM when Ajit was near the water tankof Phase-II on Rajpura - Patiala Road, a car driven by respondent no.1came in a rash and negligent manner from the link road side and leftside of the deceased and hit the scooter, as a result he fell down andsustained injuries and later succumbed to the injuries. 4. Respondents no.1 & 2(b) denied the accident and pleadedthat the scooter skidded and they had taken the injured to a clinic onhumanitarian grounds for first aid and thereafter he was taken to AmarHospital. It was pleaded that Ajit was over 60 years of age and he wasdriving the scooter negligently and at a high speed and when he saw thecar ahead of him he got nervous and suddenly applied brakes and hisscooter skidded. It was pleaded that respondent no.1 along with hisfather saw the scooterist falling on the road and stopped their car andtook him to the clinic and his son was called and thereafter he wasrushed to Amar Hospital in their car and no accident had taken placeand false case had been registered. It was pleaded that they had beenfalsely implicated and the special staff of the Crime Branch had foundthat the case was false and had recommended its cancellation. 5. The insurance company denied the accident and pleadedthat the policy had been procured after the accident. 6. The Tribunal accepted the statement of the son and heldthat respondent no.1 had caused the accident. The statement of RW-3was rejected. 7. The Tribunal had taken the income of the deceased atRs.5,000/- per month. One third was deducted towards personalexpenses and multiplier of 8 was applied to calculate the compensationof Rs.3,33,400/-. In para 18, there is a reference to the fact that the HighCourt vide its order dated 25.02.2007 had ordered payment ofRs.10,000/- to the claimant, therefore, that amount was added and anaward of Rs.3,43,400/- was passed. 8. One third was deducted towards personalexpenses and multiplier of 8 was applied to calculate the compensationof Rs.3,33,400/-. In para 18, there is a reference to the fact that the HighCourt vide its order dated 25.02.2007 had ordered payment ofRs.10,000/- to the claimant, therefore, that amount was added and anaward of Rs.3,43,400/- was passed. 8. I have heard counsel of both the sides. 9. The submission on behalf of the insurance company is thatit was a case of false implication and they had got the matterinvestigated and that report was submitted but the Tribunal did notconsider it. It was also urged that if it is found that the vehicle wasinvolved then the insurance company has to be exonerated as theinsurance had been taken after the accident and there is ample materialon the record in this regard. It was urged that the accident had takenplace at Patiala at 4:00 PM and according to owner the vehicle was atLudhiana and the cover note was issued at 2:50 PM and a perusal of thepolicy would show that it does not contain the details of the chassisnumber or engine number and there is no reference to the earlierinsurance policy and had there been detail of an earlier policy then thesurveyor was not required to examine the vehicle and but as there is noreference to the earlier policy, therefore, the survey was a must, it wasnot carried out that day. It was urged that the distance betweenLudhiana and Patiala is over 90 kilometers and takes over one and ahalf hour and the vehicle could not have reached Patiala by 4:00 PM. Itwas urged that the uncle of the driver is a DSP and it appears that somehelp had been received and the FIR was later sent for cancellation. Itwas urged that a perusal of Ex. R-2 would show that it does not havethe agent number and the premium had been deposited the next day andhad the amount been paid before 3:00 PM, it would have beendeposited in the bank the same day. 10. Itwas urged that a perusal of Ex. R-2 would show that it does not havethe agent number and the premium had been deposited the next day andhad the amount been paid before 3:00 PM, it would have beendeposited in the bank the same day. 10. The submission on behalf of the owner-driver was that itwas a case of false implication and no accident had occurred with thecar and there is a delay in lodging the FIR and they have made acomplaint to the Human Right Commission and the police had alsocarried out its investigation and had found that it was a false case andon the basis of the report submitted by the police his complaint wasdisposed of and the report and the statements were tendered inevidence. 11. The submission on behalf of the claimants was that theinquiry report had been procured from the police on account of theinfluence exercised by uncle of respondent no.1 who is a DSP. It wasurged that respondent no.1 had filed an application before the SSP forwithdrawal of the case and investigation was carried out by theSuperintendent of Police and a report had been given by the SSP, whichwas sent to Inspector General of Police on 29.03.2004 and this fact hasbeen pleaded in the replication and the report was that Jit Bachan wasinvolved and there were directions to arrest him and there wasrecommendation for filing of challan but later on it was managed. Itwas urged that the deceased was a Peon and addition towards futureprospects should be made and the multiplier of 11 would apply andaddition on the miscellaneous heads should be made as per the latestjudgment rendered by Hon’ble Supreme Court in National InsuranceCo. Ltd. Vs. Pranay Sethi,[2017(4) Law Herald (P&H) 2970 (SC) : 2017 LawHerald.Org 1565] : in SLP (Civil) No.25590 of 2014. 12. Since there is a serious dispute about the involvement ofthe vehicle and also whether it was insured after the accident, it isnecessary to first refer to the evidence led by the parties. 13. The claimants had examined Varinderpal Singh author ofthe FIR. As per the case put up by the claimants, the accident hadoccurred at 4:00 PM. The FIR was lodged within four hours.Varinderpal Singh had stated that he was following his father on aseparate scooter and the accident occurred in front of him. According tohim, his father was initially taken to Deep Hospital and was then shiftedto Amar Hospital. As per the case put up by the claimants, the accident hadoccurred at 4:00 PM. The FIR was lodged within four hours.Varinderpal Singh had stated that he was following his father on aseparate scooter and the accident occurred in front of him. According tohim, his father was initially taken to Deep Hospital and was then shiftedto Amar Hospital. The FIR records that a call was received fromhospital and a police official was deputed to record the statement. Thereis no dispute with respect to the time and the date of the accident. 14. The respondents had examined Jit Bachan who in hisaffidavit has stated that no accident has taken place with his car and itwas the deceased who was driving his scooter carelessly andnegligently and lost balance and fell down on the road and died on thespot. He has admitted his presence on the spot and had stated that he andhis father took the injured to a nearby clinic on humanitarian groundsand thereafter the son of the deceased was called and the injured wastaken to Amar Hospital. 15. The Tribunal had rejected the story put forward byrespondent no.1 and a finding was recorded that the vehicle wasinvolved and the accident occurred in the manner disclosed byVarinderpal Singh. The finding has become final as against Jit Bachan asno appeal had been filed by him. 16. The counsel appearing for the insurance company had urgedthat the FIR had been cancelled and the vehicle was not involved but thissubmission cannot be accepted. The FIR was prompt and it is difficult tobelieve that a person who helps another in the time of need would havebeen arrayed as an accused just to claim compensation. It could be thatJit Bachan after the accident assisted them as he was foreseeing aproblem on account of the accident, therefore he lent a helping hand toshift the injured to the hospital. The involvement of the vehicle isproved. The mere fact that the police cancelled the FIR does not make adifference. It has come in evidence that the uncle of Jit Bachan was aDSP and some help had come in and they got the FIR cancelled. The involvement of the vehicle isproved. The mere fact that the police cancelled the FIR does not make adifference. It has come in evidence that the uncle of Jit Bachan was aDSP and some help had come in and they got the FIR cancelled. TheTribunal had correctly assessed the evidence and had relied upon thestatement of Varinderpal who is the author of the FIR and the Tribunalhad rightly recorded a finding that the car was involved in the accidentand the death occurred on account of the accident caused by Jit Bachan. 17. Dealing with the appeal filed by the insurance Companyfirst, it is now to be examined as to whether the vehicle had beeninsured prior to the accident or after the accident. Copy of theregistration certificate shows that the year of manufacture of the car is1998. The accident had occurred in May 2003. The policy on which theowner has relied upon shows the date of issuance of cover note as14.05.2003 i.e. the same date on which the accident occurred. The timeindicated is 2:50 PM. The engine number and the chassis number arenot mentioned. 18. The argument led on behalf of the insurance company wasthat had the vehicle been insured prior to the accident then the details ofthe vehicle would have found a reference in the policy or on the covernote and it can be assumed that the vehicle was not insured prior to14.05.2003 and it would have required a personal survey by theirofficial. 19. The insurance company had got an inquiry conductedthrough their investigator and the investigator’s report was introduced inevidence, which reveals that the agent’s code number was mentioned onthe cover note but the agent had denied that the cover note was writtenby her. Somebody else had used the agent’s code on the cover notefalsely. The Branch Manager had admitted his signatures on the covernote and he had made a statement that the cover note was completed byDimple Chopra who had been providing business to him and he had notchecked the car personally on that day. The Branch Manager did notknow who had paid the premium and who got the car insured but he didremember that his signatures were obtained by one Dimple Chopra. The Branch Manager did notknow who had paid the premium and who got the car insured but he didremember that his signatures were obtained by one Dimple Chopra. Theinsurance policy was obtained at Ludhiana whereas the accident hadtaken place in Patiala and it would have taken over 1½ hour to reachPatiala and if the formalities of insurance had been taken place between2:50 up to 3:30 PM then the car could not reach Patiala by 4:00 PM.The investigator had rightly found a number of lapses in the policynamely there was no proposal form or pre-insurance inspection report.There is no reference of previous insurance. The number of kilometersthe car had covered was not mentioned. The engine and chassis numberwere not found on the cover note or in the policy. No digitalphotographs were taken. The agent whose number was used had deniedthat she had issued any policy. All the circumstances point out to thefact that the policy had been obtained after the accident and withsomeone who wanted to do a favour to the DSP who was related to theowner. The time indicated in the cover note/policy was wronglymentioned so as to bring the accident under the policy and it is held thatthe policy had been obtained after the accident and the insurancecompany would not be liable to pay the compensation. The compensation would be payable by the owner and driver jointly andseverally. The finding recorded by the Tribunal on this aspect isreversed. 20. Now coming the appeal filed by the claimants, the age ofAjit was mentioned as 56 in the postmortem report. The deceased hadleft behind his widow and two major sons. So it was only the wife whocould be said to be a dependent. The deceased was working as a peon inPunjabi University. Considering the salary certificate and keeping intoaccount the fact that there was some deduction on account of someloan, the income can be taken as Rs.5,464/- per month and making anaddition of 15% as per latest judgment rendered by Hon’ble SupremeCourt in National Insurance Co. Ltd. Vs. Pranay Sethi,[2017(4) Law Herald (P&H) 2970 (SC) : 2017 LawHerald.Org 1565] : in SLP (Civil)No.25590 of 2014, the income would be Rs.6,283/- for the purposes ofcalculation. 21. The claimants could have easily produced record to provethe age. It appears that it has been intentionally kept away. The ageindicated in the PMR would be taken and the multiplier applicablewould be 9. Pranay Sethi,[2017(4) Law Herald (P&H) 2970 (SC) : 2017 LawHerald.Org 1565] : in SLP (Civil)No.25590 of 2014, the income would be Rs.6,283/- for the purposes ofcalculation. 21. The claimants could have easily produced record to provethe age. It appears that it has been intentionally kept away. The ageindicated in the PMR would be taken and the multiplier applicablewould be 9. Since only the wife was a dependent, the deduction wouldbe 1/2 and the income available for calculations would be Rs.3,142/-per month (rounded off) and the compensation would be Rs.3,142/- x12 x 9 = Rs.3,39,336/-. Considering that the accident had taken place in2003, Rs.25,000/- is added for loss of consortium, Rs.5,000/- is addedfor funeral expenses and Rs.10,000/- for loss of estate and thecompensation payable was Rs.3,79,336/-. The Tribunal had allowedRs.3,43,400/-, which would be deducted. The remaining amount wouldbe payable with interest @ 6% by the owner-driver from the date offiling of appeal. If the insurance company has paid any amount that would be returned by the owner-driver to the insurance company withintwo months, failing which the insurance company can recover the sameby filing an execution petition and they would be entitled to interest aswould be awarded by the Executing Court. 22. The award is modified to the extent noted above. Theappeal (FAO-1809-2008) filed by the insurance company is allowed. The appeal (FAO-4640-2008) filed by the claimants is partly allowed.