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2022 DIGILAW 1887 (ALL)

Phoolkali Yadav v. Bharat Trading Company

2022-11-30

SARAL SRIVASTAVA

body2022
JUDGMENT : 1. Since, all the aforesaid appeals arise out of the same accident and involve common issues, therefore, they are being decided by this common judgment. 2. Heard Sri Manu Saxena, learned counsel for the owner of Truck No.UGR 829, Sri Nagendra Kumar Srivastava, learned counsel for the Oriental Insurance Company, and Sri Ram Singh and Sri Amit Kumar Sinha, learned counsel for the claimant Kallu. 3. The FAFO Nos.2112 of 2003, 132 of 2021, 365 of 2008 & 384 of 2008 have been preferred by appellant M/s. Bharat Trading Company, Kanpur, owner of Truck No.UGR 829 challenging the award dated 03.06.2003, 17.07.2012, 12.11.2007 respectively passed by the respective concerned Motor Accident Claims Tribunal (hereinafter referred to as 'Tribunal'), whereby the Tribunal has held the negligence of the driver of Truck No.UGR 829 and further held that the truck at the time of the accident was not insured and accordingly, the Tribunal has fastened the liability upon the owner appellant to pay compensation to the extent of negligence of the driver of Truck No.UGR 829. 4. The FAFO Nos. 393 of 2008, 394 of 2008, 1603 of 2010 & 3845 of 2012 have been preferred by the appellant Oriental Insurance Company Ltd., Insurer of Truck No.UHJ-9765 challenging the award dated 12.11.2007, 25.02.2010 & 1.7.07.2012 passed by the concerned Tribunal whereby the Tribunal has fixed the liability upon the Insurance Company for the negligence of the driver of Truck No.UHJ-9765 in the accident. 5. The FAFO No.3861 of 2012 has been preferred by Smt. Phoolkali Yadav, wife of Late Surya Pal Yadav, who died in the accident, for enhancement of compensation. 6. Brief facts of the case are that on 28.08.2000 Truck No.UGR 829 was driven by one Suryapal Yadav which met with an accident with Truck No.UHJ-9765 at about 7:30 a.m. It is alleged that the driver of Truck No.UGR 829 was driving the truck rashly and negligently and dashed with truck No.UHJ-9765 on which the iron rods of the length between 7 ft. to 12 ft. were loaded and some of the iron rods were hanging on the truck. In the said accident, four persons, namely, Suryapal Yadav, Shiv Baran, Chand Babu, and Shah Mohd @ Guddu died and one Dharmendra suffered injuries. to 12 ft. were loaded and some of the iron rods were hanging on the truck. In the said accident, four persons, namely, Suryapal Yadav, Shiv Baran, Chand Babu, and Shah Mohd @ Guddu died and one Dharmendra suffered injuries. Hence, five claim petitions came to be instituted, out of which four were instituted by the dependents of the four deceased and one was instituted by one Dharmendra for the injuries suffered by him. 7. It is pertinent to note that both the trucks, i.e., Truck No.UHJ-9765 and Truck no. UGR-829 are insured with the Oriental Insurance Company. 8. The owner of Truck No.UGR 829 contested the claim petition by filing a written statement contending inter alia that the truck was being driven by a person, namely, Suryapal Yadav who was holding a valid driving licence at the time of the accident, and the truck was duly insured. It further pleaded that if any liability arises out of the same accident upon the owner, the same shall be indemnified by the Insurance Company as the truck was validly insured with the Insurance Company. 9. This Court has perused the original record of MACP No.15 of 2000, the reading of which discloses that a joint written statement of both the vehicles, i.e., UHJ-9765 and UGR-892 was filed by the Oriental Insurance Company denying its liability on the ground that both the vehicles are not insured, and the liability of the Insurance Company is subject to the condition that both the vehicles were being plied with valid papers. 10. The Tribunal based on pleading, framed several issues. 11. On the issue of contributory negligence, i.e., issue No.1, the Tribunal found that the iron rods were hanging on truck No.UHJ-9765, and truck No.UGR-829 had rammed into truck No.UHJ-9765 from behind, therefore, the negligence of the driver of truck No. UHJ9765 is to the extent of 75 % and that of the driver of truck No.UGR-829 to the extent of 25%. 12. It is pertinent to note that the Tribunal in MACP No.50 of 2001 has apportioned 50% negligence equally to the driver of both trucks involved in the accident. 13. 12. It is pertinent to note that the Tribunal in MACP No.50 of 2001 has apportioned 50% negligence equally to the driver of both trucks involved in the accident. 13. Similarly, in MACP No.14 of 2001, the Tribunal held 25% negligence of the driver of truck No.UGR 829 and fixed liability of 75% upon the Insurance Company for the negligence of the driver of Truck No.UHJ9765; in MACP No.9 of 2000, the Tribunal held 25% negligence of the driver of truck No.UGR829 and fixed liability of 75% upon the Insurance Company for the negligence of the driver of Truck No.UHJ 9765; in MACP No.77 of 2001, the Tribunal held 25% negligence of the driver of truck No.UGR 829 and fixed liability of 75% upon the Insurance Company for the negligence of the driver of Truck No.UHJ 9765 and in MACP No. 15 of 2000, the Tribunal held 25% negligence of the driver of truck No.UGR 829 and fixed liability of 75% upon the Insurance Company for the negligence of the driver of Truck No.UHJ9765. 14. The Tribunal further on the issue of insurance of truck No.UGR-829 held that the said truck was not insured as the accident had taken place at 7:30 a.m. and it is obvious that the cover note would have been issued on the date of the accident after the office of the Insurance Company had opened and as the cover note of insurance of truck No.UGR-829 has been issued after the accident, therefore, the truck was not insured on the date of the accident and, accordingly, it held the liability of the owner of truck No. UGR 829 to the extent of negligence of the driver of truck No.UGR 829 in all the claim petitions. 15. Now, this Court proceeds to consider the submissions advanced by the learned counsel for the parties with respect to the appeals preferred by the M/s. Bharat Trading Company. 16. 15. Now, this Court proceeds to consider the submissions advanced by the learned counsel for the parties with respect to the appeals preferred by the M/s. Bharat Trading Company. 16. It is contended by learned counsel for the appellant that perusal of the cover of truck No.UGR 829 clearly shows that no time of issuing the cover note has been mentioned by the agent of Oriental Insurance Company on the cover note and, it shall be deemed to be effective from 12 A.M. of 28.08.2000 and, therefore, truck No.UGR 829 was validly insured on the date of the accident and the Tribunal has erred in presuming that as the accident had occurred at 7:30 a. m., the cover note would have been issued after the office had started functioning, and thus, the finding of the Tribunal on the issue that the truck No.UGR-829 was not insured on the date of the accident, is not sustainable in law. 17. Per contra, Sri Nagendra Kumar Srivastava, learned counsel for the Oriental Insurance Company submits that the finding of the Tribunal that the cover note has been issued after the accident had occurred, is correct and based upon proper appreciation of facts and evidence on record. It is further submitted that the cover note had been obtained after the accident by the owner of truck No.UGR-829 by concealing the fact that the said truck had met with an accident, and in such view of the fact, it is submitted that the policy is void and finding of the Tribunal holding that truck No.UGR-829 was not insured is a finding of fact based upon proper appreciation of facts and evidence on record and does not call for any interference by this Court. 18. I have heard learned counsel for the appellants, learned counsel for the Insurance Company, and perused the record. 19. The Tribunal while deciding the issue of insurance of truck No. UGR-829 has recorded a finding that the accident had taken place at about 7:30 a.m. on 28.08.2000 and the cover note in respect of truck No.UGR-829 was issued on the same date, and the same might have been issued after the office of the Insurance Company had started functioning. Accordingly, it held that the cover note had been issued after the occurrence of the accident, hence, truck No.UGR 829 was not insured a the time of the accident. 20. Accordingly, it held that the cover note had been issued after the occurrence of the accident, hence, truck No.UGR 829 was not insured a the time of the accident. 20. This Court finds that the said finding of the Tribunal is perverse and against the record since this Court has perused the cover note of truck No.UGR 829 filed in Claim Petition No.15 of 2000, out of which FAFO No.394 of 2008 has been preferred. The cover note (paper No. 12K/6 of truck No.UGR-829) discloses that the cover note does not contain the time of issuing it. 21. The Apex Court in the case of New India Assurance Company Ltd. Vs. Bhagwati Devi and Others, 1999 (2) TAC 441 (SC) has held that if a time is mentioned in the policy, the policy shall commence from the time the cover note has been issued, whereas if no time has been mentioned in the cover note, the policy shall be deemed to have been effective w.e.f. 12:00 a.m. of the date on which cover note has been issued. 22. As the controversy in hand is covered by the judgment of the Apex Court in the case of New India Assurance Company Ltd. (supra), therefore, finding of the Tribunal holding that truck No. UGR 829 was not insured on the date of the accident is illegal and not sustainable in law, accordingly, is set aside. Consequently, this Court holds that truck No. UGR 829 was insured on the date of the accident, and therefore, the liability of the owner of truck No. UGR 829 shall be indemnified by the insurer of truck No. UGR 829, i.e. Oriental Insurance Company. 23. Now, Court proceeds to decide the appeal preferred by the Oriental Insurance Company. 24. The Oriental Insurance Company has preferred the appeals mainly on the ground that truck No.UHJ-9765 was stationary and was hit by truck No. UGR-829 from behind, therefore, there was no negligence of the driver of truck No.UHJ-9765 and, therefore, the finding of the Tribunal holding contributory negligence of the driver of truck No. UHJ9765 is illegal and not sustainable. 25. This Court may note that the issue of contributory negligence in the instant case has lost significance inasmuch as both the trucks involved in the accident were insured by the Oriental Insurance Company. 25. This Court may note that the issue of contributory negligence in the instant case has lost significance inasmuch as both the trucks involved in the accident were insured by the Oriental Insurance Company. This Court has held that truck No.UGR-829 was validly insured on the date of the accident and as both the trucks were insured by the Oriental Insurance Company, therefore, even if the arguments of learned counsel for the appellant Insurance Company are accepted and it is held that the accident was the result of the sole negligence of the driver of truck No.UGR 829, in that situation also, the liability to pay compensation would fall upon the Oriental Insurance Company. Thus, given the aforesaid fact, this Court does not find it appropriate to disturb the finding of the Tribunal on the issue of contributory negligence. Even otherwise, learned counsel for the Insurance Company could not demonstrate any perversity in the finding of the Tribunal on the issue of negligence, therefore, the finding of the Tribunal on the issue of contributory negligence is a finding of fact based upon proper appreciation of facts and evidence on record. Therefore, the contention of the appellant Insurance Company is rejected. 26. Now, this Court proceeds to consider the submissions advanced by the learned counsel for the parties with respect to the appeal preferred by Smt. Phoolkali Yadav, wife of Late Surya Pal Yadav who died in the accident. 27. The only submission advanced by the learned counsel for the appellant is that no amount towards future prospect has been awarded by the Tribunal, whereas considering the age of the deceased, i.e., 40 years, the claimants/appellants are entitled to 40% towards the future prospect because of the judgement of Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680 . 28. Per contra, learned counsel for the respondents has submitted that the compensation awarded by the Tribunal is just and adequate and as such, no interference is called for by this Court. 29. Pranay Sethi and Others 2017 (16) SCC 680 . 28. Per contra, learned counsel for the respondents has submitted that the compensation awarded by the Tribunal is just and adequate and as such, no interference is called for by this Court. 29. The submission advanced by the learned counsel for the claimants/appellants in respect of future prospect has got force in view of the judgment of Apex Court in the case of Pranay Sethi (supra), and thus, following the aforesaid judgment of Apex Court, this Court holds that the claimants/appellants are entitled to 40% towards future prospect considering the age of the deceased. It is also provided that enhanced amount of compensation shall carry 6% simple interest from the date of institution of the claim petition till its payment. 30. The appeals preferred by the M/s Bharat Trading Company, i.e., FAFO Nos.2112 of 2003, 365 of 2008, 384 of 2008 & 132 of 2021 are allowed. 31. The appeals preferred by the Insurance Company, i.e. FAFO Nos. 393 of 2008, 394 of 2008, 1603 of 2010 & 3845 of 2012 are dismissed. 32. The appeal preferred by the claimants/appellants of deceased Suryapal Yadav, i.e. FAFO No. 3861 of 2012 is partly allowed.