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2023 DIGILAW 1838 (ALL)

Pushpa Singh v. Manoj Kumar Singh

2023-08-02

JASPREET SINGH

body2023
JUDGMENT : 1. These are a bunch of three appeals arising out of the award dated 23.01.2014 passed by Motor Accident Claims Tribunal/ Special Judge (Ayodhya Prakaran), Lucknow. Amongst the four initial appeals, Appeal bearing No.441 of 2014 (Smt. Shweta Lamba vs. Manoj Kumar Singh and another) was dismissed on 10.02.2017 on account of default and though an application for recall was moved, but that too was defective, hence, the Court was not inclined to take the matter forward. Consequently, the appeal stood dismissed. Thus, only three appeals bearing First Appeal From Order Nos. 488 of 2014, 439 of 2014 and 442 of 2014 are before this Court for consideration. 2. In order to appreciate the controversy and how the three appeals have evolved, it would be relevant to notice that one Shri Ajit Singh expired in a motor accident on 11.02.2010 while he was driving his Honda City Car bearing no. UP78-AZ-1116. He was travelling along with his family members, however the offending vehicle bearing no. UP32-T-8252, which was being driven rashly and negligently, hit the Honda City as a result of which, Shri Ajit Singh expired while his wife Smt. Pushpa Singh, his daughter Smt. Shweta Lamba and his grandson Master Ahan suffered injuries. 3. It is in the aforesaid backdrop that Claim Petition No.78 of 2011 came to be filed by all the legal heirs of deceased Ajit Singh, i.e. his wife Smt. Pushpa Singh, daughter Smt. Shweta Lamba and son Vivek Lamba and another daughter who was impleaded as respondent no.3 in the Claim Petition, namely Reshma (who was not travelling in the car with the family members). This Claim Petition was primarily in respect of compensation on account of death of Shri Ajit Singh. 4. Another Claim Petition was filed by Smt. Pushpa Singh in her personal capacity bearing no.77 of 2011 on account of injuries sustained by her. Smt. Shweta Lamba the daughter travelling with the family filed her Claim Petition bearing no. 425 of 2010 seeking compensation for the injuries sustained by her and so also a Claim Petition bearing no.76 of 2011 was filed on behalf of her son Master Ahan (grandson of late Ajit Singh). In this fashion four Claim Petitions were filed, one for compensation for death of Ajit Singh, whereas other three were for seeking compensation on account of injuries sustained by the respective persons as mentioned above. In this fashion four Claim Petitions were filed, one for compensation for death of Ajit Singh, whereas other three were for seeking compensation on account of injuries sustained by the respective persons as mentioned above. All the four Claim Petitions were clubbed and were contested together. 5. Primarily the owner of the offending vehicle/ Truck bearing no.UP32-T-8252, namely Manoj Kumar Singh filed his written statement denying the allegations, however he stated that his vehicle in question was duly insured and also the driver possessed a valid and a subsisting license and the truck also possessed all necessary documents, thus, in case if any award is passed, it would be the Insurance Company who would be liable to subrogate the award. 6. The Insurance Company filed its separate written statement and contested on the plea that the truck in question was not insured on the given date and time inasmuch as it was stated that the accident occurred on 11.02.2010 at around 11 a.m. whereas the insurance policy issued by the Company though dated 11.02.2010 was effective from 6.13 p.m. and thus at the time when the accident occurred the truck in question was not insured, hence no liability could be fastened on the Insurance Company. 7. Upon the exchange of pleadings, the Tribunal framed 6 issues and the parties respectively lead their documentary as well as oral evidence. It will be relevant to notice at this stage that Manoj Kumar Singh, the owner of offending truck did not put in appearance as a witness nor his driver was examined as a witness and practically the matter proceeded ex-parte against him. 8. The Tribunal, while noticing the Claim Petitions before it on merit, found that the accident had occurred on 11.02.2010 and also found that it was on account of rash and negligent driving of the offending truck driver bearing no. UP32-T-8252. The Tribunal while considering the issues nos.2 and 3 found that the driver did possess a valid and subsisting license and the truck also had a valid fitness certificate, a pollution certificate, however it recorded that the truck did not have any permit as no such document was placed on record. 9. UP32-T-8252. The Tribunal while considering the issues nos.2 and 3 found that the driver did possess a valid and subsisting license and the truck also had a valid fitness certificate, a pollution certificate, however it recorded that the truck did not have any permit as no such document was placed on record. 9. The Tribunal while considering the fact whether the truck was insured or not, noticed that the truck was insured on 11.02.2010 but since the policy which was brought on record indicated that the policy was valid with effect from 6.13 in the evening, therefore, at the time when the accident occurred, i.e. 11 a.m., the truck could not be said to be duly insured. The Tribunal thereafter went ahead to compute the compensation and in the case relating to the death of Ajit Singh awarded a sum of Rs.10,69,000/-along with 7 percent interest in favour of the claimants by means of award dated 23.01.2014, however it absolved the Insurance Company of its liability and directed the award to be honoured by the owner namely, Manoj Kumar Singh. This award passed in Claim Petition No.78 of 2011 has given rise to First Appeal From Order No.488 of 2014. 10. Similarly, in the Claim Petition filed by Smt. Pushpa Singh bearing no. 77 of 2011 the Tribunal awarded a sum of Rs.13,000/-as compensation towards the injuries sustained by her by means of an award dated 23.01.2014 also fastening the liability of the award on the owner of the truck and absolving the Insurance Company. Thus the award passed in Claim Petition No.77 of 2011 has given rise to First Appeal From Order No.442 of 2014. 11. In so far as Claim Petition filed by Smt. Shweta Lamba bearing no.425 of 2010, seeking compensation for her injuries is concerned, the same was also allowed awarding sum of Rs.50,939/- along with 7 percent interest vide award dated 23.01.2014 fastening the award on the owner of the truck and absolving the Insurance Company which has given rise to First Appeal From Order No.441 of 2014. As already noticed above, First Appeal From Order filed by Smt. Shweta Lamba bearing no.441 of 2014 was dismissed in default on 10.02.2017 and the attempt of the appellant-Smt. Shweta Lamba to restore the appeal also failed, consequently, First Appeal From Order No.441 of 2014 got a quietus. 12. As already noticed above, First Appeal From Order filed by Smt. Shweta Lamba bearing no.441 of 2014 was dismissed in default on 10.02.2017 and the attempt of the appellant-Smt. Shweta Lamba to restore the appeal also failed, consequently, First Appeal From Order No.441 of 2014 got a quietus. 12. The Claim Petition preferred by Master Ahan bearing no.76 of 2010 was also allowed for a sum of Rs.34,679/-along with 7 percent interest and the owner of the truck was required to pay the same, which has given rise to First Appeal From Order No.439 of 2014. 13. In the aforesaid factual backdrop, the three subsisting appeals : (I) Appeal bearing no. 488 of 2014, which relates to the compensation on account of death of Ajit Singh, (II) Appeal bearing no. 439 of 2014, filed by Master Ahan for the enhancement of compensation for the injuries sustained by him, and (III) Appeal bearing no. 442 of 2014 filed by Smt. Pushpa Singh seeking enhancement of compensation for the injuries sustained by her, are now being considered on merits. 14. The Court has heard Shri Mohd. Saeed, learned counsel for the appellant in all the three appeals and Shri Anil Kumar Srivastava, learned counsel for the respondent-Insurance Company. Even before this Court, the owner of the truck Manoj Kumar Singh despite service has not put in appearance. 15. The submission of learned counsel for the appellants is two-fold. It has been urged that the Tribunal has erred in fastening the liability on the owner, whereas from the record it was clearly established that the insurance policy was issued on 11.02.2010 at 12 noon. Even though if the time of commencement has been mentioned as 18.13 hours yet it would relate back from the midnight of the previous day. He has further urged that the record would indicate that the owner of the truck had filed the insurance policy before the criminal Court for getting his truck released and the appellants had obtained the documents from the said Court which was filed before the claims Tribunal and the said policy as filed by the appellants indicated that the policy was valid from 11.02.2010 till 10.02.2011 midnight to midnight. It is urged that the policy which was furnished by the Insurance Company indicated that though the insurance policy was issued at 12 noon and it was made effective from 18.13 hours, but there was a discrepancy between the two policies. Nevertheless, the witness who was examined on behalf of Insurance Company, Pawan Kumar Sharma, in his cross examination clearly stated that the insurance policy is issued only after receiving the premium amount from the customer. He further stated that the time of issuance of the policy indicated 12 noon which is the default time generated by the system. The learned counsel has pointed out that as per the aforesaid witness the policy was issued at 12 noon yet it would relate to the time of midnight of the previous day. 16. It has been urged by the learned counsel for the appellants that the policy filed by the appellants has not been disputed at any stage by the Insurance Company. It is thus submitted that the finding recorded by the Tribunal to the extent that the truck was not insured at the given time and date and fixing the liability on the owner is apparently erroneous and is against the dictum of the Apex Court in Oriental Insurance Co. Ltd. Vs. Dharam Chand & others; 2010 (28) LCD 1353 and National Insurance Co. Ltd. vs. Mrs. Chinto Devi; ALR (40) page 645 (SC). Apart from the aforesaid two decisions of the Apex Court the learned counsel for the appellants has relied upon a decision of a Division Bench of this Court in Oriental Insurance Company Ltd. vs. Jagat Pal and others; 2013 (31) LCD page 849 to buttress his submissions. 17. The other limb of the argument of learned counsel for the appellants is that the Tribunal in case of death of Ajit Singh noticing that there were four legal heirs of the deceased yet it erred by going against the decision of the Apex Court in Sarla Verma and others vs. Delhi Transport Corporation and another; (2009) 6 SCC 121 and made deductions for personal expense of one-third instead of one-fourth. 18. 18. Learned counsel for the appellants further submits that the amount of compensation awarded to Master Ahan for his injuries is also on a much lower side inasmuch as merely a meager sum of Rs.34,679/-has been awarded, whereas he was entitled to a larger sum inasmuch he had undergone a surgery and this aspect has not been appropriately considered by the Tribunal. 19. In so far as the appeal preferred by Smt. Pushpa Singh for enhancement of her compensation towards personal injuries is concerned, it has been urged that the Tribunal has failed to consider the injuries suffered and in a casual manner has awarded a meager amount of Rs.13,000/-. It is also submitted that the award is bad for directing the owner to pay the liability apart from the fact that appropriate compensation has also not been awarded, thus the same deserves to be enhanced. 20. Shri Anil Kumar Srivastava, learned counsel for the Insurance Company has submitted that the Tribunal has correctly recorded a finding that the truck was not insured on the given day and time. It has further been submitted that the claimants had filed a photocopy of a policy bearing Paper No. C16/10 which indicated that the period of insurance was from 11.02.2010 to 10.02.2011 from midnight to midnight. It is further submitted that this particular policy was verified and it was contrary to the policy which was issued by the Company, a copy of which has been placed on record as Paper No. C-44/5. Another policy has been placed on record bearing Paper No. C-25/2, which indicates that though the policy was issued on 11.02.2010 at 12 noon, but was made effective from 18.13 hours commencing from 11.02.2010 to 10.02.2011 midnight. It is relying upon the aforesaid document bearing Paper No. C-25/2 that it has been urged that the Company is bound by the aforesaid insurance policy which is nothing but a contract and there is enough leverage available with the Company to put terms on the commencement of the insurance policy and in this case it was made effective from 18.13 hours on 11.02.2010 and as the accident occurred on 11.02.2010 at around 11 a.m., thus at the given date and time the truck was not insured and this has been appropriately dealt with by the Tribunal, hence this finding of fact which is based on evidence requires no interference. 21. 21. It has further been submitted that in so far as the deduction towards personal expenses is concerned, the Insurance Company does not have much objection as the same is now well settled by the decision of the Apex Court in case of Sarla Verma (supra) which has further been approved and reiterated in the Constitution Bench decision of the Apex Court in National Insurance Company Ltd. vs. Pranay Sethi; (2017) 16 SCC 680 . However, it is further submitted that in so far as the enhancement of compensation for the personal injuries is concerned, the Tribunal has taken a holistic view and has awarded appropriate compensation. All the documents which were filed by the claimants have been appropriately considered and noticing the same the compensation has been awarded. It is also urged that there is no evidence on record that any functional disability was suffered by any of the claimants seeking compensation for personal injuries and taking note of the aforesaid as well as the documents filed indicating the amounts spent for the medical treatment, which has been duly noticed by the Tribunal, the award has been made which does not require any interference. Hence, it is submitted that all the three appeals deserve to be dismissed. 22. The learned counsel for the appellants in rejoinder has tried to point out that the entire premise upon which the Insurance Company has laid its submissions is not quite correct and in order to buttress his submissions he has also relied upon an application preferred by the appellant under Order XLI Rule 27 of the Code of Civil Procedure, 1908 bringing certain additional documents on record to indicate that certain questionnaires were served in the criminal Court which indicate that the policy which was submitted before the criminal Court did not contain any time of commencement of the insurance policy. The submission is that in so far as the insurance policy submitted by the appellants is concerned, which was corroborated by the said questionnaires hence in the aforesaid circumstances there can be no manner of doubt that the Insurance Company would be liable and the appeals deserve to be allowed. 23. The submission is that in so far as the insurance policy submitted by the appellants is concerned, which was corroborated by the said questionnaires hence in the aforesaid circumstances there can be no manner of doubt that the Insurance Company would be liable and the appeals deserve to be allowed. 23. Before proceeding further it will be necessary to take a glance at the application filed by the appellants under Order XLI Rule 27 of the Code of Civil Procedure, 1908 bearing C.M. Application No.111177 of 2017 along with which certified copy of the application filed by Manoj Kumar Singh for the release of his truck, a questionnaire dated 29.04.2017 obtained from the Court of ACJM, Court No.15, Raebareilly, a questionnaire dated 19.05.2017 obtained from the Court of A.C.J.M., Court No.15, Raebareilly and another questionnaire dated 30.05.2017 obtained from the Court of A.C.J.M., Court No.15, Raebareilly and a statement of the witness recorded in course of enquiry of criminal case No.4017 of 2010 has been filed. The respondent-Insurance Company has also filed its objections to the same. 24. From the perusal of the said application it would indicate that in paragraph no.8 it has been stated that it is only after the case was decided that the appellants made efforts to get the copies of the documents which have been enumerated above and are being filed in terms of Order XLI Rule 27 of the Code of Civil Procedure, 1908. 25. At the very outset it may be stated that Order XLI Rule 27 of the Code of Civil Procedure, 1908 commences with a non obstante clause and it is not as a matter of right that any appellant is entitled to introduce evidence at the appellate stage. The said provision contains the conditions which necessarily have to be fulfilled to enable the Appellate Court to receive the said documents on record. It is in the aforesaid light if the facts of the instant case are seen it would indicate that the accident in question took place on 11.02.2010 and the Claim Petitions have been pending before the Tribunal from 2010 itself inasmuch as the earliest Claim Petition was filed by Smt. Shweta Lamba, however, the other Claim Petitions of the claimants were filed in the year 2011 and the award came to be passed in the year 2014. The documents said to have been brought on record, all relate to the year 2010. It is only the said questionnaires which have been obtained by the appellants on 29.04.2017 there is nothing on record to indicate or even in the affidavit to indicate as to what prevented the appellants from receiving the said questionnaires earlier. 26. In the first instance the veracity of such questionnaires is in itself doubtful in context of the fact and noticing the provision under which such questionnaires are issued. It will be relevant to notice Rule 141 of the General Rules (Criminal) and Rule 224 and 225 of the General Rules (Civil), which reads as under:- “[Extracted from General Rules (Criminal)]: 141. Application for information. Any person desiring to ascertain the serial number, date of institution or other registered particulars respecting a case or any proceeding therein, or of any judicial proceeding, the record of which is in the judge's or the magistrate's court or record-room, shall present or send by post to the officer in-charge of the record-room, an application preferably in Form 7(Part IX, no. 45), to which shall be affixed a court-fee label of five rupees52giving the best particulars he can as to the year of institution and names of parties. He shall be entitled to have a search made and the information, if obtainable, given to him in writing signed by the record-keeper within ten days of the date of receipt of application. The record-keeper shall mark each application with a serial number. In case the information be not supplied within ten days as aforesaid, the recordkeeper shall forthwith on the expiration of the said period of ten days report in writing to the court the cause of noncompliance with the application. The application shall after disposal be pasted under a separate serial number in a file book kept for the purpose and consigned to the record-room annually. Where the applicant desires that the information be supplied to him by post, he shall give his address at which it may be sent and affix to his application postage stamps of the requisite value. A printed copy of this rule in Hindi shall be posted on a notice-board in a conspicuous place in every court and also in the record-room. [Extracted from General Rules (Civil)]: 224. Application for information. A printed copy of this rule in Hindi shall be posted on a notice-board in a conspicuous place in every court and also in the record-room. [Extracted from General Rules (Civil)]: 224. Application for information. Any person desiring to ascertain the serial number and date of institution of any suit or other registered particulars respecting a suit, or any proceedings therein, or of any judicial proceeding, shall present or send by post to the Munsarim a written application stamped with a Court fee label of Rs. 5.0038 and giving the best particulars he can as to the year of institution and the names of parties. The Munsarim shall mark such application with a serial number and direct the official in charge of the relevant register to make a search. The information, if obtainable, shall be given to the applicant in writing, signed by the official in charge of the register, within three days from the date of the receipt of the application. In case such information cannot be given within three days, the Munsarim shall forthwith, on the expiration of the said period, report in writing to the Judge for his orders, the cause of the non-compliance with the application. A printed copy of this rule in Hindi shall be kept posted on the notice – board in a conspicuous place in every Court, and also in the office of every Munsarim. After disposal the application for search shall be posted in a file book in serial order. Each such file book shall be consigned to the record room at the end of each calendar year. 225. Application for information in pending cases. In pending cases, it will be open to a party to obtain certain information by means of written questions and answers in form No. VI-122. To this form must be affixed a Court – fee label of 50 paise for every two questions or less asked pertaining to the same case. N.B.-In no circumstance shall the right conferred by this rule be so exercise as to be in substitution of the method of obtaining more detailed information by inspection of the record or by copies.” 27. Apparently in terms of extracted Rules (General Rules (Civil and Criminal)) from above, it is provided that no questionnaire shall be issued in respect of any document of which a certified copy can be obtained. Apparently in terms of extracted Rules (General Rules (Civil and Criminal)) from above, it is provided that no questionnaire shall be issued in respect of any document of which a certified copy can be obtained. It is also to be noticed that the questionnaire cannot be issued by any authority to explain the content of any document and thus the said documents in terms of questionnaire are not valid to substantiate the contents as sought to be attempted by the appellants. 28. Leaving aside the aforesaid, for a moment, yet the fact remains that the issue raised by the Insurance Company was very well in the knowledge of the appellants and they had contested the entire proceedings on the aforesaid plea. This Court finds that the claimants themselves had filed the document bearing Paper No. C-16/10 on the record of the Tribunal along with the document list on 17.07.2012. Even once the award had been passed in the year 2014 and the appellants were aware of the reasons which have been recorded by the Tribunal in not accepting the submission of the claimants, yet they waited and the application has been moved in the year 2017. 29. Insofar as the statement of a witness filed with the document list alongwith the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 is concerned, that does not have too much of relevance to the issue involved in the instant appeal however, much emphasis has been laid by learned counsel for the appellants on the questionnaire which has been issued on 29.04.2017, 19.05.2017 and 30.05.2017. In light of the decision of the Apex Court in the case of Union of India vs. Ibrahim Uddin and another; (2012) 8 SCC 148 where the Apex Court had considered the scope and the applicability of the provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908 and noticing the principles culled out there from, this Court finds that there has been no worthwhile explanation given by the appellants as to why the said documents could not be filed earlier. 30. 30. Apparently from the consideration of the provisions contained in Order XLI Rule 27 of the Code of Civil Procedure, 1908 neither Clause (a) nor Clause (aa) are attracted in the instant case as it is not the case of the appellants that these documents were filed before the Tribunal but the Tribunal has failed to take note of it or that the documents came into light only after the award was passed. Now the only residue is Clause (B) of Order XLI Rule 27 of the Code of Civil Procedure, 1908 which vests ample power with the Court to take it on record if the said documents are considered necessary in the opinion of the Court to arrive at a conclusion and deliver an effective judgment. 31. It is in this view of the matter that the Court had heard the learned counsel for the parties and after perusing the application and the documents sought to be produced on record this Court cannot persuade itself to come to the conclusion that the documents which have been produced as additional evidence have any relevance and would be relevant and imperative for this Court to consider and would be helpful in passing an effective order or to do complete justice between the parties. Consequently, the said application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 is rejected. 32. The reliance placed by the learned counsel for the appellants on a decision of the Rajasthan High Court in Miss Devi vs. Rajkumar and another; 2021 (2) T.A.C. 413 (Raj.) would reveal that it is factually quite different to the facts of the present case and for the reasons recorded herein-above, the decision of the Rajasthan High Court is not helpful to the appellants. 33. Now coming to the merits of the contentions raised by learned counsel for the parties, the point for consideration involved in the instant appeal is two-fold. (I) Whether the appellants who otherwise have been awarded the compensation and it has been held that the truck was not insured, consequently, the owner is entitled to subrogate the award then in these circumstances where the owner of the truck has not assailed such finding whether the claimant can raise such issue in its appeal. (I) Whether the appellants who otherwise have been awarded the compensation and it has been held that the truck was not insured, consequently, the owner is entitled to subrogate the award then in these circumstances where the owner of the truck has not assailed such finding whether the claimant can raise such issue in its appeal. (II) The other point involved is in respect of enhancement as claimed by the appellants on the ground as already noticed herein above. 34. In respect of the first submission and the point for consideration, apparently, from the facts available on record, it is the case of the appellant that the accident occurred on 11.02.2010 at 11 a.m. Even taking the submission of learned counsel for the appellants on its face value it would indicate that the insurance policy which has been brought on record and relied upon by the Insurance Company indicates that it has been issued at 12 noon, however made effective from 18.13 hours. Another insurance policy which has been brought on record is Paper No. C-44 indicating that the insurance policy though issued at 12 noon but was made effective from midnight to midnight. 35. In the aforesaid backdrop, the issue before the Tribunal in this regard was regarding the rival insurance policies, to arrive at a conclusion. The Tribunal noticed that the witness who had come on behalf of the Insurance Company clearly indicated that the policy issued and filed on behalf of the Insurance Company contained the logo and the seal of the Insurance Company. The witness stated that the time of issuance of the policy is by default, as generated, from the system and he further stated that in the instant case since the owner of the offending vehicle had come to the Office and had paid the premium vide a demand draft, consequently, the policy was made effective from 18.13 hours on 11.02.2010. 36. 36. Taking note of the aforesaid, the Tribunal came to the conclusion that apparently on the date when the accident occurred the owner got the truck insured and the premium was paid vide a demand draft which is also dated 11.02.2010 and in the circumstances the demand draft could not have been received from the issuing Bank prior to lunch hours, and therefore after having received the consideration/ premium, the Tribunal held that, the policy even if issued at 12 noon would not cover the accident as it had occurred at 11 a.m. and admittedly at that point of time no insurance cover for the offending truck had been purchased by the owner of the truck. 37. It is at this stage if the decision sited by the learned counsel for the appellants is noticed in case of Dharam Chand (supra) it would reveal that in the said case the Apex Court noticing the concession made by the counsel for the Insurance Company held that even though the insurance policy was issued and the premium was received at an earlier point of time, yet it would deem that the policy has become effective from the time of receipt of premium. The said decision is based on the concession of the counsel for the Insurance Company hence for the said reason it does not lay down a binding precedent and even otherwise factually seen it would reveal that in Dharam Chand (supra) premium was received at 4 p.m. and accident took place 4 hours later while policy was to commence from next day. Even in the instant case if the policy is made effective from the time of receiving premium even then it would be clear that there is no insurance as the accident took place at 11 a.m. and the premium was paid vide demand draft of same date, i.e. 11.02.2010 much after noon and moreover there is no evidence to the contrary, hence the said decision is of no help to the appellant. 38. While in Mrs. Chinto Devi (supra), the Apex Court noticed that generally when a policy is issued it will cover its liability from midnight preceding the same date but in case of any special contract as mentioned in the policy it will be made operative as per special contract. Since there was dispute regarding the time of purchase of policy hence the matter was remanded. Since there was dispute regarding the time of purchase of policy hence the matter was remanded. However in the instant case it is admitted that accident took place at 11 a.m. and while the policy which was proved was issued at 12 noon after the time of accident, of which premium was paid through demand draft much after noon and the policy was to commence at 18.13 hours much after the accident, hence this decision of Mrs. Chinto Devi (supra) also does not help the appellants. 39. The Division Bench of this Court in Jagat Pal (supra) has held that the contract of insurance which is voluntarily signed by the parties then the time provided in the contract and mentioned in the insurance policy is binding on the parties. In the said case before the Division Bench the accident occurred on 26.07.1991 at 2 p.m. and the accident also occurred at the same time therefore contention was since it would take time for the Insurance Company to complete the formalities to issue the policy and therefore it was not possible that the insurance was procured simultaneously at the time the accident occurred. In the aforesaid circumstances the Insurance Company had raised a plea that the vehicle was not insured. Negativing the aforesaid contention, the Division Bench held that once in the policy it was mentioned that the time and date is indicated then the policy would come into effect at the time i.e. 2 p.m. and accident also occurred at 2 p.m. hence the Insurance Company cannot avoid its liability. This decision again is factually quite at variance with the facts of the instant case and does not aid the appellants, but if the ratio is imported to the instant case and applied it may go against the appellants as the time in the policy in the instant case is 18.13 hours much after the accident and as per Jagat Pal (supra) case the Insurance Company is bound by the time in the policy. 40. From the provisions as noticed and for the decisions as stated by learned counsel for the appellants, this Court finds that if the propositions are made applicable in the instant case apparently the accident occurred at 11 a.m., this fact is not disputed. 40. From the provisions as noticed and for the decisions as stated by learned counsel for the appellants, this Court finds that if the propositions are made applicable in the instant case apparently the accident occurred at 11 a.m., this fact is not disputed. Even if the insurance policy is seen, it would indicate that it was issued at 12 noon and made effective from 18.13 hours on the same day. The fact that the policy which has been relied upon by the appellants is a copy which they say have been received from the criminal Court but is not accepted by the witness of the Insurance Company. Another important aspect which needs to be considered is that the owner of the truck did not enter into the witness box. He was the best person to have explained about the original policy which would be available with the said owner however that was not placed on record nor he was summoned as a witness by the claimants. It will also be noticed that there is another reason apart from the discrepancy in the insurance policy and that is that there was no permit of the truck which was placed on record and this finding has been recorded and not assailed either by the owner or by the claimants. 41. It is understood that in so far as claimants are concerned, they can be treated as an aggrieved party seeking enhancement of compensation but primarily a motor accidental claim is a claim in the law of Tort where the liability is between the tortfeasor and against whom the tort has occurred. In the instant case the claimants are the heirs of a deceased party and also persons who have received personal injuries. They have filed a claim against the tortfeasor who is a driver who was actually driving the truck but he has not been made a party but for the reasons of constructive/ vicarious liability it is the owner who is liable, who is a party to the proceedings. 42. The contract of insurance is between the insurer and the insured and is a separate contract altogether with which the claimants are not concerned. They are only entitled to recover the amount from tortfeasor and in the instant case it would be the driver and the owner of the truck, who is vicariously responsible. 42. The contract of insurance is between the insurer and the insured and is a separate contract altogether with which the claimants are not concerned. They are only entitled to recover the amount from tortfeasor and in the instant case it would be the driver and the owner of the truck, who is vicariously responsible. The provisions of the Motor Vehicle Act, 1988 makes it compulsory to get a vehicle insured with a minimum third party risk covered and in case of third party claim arising against such insured vehicle then it is the Insurance Company who is obliged to indemnify the award provided and subject to the provisions and defenses available to an Insurance Company and only on such limited grounds it can avoid its liability which amongst others include where there is no valid insurance policy on the date and time of the accident. 43. In this regard the decision of the Apex Court in Balu Krishna Chavan vs. the Reliance General Insurance Co. Ltd. & Ors.; 2022 LiveLaw (SC) 932 can be gainfully referred and the relevant paragraphs reads as under:- “ 8. Hence, the only aspect for our consideration herein, is as to whether in the facts and circumstances of the present case, an order to direct the Insurance Company to “pay and recover”, is required to be made. On this aspect, the law is well settled that if the liability of the Insurance Company is decided and they are held not to be liable, ordinarily, there shall be no direction to “pay and recover”. However, in the facts and circumstances arising in each case, appropriate orders are required to be made by this Court to meet the ends of justice. 10. Therefore, on the legal aspect, it is clear that in all cases such order of “pay and recover” would not arise when the Insurance Company is not liable but would, in the facts and circumstances, be considered by this Court to meet the ends of justice.” 44. In Deokar Exports Pvt. Ltd. vs. New India Assurance Co. Ltd.; (2008) 14 SCC 598 the Apex Court considering the importance of an insurance contract in context with its terms and conditions has held as under:- “A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Ltd.; (2008) 14 SCC 598 the Apex Court considering the importance of an insurance contract in context with its terms and conditions has held as under:- “A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter-proposal of the respondent (that is respondent's acceptance with modification) which would result in a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter-proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date.” 45. Now, in the aforesaid background of legal propositions as notice above, from the material available on record and the findings recorded by the Tribunal, this Court is unable to persuade itself to take a different view for the reason that the policy which is relied upon by the appellants does not inspire confidence. The appellants are not the persons from whom the policy can be said to have come from proper custody. The original policy can either come from the owner or the Insurance Company and in both cases it is not so. The appellants could not have proved the alleged photocopy of the policy which in any case was disputed by the Insurance Company. The Insurance Company has filed a copy wherein time and date has been mentioned and even assuming if the issuance of the policy is 12 noon but it has been made effective from 18.13 hours. The appellants could not have proved the alleged photocopy of the policy which in any case was disputed by the Insurance Company. The Insurance Company has filed a copy wherein time and date has been mentioned and even assuming if the issuance of the policy is 12 noon but it has been made effective from 18.13 hours. The truck would not be insured even at the time of insurance as mentioned in the policy, which is 12 noon, and if considered and certainly not if it is treated to have commenced from 18.13 hours, as the accident occurred at 11 a.m. thus in any case prior to the time of insurance or time of commencement as mentioned in the policy. 46. Even otherwise there is no denial of the fact that the premium was paid vide a demand draft on the same date and this has been amply explained by the witness appearing for the Insurance Company and taken note of by the Tribunal while recording its finding. Another fact of significance is that the last policy of the insurance of the offending vehicle had already expired about 40 days prior to the date of accident. Hence, noticing the entire chronology it would reveal that on 11.02.2010 the accident took place at 11 a.m. while the last policy had expired 40 days ago. On 11.02.2010, the premium is paid vide a demand draft of the same date after getting it issued from the banker and then purchasing the policy. Thus the policy was issued and the time of issuance was 12 noon and made effective from 18.13 hours and this policy is bearing the logo of the company with seal. 47. Thus for all the above noted reasons this Court finds itself in agreement with the Tribunal insofar as it recorded that the truck was not insured and the liability would vest with the owner. 48. Now the next issue regarding adequacy of the compensation is concerned, this Court finds that the grant of compensation towards conventional head have not also been appropriately granted inasmuch as the consortium which is available not only to the wife as spouse but also to the children as parental consortium has not been appropriately awarded which is also contrary to the decision of Apex Court in Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram; (2018) 18 SCC 130 . Ltd vs Nanu Ram Alias Chuhru Ram; (2018) 18 SCC 130 . Even the deduction towards personal expenses has not been made correctly and one-fourth should have been deducted instead of one-third. Thus, to this extent the submission of learned counsel for the appellants finds favour and by adding the aforesaid amount the claimants of Claim Petition No.78 of 2011 shall be entitled to the following amount : "Income = Rs.26,350/-per month Less:-(¼) = Rs. 6,588/-per month (from the income as personal expenses as there are four dependents) Thus total income = Rs.19,762/-per month Age 65 Multiplier 7 Thus compensation payable = Rs.19,762 x 12 x 7 = Rs.16,60,000/- Add Spouse consortium :- appellant no.1 = Rs.40,000/- Parental consortium :- for two daughters = Rs.80,000/- Parental consortium :- for one son = Rs.40,000/- Total = Rs. 1,60,000/- Loss of estate = Rs.15,000/- Funeral expenses = Rs.15,000/- Total = Rs. 30,000/- Thus, total compensation payment shall be Rs.18,50,000/- 49. Coming to the other limb of the submission of learned counsel for the appellants regarding enhancement of compensation for personal injury, this Court finds that apparently the Tribunal has not considered the issue of pain and suffering and non-pecuniary damages in the correct perspective and not noticing that a young child had suffered an injury who had to undergo surgical procedures, though simple on his foot, and remained hospitalized and also certain injuries which were received by Smt. Pushpa Singh. 50. Considering the dictum of the Apex Court in case of Kajal vs. Jagdish Chand and others; (2020) 4 SCC 413 wherein the Apex Court in Para 26 to 29 noticed and held as under:- "Pain, Suffering and Loss of Amenities 26. Coming to the nonpecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs.3,00,000/. In Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Ors., this Court while dealing with the issue of award under this head held that it should be at least Rs.6,00,000/, if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine month old child. As far as the present case is concerned, in addition to the 100% physical disability the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine month old child. This is a case where departure has to be made from the normal rule and the pain and suffering suffered by this child is such that no amount of compensation can compensate. 27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding compensation. While awarding this amount we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a nine month old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9 month old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love let alone grandchildren. She will have no pleasure. Her’s is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs.15,00,000/. Loss of marriage prospects 28. The Tribunal has awarded Rs.3,00,000/ for loss of marriage prospects. We see no reason to interfere with this finding. Future medical treatment 29. The claimant has been awarded only Rs.2,00,000/ under this head. This amount is a pittance. Loss of marriage prospects 28. The Tribunal has awarded Rs.3,00,000/ for loss of marriage prospects. We see no reason to interfere with this finding. Future medical treatment 29. The claimant has been awarded only Rs.2,00,000/ under this head. This amount is a pittance. Keeping in view the nature of her injuries and the fact that she is bedridden this child is bound to suffer from a lot of medical problems. True it is that there is no evidence in this regard but there can hardly be such evidence. She may require special mattress which will have to be changed frequently. In future as this girl grows, she may face many other medical issues because of the injuries suffered in the accident. Keeping in view her young age and assuming she would live another 5060 years, it would not be unjust to award her Rs.5,00,000/ for future medical expenses. How the compensation should be invested?" 51. This Court is of the view that the appellants namely Master Ahan and Smt. Pushpa Singh are entitled to an additional sum of Rs.25,000/-each for suffering and pain and other ancillary non-pecuniary heads. 52. Thus, First Appeal From Order No.488 of 2014 is partly allowed and the award dated 23.01.2014 passed in Claim Petition No.78 of 2011 shall be modified to the extent that the claimants shall now be entitled to a total sum of Rs.18,55,008/-with interest at the rate of 7% per annum from the date of application till the date of its payment. 53. The First Appeal From Order Nos. 439 of 2014 shall also stand partly allowed and the award dated 23.01.2014 passed in Claim Petition No.76 of 2011 shall be modified to the extent that the claimant shall now be entitled to a total sum of Rs.59,679/-with interest at the rate of 7% per annum from the date of application till the date of its payment. 54. The First Appeal From Order No.442 of 2014 shall stand partly allowed and the award dated 23.01.2014 passed in Claim Petition No.77 of 2011 shall be modified to the extent that the claimant shall now be entitled to a total sum of Rs.38,000/-with interest at the rate of 7% per annum from the date of application till the date of its payment. 54. Thus, the three appeals, as filed by the appellants, are partly allowed to the aforesaid extent. 54. Thus, the three appeals, as filed by the appellants, are partly allowed to the aforesaid extent. In the facts and circumstances, there will be no order as to costs. 55. The record of the Tribunal shall be returned forthwith, leaving it open for the appellants to recover the aforesaid sums from the owner of the truck/ respondent no.1 in accordance with law.