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British India General Insurance Co. Vs. Smt. Sona Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal From Order No. 51 of 1973
Judge
Reported in[1985]58CompCas104(All)
ActsMotor Vehicles Act, 1939 - Sections 94, 95, 96, 98, 106, 109 and 110D
AppellantBritish India General Insurance Co.
RespondentSmt. Sona Devi and ors.
DispositionAppeal allowed
Cases ReferredU. P. Road Transport Corporation v. Smt. Janaki Devi
Excerpt:
.....125 also makes the driver and owner of the vehicle liable for prosecution for failure to get the vehicle insured before taking it out to a public place. 8. it is thus obvious from the above discussion that the earlier contract of insurance was only valid up to october 6, 1967. this clearly indicates that although the vehicle in question had been insured with the appellant, the period of contract of insurance had come to an end on october 6, 1967. in order to fasten liability on the company for any claim arisingout of an accident which took place on october 7, 1967, it would be necessary for the claimant to establish that another insurance had been taken or at least a cover note had been issued by the appellant in favour of the owner of the vehicle in question. if the claimants asserted..........125 also makes the driver and owner of the vehicle liable for prosecution for failure to get the vehicle insured before taking it out to a public place. besides this, getting the vehicle insured is always in the own interest of the owner of the vehicle. liability on the insurance company, therefore, cannot be fastened unless and until there is proof on record to show that the vehicle in question stood insured with the insurance company on the date of the accident.8. it is thus obvious from the above discussion that the earlier contract of insurance was only valid up to october 6, 1967. this clearly indicates that although the vehicle in question had been insured with the appellant, the period of contract of insurance had come to an end on october 6, 1967. in order to fasten liability.....
Judgment:

Mithal, J.

1. The appellant insurance company has filed this F.A.F.O. being aggrieved by the decision of the Motor Accidents Claims Tribunal awarding compensation of Rs. 10,000 against the driver and the owner of the vehicle as also the insurance company. The amount so awarded has been made payable by the insurance company in spite of the fact that the insurance company had contended that the vehicle in question was not insured with it on the relevant date.

2. According to the claimant, the deceased was going to Muradnagar on October 7, 1967, at about 8.30-p.m in a buggi when it was struck by truck No, UPS 7441 which was coming from the opposite direction. As a result of the accident, Ram Chander died instantaneously. A claim petition under Section 110A was, therefore, moved before the Claims Tribunal asking for a sum of Rs. 25,000 by way of compensation. In the claim petition, Mahboob Singh, owner of the truck, and Arjun Singh, its driver at the relevant time, were also impleaded as respondents Nos. 1 and 2. However, in spite of service through publication, they did not put in appearance in the court to contest the petition. The insurance company, the appellant alone contested the claim petition and it was contended by it that the truck in question was insured with it earlier but its period had expired on October 6, 1967, i.e., a day before the date of the accident. It was further pleaded that since the truck was not insured with the appellant on the relevant date, it was not liable for the compensation to the claimant:. At the time of framing of issues, a statement of the counsel for the appellant was recorded in which it was disclosed that the same truck was again insured by the appellant's insurance company on November 3, 1976, and the period of the earlier contract of insurance had expired on October 6, 1967. However, no document pertaining to the subsequent insurance was filed on record at that time. The case was taken up in July, 1972, and the arguments were concluded on July 27, 1972. After this date and before the date of the judgment an effort was made on behalf of the insurance company to file the documents pertaining to the subsequent contract of insurance which took place on November 3, 1967, but the application was dismissed by the Claims Tribunal on the ground that it was belated and in spite of the fact that the insurance company was in possession of the documents and was aware about the claim petition. The court after rejecting the application for additional evidence proceeded to decide the claim petition. After holding the owner of the truck and its driver responsible for the payment of compensation, the Tribunal further came to the conclusion that it was the duty of the insurance company to have filed the subsequent policy on record in order to show that the truck in question was not covered by any insurance policy with the appellant on the relevant date. Since the subsequent insurance policy had not been placed on record, the court presumed that the vehicle must have been insured with the appellant and on that basis it has decreed that claim against the insurance company also. It is under these circumstances that the present F.A.F.O. has been filed by the insurance company against the award given by the Claims Tribunal.

3. The learned counsel appearing for the insurance company has submitted that there was no privity of contract between the owner of the vehicle and the appellant and in the absence of the same, no liability can be placed on the shoulders of the appellant to pay compensation to the claimants. According to him, liability of the insurance company to pay any compensation awarded to the claimants on a petition under Section 110A of the M. V. Act, 1939, arises only when there is a subsisting contract of insurance between the owner of the vehicle and the insurance company. The nature of liability of the insurance company is that of an indemnifier and it has a right to recover the amount so paid from him after satisfying the award of the Claims Tribunal on behalf of tha owner. He further submitted that the fact that this truck was insured with the appellant prior tothe date of accident and that it was subsequently also insured with the appellant's company cannot, without anything more, fasten the liability on the appellant for any accident which took place between the said two dates. Since the earlier contract of insurance had expired on October 6, 1967, and the new contract of insurance had not taken place until. November 3, 1967, the appellant was not liable to pay any compensation, There appears to be some force in this contention.

4. Section 94 of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'), ordains that no motor vehicle can be used in a public place unless the same had been insured as required under the Act. Section 95 provides the conditions which must necessarily be included in the contract of insurance. Sub-clause (4) of Section 95 provides that a valid policy under this Act must necessarily be evidenced by a certificate of insurance in the prescribed form and should contain the necessary particulars. In order to extend the liability of the insurance company and with a view to facilitate the day-to-day working, Sub-clause (4A) has been introduced which lays down that the insurance company can issue a cover note to the insured which must be followed by a policy of insurance and in case it is not so followed by a policy of insurance, then this fact must be brought to the notice of the registering authorities within seven days of the expiry of the period fixed in the cover note. Sub-clause (5) of Section 95 provides that the insurer would be liable to indemnify the insured in respect of the liability covered by the policy of insurance.

5. Section 96 of the Act casts a duty on the insurer to satisfy any judgment which may be passed in a proceeding under Chapter VIII of this Act against the insured in respect of third party risks covered by it. However, it is significant to note the opening words of Sub-clause (i) of this section which is in the following language :

' 96. (1) If, after a certificate of insurance has been issued under Sub-section (4) of Section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 95 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy......'

6. Sub-section (6) of the Section curtails the rights of the insurer to avoid its liability to satisfy the judgment in favour of the claimant. It is, therefore, significant that while it is necessary for the insurance company to satisfy any judgment that may be given against an insured in respect of the vehicle covered by the policy, yet before any such liability can arise it must be shown that there exists a policy of insurance as provided for under Section 95 of the Act. This clearly signifies that the existence of aninsurance policy is a sine qua non for fixing any liability on the insurer to indemnify the insured in respect of a judgment against it. The provisions of Sections 94, 95 and 96, therefore, can come into play against the insurance company only when it is provided that there did exist a contract of insurance between the owner of the vehicle and the insurance company as regards the motor vehicle involved in the accident. If this condition is not satisfied, the liability of the insurance company to satisfy the judgment neither arises nor can it be enforced. From the very nature of these provisions, it is clear that the burden is on the claimant to establish that there existed such a contract of insurance between the insured and the insurance company and that such a contract subsisted on the date when the accident took place. It is only on the proof of those facts that any liability to indemnify can arise against the insurance company.

7. It was submitted on behalf of the respondent that the claimants normally are destitutes and they may not be in a position to find out the particulars of insurance. It is true that sometimes it may be difficult for the claimant to gather information about these particulars, but the Act has amply taken care of this aspect of the matter by providing under Section 98 that the owner or the driver of the vehicle would be bound to disclose to the court particulars of insurance, A similar provision has been made under Section 106 of the Act which requires that the owner and the driver of the vehicle must be in a position to produce a certificate of insurance when demanded by any, authority. Similarly Section 109 of the Act provides that the registering authorities are also bound to provide necessary particulars in respect of the vehicle involved in an accident. All these provisions clearly indicate that the legislature has prescribed a mode to obtain information regarding insurance both from the authorities as well as from the owner of the vehicle. These provisions, therefore, show that the claimant must obtain necessary information by any of the aforesaid modes. Section 125 also makes the driver and owner of the vehicle liable for prosecution for failure to get the vehicle insured before taking it out to a public place. Besides this, getting the vehicle insured is always in the own interest of the owner of the vehicle. Liability on the insurance company, therefore, cannot be fastened unless and until there is proof on record to show that the vehicle in question stood insured with the insurance company on the date of the accident.

8. It is thus obvious from the above discussion that the earlier contract of insurance was only valid up to October 6, 1967. This clearly indicates that although the vehicle in question had been insured with the appellant, the period of contract of insurance had come to an end on October 6, 1967. In order to fasten liability on the company for any claim arisingout of an accident which took place on October 7, 1967, it would be necessary for the claimant to establish that another insurance had been taken or at least a cover note had been issued by the appellant in favour of the owner of the vehicle in question. In the absence of such evidence, no responsibility can be fixed on the insurance company to satisfy the judgment or award of the Claims Tribunal against the owner and driver of the vehicle. The fact that the driver and the owner of the vehicle kept away from appearing before the Tribunal cannot relieve the claimants from their responsibility of filing necessary documents on the record.

9. It has been submitted on behalf of the respondent that the very purpose of adding Chapter VIII in the Act was to provide for a speedier remedy to the claimant who may become a victim of an accident involving the use of motor vehicle and further to facilitate the recovery of compensation awarded. The provisions in the chapter, already referred to earlier, show the anxiety of the legislature to render whatsoever help is possible to the claimants in getting speedy relief. But the anxiety to give speedy relief cannot be allowed to result in serious injustice to any other party. It is not possible for the insurance company to prove the negative', i.e., that a particular vehicle was not insured with it. Law of evidence requires that positive facts must be proved by the party. If the claimants asserted that the particular vehicle involved in the accident was insured with the insurance company on a particular date, then this fact must be brought forth on the record and be proved like any other fact. In this case, the claimant could have obtained necessary particulars from the registering authorities, but it appears that no effort was made for the purpose. Even at a late stage when the insurance company came to know that some truck had been insured with it on November 3, 1967, the claimant resisted its application to bring the documents on record. The court ought to have permitted these papers to be brought on record. Even though it was contended for the claimants that the insurance company had fabricated these documents, yet the court should hav& first examined them to form a prima facie view about their genuineness by directing the claimants to file certified copies from the records of registration authorities before admitting them and, thereafter, it could also afford an opportunity to show that the documents had been forged, to the claimant.

10. The question next arises is whether the claimants would be without any remedy That is not so. The remedy of the claimant now lies only in proceeding against the owner of the vehicle and the driver and to seek satisfaction of the award from the properties of the owner of the vehicle and its driver. Primarily they are the persons who are responsible for payment of the compensation awarded to the claimants. The Act merelymakes beneficial provision for speedy and trouble-free satisfaction of the judgment of the Tribunal by providing compulsory insurance of vehicle and making the insurance company responsible to satisfy such claims instead of making the claimant run after the owner and the driver of the vehicle. But where there is no contract of insurance between the parties, the owner and the driver alone have to be pursued for the realisation of the amount awarded as compensation.

11. In any case, on the record, there is at present no evidence to show that the offending vehicle was insured with the appellant on the date of the accident Und, therefore, the appellant cannot be directed to indemnify the claimants on the basis of the award of the Tribunal.

12. The claimant has filed a cross-objection seeking to enhance the amount of compensation from Rs. 10,000 to Rs. 25,000. The appellant, however, took a preliminary objection on the ground that no cross-objection lies in a case decided under Section 110D of the Act. He has in this connection referred to two cases of this court: Virendra Singh v. Smt. Phoolmati [1978] All LR 862 and Surjan Singh v. Smt. Sharda Devi [1979] All LJ 316. I need not refer to these cases as the matter now stands concluded by a Full Bench decision of this court in F.A.F.O. No. 203 of 1976--U. P. Road Transport Corporation v. Smt. Janaki Devi decided on March 23, 1982 [1984] 55 Comp , Cas 526 (All). The Full Bench has held that a cross-objection is maintainable even in an appeal arising under Section 110D of the M.V. Act. The preliminary objection, therefore, is rejected.

13. On merits, it may be stated that the deceased was a Bharbhoonja by profession and was aged about 40 years at the time of his death. The claimant herself, as P.W. 2, stated that the deceased used to earn Rs. 300 to Rs. 350 per month from the said profession. From the memo of appeal, it is apparent that the deceased left behind his widow, two minor sons and four daughters. In a family of seven persons, it is almost certain that a major portion of the income must have been spent by the deceased on feeding the family and even in their maintenance. The Tribunal has taken the monthly dependency of the claimants as only Rs. 50, which I consider to be totally inadequate. In my opinion, looking to the size of the family, their status in life and the meagre income, the deceased must have been spending only Rs. 150 per month on himself and the rest of his income over the claimants. However, the Tribunal has taken a period of 30 years as period of dependency in order to determine compensation. This, in my opinion, was not proper. The widow certainly could be entitled to maintenance throughout her expected life but the two sons would be entitled to support only till they were minors. The elder son was aged 14 years at the time of the petition and younger one was only 9 years. Both of themwould have got support from the deceased for four years' and nine years respectively. Similarly, the minor daughters would have been married of at the age of near about 18 years and alter that they would no longer have been dependent on their father. In this view of the matter, the daughters and the sons would be entitled to compensation for loss of dependency for such period until each of them attained the age of 18 years.' Further, the deceased must have saved from his earnings some amount for the purpose of meeting the marriage expenses of his daughters. It would be safe to assume that out of a sum of Rs. 150, a sum of Rs. 50 per month would have been set apart by the deceased for meeting the marriage expenses of his daughters and the remaining sum of Rs. 100 only would have been spent by him on meeting the family expenses till such time as all the children were either married or became self-supporting. Out of these family expenses, he might have been spending only Rs. 25 per month on his widow. The rest of the money must be equally divided among the six children. Thus, out of Rs. 900 per year spent on them, each would have been benefited to the extent of Rs. 150 per year. Apart from this, each of the daughters would be entitled to compensation in respect of. their marriage expenses, from out of the savings made by the deceased at the rate of Rs. 50 per month. Calculating the savings made on this count until the youngest daughter would attain the age of 18 years, the total amount comes to Rs. 6,525. Each daughter would be entitled to an equal share out of this and hence each will get Rs. 1,631 per marriage. The widow was aged about 35 years on the date of the petition. Longevity in the family has been held to be 70 years. The claimant would get support from her husband only for 30 years as her deceased husband was 40 years of age at the time of the accident.

14. However, the amount calculated on the basis of the above would have been received by the claimants only gradually and not in lump sum. Therefore, a deduction has to be made from these amounts. In my view, a deduction of 25% per cent, in this case would meet the ends of justice. Accordingly, in the final analysis, the claimants would be entitled to:

Claimant No.Name, age &relationshipRate; of compensationpayable. par year in rupeesNo. of YearsTotal AmountMarriage expensesTotalDeduction for lump sum paymentFinal amount of compensation

1

2

3

4

5

6

7

8

9

Rs.Rs.Rs.Rs.Rs.1.Smt. Sona Devi (35) widow300309,000X9,0002,2506,7502.Bhimsen (14) son1504600X6000,1500,4503.Jaipal (9) son15091.350X1,3500,337.501,012.504.Km. Kanti Devi (14) daughter15046001.6312.2310,5581,6735.Km. Hemwathi (7) daughter150111,6501,6313,2810,8202,4616.Km. Krishna Devi (5) daughter150131.9501,6313,7810,9452,8347.Km. Deiki (3 1/2) daughter15014 1/22,1751,6313,8060,951.502,854.50

Grand total 18,487

15. In view of above, I am of the opinion that the insurance company was not liable for satisfying the award that has been made against respondents Nos. 2 and 3, i.e., the owner and the driver of the vehicle. The appeal of the insurance company is, therefore, allowed. I am informed that at the time of granting the stay, the insurance company was required to deposit the amount awarded in the court below. Such amount, if still in deposit, may be withdrawn by it together with six per cent, interest therein from the date of the petition. If the amount so deposited has already been withdrawn, the insurance company may, if advised, proceed to recover it from* respondents Nos. 2 and 3. The cross-objection is also allowed in part and the amount of compensation awarded is Rs. 18,487 as given in the table in the body of this judgment apportioning the amount payable to each of the claimants separately with costs against defendants Nos. 2 and 3 only. In the circumstances of the case, the appellant and the cross-objectors will get their proportionate costs from respondents Nos. 8 and 9.


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