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Parkash Wanti Vs. Gian Singh Etc. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 226 of 1967
Judge
Reported in1974RLR293
ActsMotor Vehicles Act - Sections 39
AppellantParkash Wanti
RespondentGian Singh Etc.
Advocates: G.R. Chopra and; D.K. Kapur, Advs
Cases ReferredKrishnamma v. Alice Veigas and
Excerpt:
motor vehicles - cover note - section 39 of motor vehicles act - application moved on allegation that deceased while going on cycle met with accident with scooter - allegedly accident caused by rash and negligent driving on part of respondent driving scooter - question arose that whether scooter insured with insurance company at time of accident - appellant contended that once it was shown that cover note was issued then unless it was further shown by insurance company that cover note followed by policy of insurance within prescribed time it must be assumed that policy of insurance followed cover note - no evidence led by insurance company to cast doubt on evidence of cover note - it must be assumed that cover note validly issued and covered insurance of vehicle in question. - - ..........certificate of insurance to include the 'cover note'. section 95 (4a) states that where a cover note issued by the insurer under the provisions of this chapter or the rules made there under is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which cover note relates has been registered or to such other authority as the state government may prescribe. (6) similarly section 105 cast duty on the insurer that whenever a policy of insurance is cancelled or suspended by the insurer who has issued the policy, the insurer shall within seven days notify such cancellation or suspension to the registering.....
Judgment:

Rajindar Sachar, J.

(1) This is an appeal under Section Hod of the Motor Vehicles Act, 1939 against the order of the Tribunal by which he has allowed the application and granted a sum of Rs. 19,440.00 to the appellant respondents 1 and 2, but has dismissed it against respondent No. 3.

(2) An application was moved by the present appellant No. 1, Smt. Prakash Wati widow of deceased Ram Lal on her behalf and on behalf of the minor children with the allegations that on 20-1-1964 the deceased while going on a cycle met with an accident with a motor scooter bearing registration No. Dlr 2595 and thereafter succumbed to the injury on the same day. It was alleged that the accident was caused by the rash and negligent driving on the part of Gian Singh who was driving the scooter. Respondent No.

(3) Was alleged to be the owner of the scooter and Respondent No. 3 was M/S Northern India Transporters Insurance Co. with which scooter was claimed to be insured. Respondent No. 3 took objection that the scooter was not insured with it and the trial court framed a preliminary issue that whether the vehicle in question was insured with respondent No. 3 at the time of accident By his order dated 28-4-1966 the Tribunal dismissed the application against respondent No. 3 as it found that the vehicle was not insured with respondent 3 on the date of the accident. On merits the Tribunal found that the accident was caused due to the negligence on the part of the driver. The Tribunal fixed the earning of the deceased at Rs. 175.00 p.m. On the finding of the Tribunal that the deceased was about 50 years, he came to the conclusion that he must have lived for 15 years more and thereforee computed the amount for 15 years and calculated the amount as Rs. 24,300.00. He however made deduction from this amount by 20% due to uncertainties of life following Krishnamma v. Alice Veigas and another 1966 A.C.J. 366 and thus granted an award of Rs. 19,440.00. The appellant feeling aggrieved has filed the present appeal. No appeal has been filed by respondents 1 and 2. The finding, thereforee, that the accident was caused due to rash and negligent driving by respondents No. 1 not having bean challenged, is hereby affirmed.

(4) Mr. Chopra appearing for the claimant at first objects that there was no justification for making deduction of 20% as has been done by the Tribunal. In my view there is no merit in this contention. It is apparent that the Tribunal has awarded a lumpsum payment to the claimant. A Division bench of this court in Ishwari Devi and others v. Union of India and others 1968 A.C.J. 141 has held :

'SINCEthe claimants get a lumpsum, and also because of the uncertainties of life, such as the deceased or the claimants might die before the expiry of the normal span of life, a deduction of 10 to 20 per cent from out of the amount of pecuniary loss has usually been made in decisions dealing with cases under the Fatal Accidents Act.'

The Division bench referred with approval to Krishnamma's case, the decision relied upon by the Tribunal. No grievance thus can be made as to 20% deduction because the same was made by the Tribunal because of the fact that lumpsum payment was ordered to be paid. The fact that it should have been 15% or 20% is a matter of discretion and it cannot be said that this discretion has been exercised so unreasonably as to call for any interference about the quantum of compensation.

(5) The next grievance of the appellant was against the decision of the Tribunal on preliminary issue holding that the vehicle in question was not insured with respondent 3. A reference to the record shows that the claimant in para 16 stated that the vehicle was insured with respondent No. 3. This para was admitted by respondent No. 1, Gian Singh. The insurance company however took up the objection that no particulars of the insurance have been furnished by the party and thereforee it is not possible to find out the papers. It was denied that the vehicle was insured with respondent No. 3. Again the company moved an application dt. 24-2-65 in which it made a grievance that no particulars have been given by the insurer either by the claimant as well as the driver and thereforee the company was unable to trace any cover of the said insurance. It prayed that the claimant be asked to give the particulars of the insurance. Public Witness 1 a clerk of the Transport Authority was examined by the claimant who stated that on 29-1-1964 Rattan Singh was a registered owner of this vehicle according to the record. This witness further deposed that it was insured with M/S Northern India Transport Insurance Co. as per declaration given by Rattan Singh owner on 10-1-1964 vide policy No. 27245 valid up to 27-5-1964, No receipt however was filed regarding the payment of the insurance premium. It will be seen that the accident took place on 20-1-1964. The relevant point, thereforee is to see whether on that day the vehicle was insured with the the company. This witness has given the evidence about the insurance of this vehicle earlier to this period also. In this evidence he also makes a reference to policy No. 3255 issued on 28-12-1963. The cover note Ex. R. 1 was filed by respondent No. 1 which shows that the motor scooter was insured with respondent No. 3. Column No. 4 of the cover note however makes it valid for 15 days from the date of the commencement of the risk. The date of issue of this cover note is 27-12-1963. Ex facie this cover note bears an endorsement 'cancelled' in ink. Unfortunately no one was examined by insurance company with respect to this cover note and to explain the various entries. Section 93 (b) of the Motor Vehicles Act defines certificate of insurance to include the 'cover note'. Section 95 (4A) states that where a cover note issued by the insurer under the provisions of this chapter or the rules made there under is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which cover note relates has been registered or to such other authority as the State Government may prescribe.

(6) Similarly Section 105 cast duty on the insurer that whenever a policy of insurance is cancelled or suspended by the insurer who has issued the policy, the insurer shall within seven days notify such cancellation or suspension to the registering authority in whose records the registration of the vehicle covered by the policy of insurance is recorded or to such other authority as the Government may prescribe. The argument of Mi. Chopra is that once it was shown that a cover note was issued then unless it was further shown by the insurance company that the cover note was followed by a policy of insurance within the prescribed time it must be assumed that the policy of insurance followed the cover note. In the present case no evidence was led by the insurance company that any information had been sent to the registering authority that the cover note was not followed by the policy of insurance. It will be seen that a duty is cast on the insurance company to inform the registering authority. The trial court has by virtue of cancellation endorsement held that the cover note must be deemed to be cancelled under the law as according to him he did not find any law which bars the cancellation of a contract between the two parties. In this, apparently the trial court ignored the fact that as the cover note is considered to be a certificate of insurance and as a duty is cast on the insurer to inform the registering authority if the cover note is not followed by a policy and as no information was given, it was the duty of the insurer to show by evidence that the cover note was cancelled and the circumstances under which it was cancelled. The company having led no evidence at all, it cannot be assumed by the mere endorsement of cancellation on the cover note that it had been properly cancelled and that the cover note was not followed by the policy. In this connection a reference to Section 96 of the Motor Vehicles Act will show that if after a certificate of insurance has been issued the insurer is not able to avoid its liability notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy of insurance. Sub-section (2) of Section 96 gives the defenses which are open to the insurer and provides that if it has received a notice of the proceedings it may defend the action amongst others on the ground that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability. It will thus be clear that if the insurance company wanted to show that the cover note produced by the driver of vehicle was cancelled or by any provision contained therein it should have led evidence to show to that effect. The trial court referred to Section 105 which cast a duty on the insurance company to inform the registering authority within 7 days of the cancellation of the policy and observed that the certificate of insurance cannot be termed as policy of insurance and Section 105 was thereforee of no avail. It apparently did not notice Section 95 (4A) which cast a similar obligation on the insurer to inform the registering authority when cover note is not followed by a policy. As the insurance company did not lead any evidence to show under what circumstances the endorsement of cancellation is to be found on the cover note it was not correct for the lower court to assume that the Cover note must be deemed to be cancelled. No evidence was lead by the insurance company to cast doubt on the evidence of the cover note and the thereforee it must be assumed that the cover note was validly issued and did cover the insurance of the vehicle in question.

(7) The next question is as to whether the cover note covered the vehicle on the date of the accident i.e. 20.1.1966. In this cover note it is also printed that the risk is covered in terms of the company's form of third party liability for the period between the dates specified in the schedule unles the cover note be terminated by the company by a notice in writing in which case the insurance will thereupon cease. No notice in writing has been proved by the company to show that the cover note was terminated. The dates mentioned in the schedule for which the risk was to be covered is 28.12.1963 to 27.7.1964, In column 4 it is mentioned that it is valid for 15 days from the date of commencement of risk in respect of any entry in this column, Prima faice thereforee the cover note would be valid for 15 days from 28.12.63 and would not cover the period on 20-1-64, the date on which the accident took place. It is here that the provisions of the Act give protection to third party who would by the nature of thing be not in a position to give the various details about the cover note and the policy which would be within the knowledge of the insurer. It is for this reason that Section 95 (4A) cast duty on the insurer to inform the registering authority if the cover note is not followed by policy of insurance. Section 96 (2) (a) permits the insurer to defend the action on the ground that the policy was cancelled by mutual consent, or that either before or not latter than 14 days after the happening of the accident the insurer has commenced proceedings for cancellation of of the certificate after compliance with the provisions of Section 105 which also requires notifying the registering authority within 7 days of such cancellation. None of these requirements of Section 95(4A) or Section 105 have been proved to have been complied by the insurance company.7. Section 103 provides that where the insured is issued a certificate of insurance then if and so long as the policy described in the certificate has not been issued by the insurer to the insured, the insurer shall, as between himself and any other person except the insured, be deemed to have issued to the insured person a policy of insurance conforming in all respects with the description and particulars stated in such certificate Now the schedule for the period of which the risk was to be covered as per the cover note is 28-12-1963 to 27-7-1964. The effect of section 103 is that when it is proved that certificate of insurance has been issued it shall be deemed that a policy of insurance of the same term has also been issued. The presumption thereforee would initially be against the insurance company once it is proved that a certificate of insurance which includes the cover note has been issued by it ; it will then be for the insurance company to show that though the cover note was issued, it was not followed by the policy of insurance or that the same was cancelled in accordance with the provisions of the Act. The trial court has taken the view that as the cover note was only valid for 15 days it had expired earlier to the date of the accident. In this regard it has however ignored the the provision of section 103 which deems that a policy of insurance has been issued even if it is once shown that a certificate of insurance has been issued by the insurer. If that deeming provisions is applied as it has to result would be that it will have to be held that the policy of insurance was issued covering the period from 21-12-1963 to 27-7-1964 (which would cover the date of accident that is 20-1-1964) unless of course the insurance company proved that the paid policy was never issued or was cancelled under the Act after complying with section 105 of the Act. The view, thereforee, of the trial court that because the cover note was issued for 15 days period, it must be held that the vehicle was not covered by the insurance, cannot be up-held in view of the various provisions like Section 95 (4A), 96, 103 and 105 of the Act as mentioned above. The view that I am taking has also been taken by Kapur, J. in Bhagwan Dass V. Shrf Kasturi Lal etc. (F.A.O. 50 of 1967) decided on 18-20-1973. 1974. R.L.R. 18

(8) I would as a consequence allow the appeal to the extent that the award given by the tribunal will also be enforceable against respondent No. 3, in addition to respondents 1 and 2. There will be no order as to costs.


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