G.M. Lodha, J.
1. These three appeals Nos. 3 of 1983, Smt. Santosh Rani and Anr. v. Mst. Sheela Rani 12 of 1983, Smt. Sheela Rani and Anr. v. Smt. Santosh Rani and Ors. and 25 of 1983, The New India Assurance Co. Ltd. v. Smt. Sheela Rani and Ors. relate to various challenges either by way of prayer for increase of the compensation or absolving from liability of payment by various parties to the Motor Accident Claims Tribunal, Jaipur's award in case No. 291 of 1977.
2. All these appeals are directed against the award dated 18th October, 1982 and have been filed under Section 110-D of the Motor Vehicles Act.
3. Before I proceed to discuss the various points involved in all the three appeals, let me summarise the nature of the prayer in all the appeals individually.
4. M/s. New India Assurance Company Ltd. has filed Appeal No. 25 of 1983 with the following prayer:
It is, therefore prayed that the Hon'ble Court may kindly be pleased to accept this appeal, and to quash and set aside the award passed against the appellant dated 18-10-1982 of the Motor Accidents Claims Tribunal, Jaipur in case No. 291 of 1977 or such orders as this Hon'ble Court deems fit and proper in the circumstances of the case may kindly be passed.
This Hon'ble Court may be further pleased to award costs to the appellant.
5. Smt. Sheela Rani and Heera minor son of Shri Moti Lal Jain in appeal No. 12 of 1983 have prayed as under:
It is therefore humbly prayed -
(i) That your Lordships would be graciously pleased to admit and accept this appeal.
(ii) That the record of the case be called for and an award for a sum of Rs. 2,50,000/- be passed in favour of the appellants.
(iii) That the interest on the award from the date of filing the claim petition i.e. 3-11-77 be also allowed to the humble applicant-appellants, and
Any other order, direction or relief, which your Lordships deem proper, in the circumstances of the case, be also granted in favour of the appellants along with the costs throughout.
6. Smt. Santosh Rani and Suresh Chandra defendant-appellants have made the following prayer:
It is therefore prayed that the appeal of the appellants may kindly be accepted and the award and judgment dated 18th October, 1982 passed by the Tribunal be quashed and set aside and the claim petition submitted by the Claimant-respondents No. 1 to 3 may kindly be dismissed with costs in toto.
Any other appropriate order which may be considered just and proper in the facts and circumstances of the case may kindly be passed.
7. In bird's eye view the claimants case is that the deceased Moti Lal while coming from the side of Malviya Regional Engineering College, Jaipur on his Suyega No. RSG 2597 towards Jawahar Lal Nehru Marg, Jaipur on 10th May, 1977 at about 9.00 P.M. was knock down by Car No. RSM 9701. According to the claim petition the car struck the Suyega near Mahavir Garden. Moti Lal received injuries and his Suyega Auto Cycle was also damaged. After this accident the driver of the car ran away. Moti Lal was taken up to the S.M.S. Hospital by one Prakash Chandra Katta, At about 12 in the mid-night Moti Lal was declared died in the hospital.
8. The registered owner of the car was Shri Dwarka Prasad and the number of the car was RSM 9701. Dwarka Prasad defendant No. 3 in the claim petition challenged this and submitted that the owner of the Car was Smt. Santosh Rani. Smt. Santosh Rani respondent No. 3 in the claim petition purchased it from Shri Dwarka Prasad.
9. The New India Assurance Company in support of their reply to the claim petition submitted that the insurer party did not give any information about the accident. It then states that the car was sold on 18 June, 1976 to Smt. Santosh Rani and this transfer was done according to law on 24th June, 1976 by the Regional Transport Authority, Jaipur.
10. The claim Tribunal framed the following issues:
(Matter omitted as in Vernacular)
11. The Tribunal after recording evidence and hearing parties awarded Rs. 73,000/- separately and jointly in favour of the plaintiff-respondents Mst. Sheela Rani w/o L. Shri Moti Lal Jain, Heera son of late Moti Lal Jain (minor) and Smt. Mooli Devi mother of the deceased.
12. In these three appeals which have been argued today by Mr. H.M. Bhargava on behalf of M/s. New India Assurance Company Ltd., Mr. G.C. Mathur on behalf of Smt. Sheela and Heera wife and son of the deceased Moti Lal and Mr. G.K. Bhartiya on behalf of Smt. Mooli Devi on behalf of deceased Moti Lal's mother and Mr. R.P. Garg, on behalf of Smt. Santosh Rani and Shri Suresh Chandra car owners. All were fair enough not to challenge the finding so far as rashness and negligence of the driver concerned nor regarding accident has taken place and dealth having been caused on account of it. The challenges which have been made in this court now be summarised individually.
13. Mr. G.C. Mathur on behalf of the claimants has submitted that the compensation is inadequate and should be increased on the following grounds:
(a) the expectancy of life being 70 years the multiplier should have been 40 years atleast.
(b) the income and the benefits which the claimants would have got, which is treated as sum of dependency should have been much more and much less Rs. 300/- per month. Interest should have been allowed 10 percent from the date of the application till the date of realisation.
(c) loss of consortium and love and affection should have been allowed atleast Rs. 30,000/- in each head in view of the Full Bench judgment of this Court in R.S.R.T.C. v. Kastori Devi S.B. Civil Misc. Appeal No. 1 of 1984 decided on 17th October, 1985.
14. Mr. Bhartiya, counsel for the mother has stated that only 5,000/- has been allowed by the Tribunal it should have been increased.
15. So far as insurance company is concerned Mr. Bhargava submitted that there should have been no liability of the insurance company.
16. Mr. Garg on behalf of the owner of the car submitted that there should not be any liability of his clients.
17. I would take up the Insurance Company's appeal first. The accident took place on 10th May, 19/7 near Mahabir Garden, involving a Fiat Car No. RSM 9701 and a Auto Cycle No. RSM 2597 which the deceased Moti Lal was riding at the time of accident. Smt. Santosh Rani respondent No. 4 was owner of the car and Suresh Chand No 5 was driving the car. The respondent No. 6 Dwarka Prasad was shown as registered owner of the car at the time of accident and the New India Assurance Company the present appellant as being the insurer of the car in question. Smt. Mooli Devi was also made respondent before the Tribunal. The vehicle was transferred in the name of respondent No. 4 by the respondent No. 6 as per the allegation. The policy was issued in favour of Dwarka Prasad, respondent No. 6 valid from 16th June, 1976 to 15th June, 1977.
18. The Insurance Company's plea was that the appellant had no contractual liability to indeminity of non-petitioner No. 4 and the car was transferred in favour of the respondent No. 4 who was responsible and therefore the appellant has no insurable interest.
19. While deciding issues No. 3, 4, 7 and 8 the Tribunal decided these issues against the insurance company.
20. It was argued by Mr. Bhargava that Dwarka Prasad admitted in the statement and he has sold the car to Smt. Santosh Rani on 18th June, 1976 and it was registered in the record of the Regional Transport Authority on 24th June, 1976 and the accident took place on 10th May, 1977. It was argued that findings on issues No. 3, 7 and 8 are contradictory. It was argued that findings on issues No. 3, 7 and 8 are contradictory. It was argued that contract of insurance company is a contract of personal indeminity and insurer cannot transfer the policy without any express agreement to the insurance company. It was also argued that under Section 110-B of the Motor Vehicles Act has not been correctly interpreted. Mr. Bhargava pointed out that the letter dated 23rd June, 1976 and 30th June, 1976 were purported to be written by the transferee after lapse of many years were not free from doubt. Reliance was placed by Mr. Bhargava on the judgment of Full Bench of the Andhra Pradesh High Court in Madineni Kondaiah and Ors. v. Yaseen Fatima and Ors. 1986 ACJ 1. It may be mentioned that in this very judgment it has been held that when the policy has lapsed because of the sale of the vehicle, the insurance company cannot raise this defence, because it is not open under Section 96 Clause (2). Justice Raghuvir and Khan J. observed as under:
Insurance company cannot raise the defence that the policy had lapsed because of the sale of the vehicle; it cannot contend that accident happened due to the negligence on the part of the transferee arid insurance company not liable it cannot contend that its contract is with the transferor and it is not responsible to redeem the compensation payable by the transferee; because such defences are not contemplated under Section 96(2).
Same view was taken by Justice Kodandaramayya, which reads as under:
Insurance company cannot raise any defence not contemplated in Section 96(2). Though the defence that original policy was not issued by the company or it is a forged one is not barred under Section 96(2), but the defence of the insurer that the policy has lapsed in view of the transfer of vehicle touched the merits of the case and is barred under Section 96(2) of the Act.
The Apex court in British India General Insurance Co. Ltd. v. Captain Itbar Singh and Ors. : 1SCR168 expressly observed that this defence is not open to the insurance company. The Hon'ble Supreme Court observed as under:
Apart from the statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section (2) of Section 96 however gives him the right to be made a party to the suit and to defend it. The right therefore is created by statute and its conteat necessarily depends on the provisions of the statute. Sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it. When the grounds of defence have been specified, they cannot be added to. The only manner of avoiding liability provided for in Sub-section (2), it necessarily refers those defences. It cannot be said that in enacting Sub-section (2), the legislature was contemplating only those defences which were based on the conditions of the policy.
21. In view of the above, unless the insurance company approves it and has cancelled the policy its liability would continue inspite of the transfer.
22. Since the principles of law on this branch of insurance company's liability are very patent I would not like to deal them in details. It would be suffice to mention that the liability would subsist irrespective of the transfer, since it is an admitted that neither the policy was cancelled nor the premium for the period after alleged transfer was refunded.
23. Now coming to the appeal of Smt. Santosh Rani and Suresh Chandra. So far as the appeal of Santosh Rani is concerned, since the policy of insurance is unlimited the award passed by the Tribunal as modified by this court would fasten liability of the insurance company as a whole for the entire amount. Whatever amount has been paid to the claimants by the owner would be recovered from the insurance company and adjustment would be made accordingly.
24. Now coming to the case of claimant. I am inclined to accept the contention of Mr. Bhartiya that the amount of Rs. 5,000/- to the mother is too meagre. Mother is 60 years of age. It appears that the grand son and daughter-in-law are not maintaining her and therefore she has come to this court by engaging separate counsel. This amount is increased to 15,000/- and would be adjusted against the entire amount which would become payable to the other claimants.
25. Now coming to the claim as a whole, It is true that I have been more liberal in the application of the multiplier and mostly in cases of age group of 20 to 30 years the multiplier of 40 has been applied, taking the age of acceptancy as 70 years in these days of advanced medicines, science and technology developed amenities condition in the country.
26. However in the present case the deceased was an employee and according to Mr. Mathur his superannuation age was 60. As he died at the age of 30, normally he would have been in service till the age of 60 years.
27. It is true that some time after retirement retired person can find out some other vocation or work for having income. However, looking to the facts and circumstances of the case, I am of the opinion that the multiplier of 30 adopted by the Tribunal cannot be said to be wholly unjustified. However, so far as the income of the incumbent and the benefit the claimant would have got in dependency, I do feel that it should have been Rs. 300/- atleast for one who is earning Rs. 537 and there were fairly good chances of increase every year. Even otherwise, since he was maintaining his wife and son and mother, he would have certainly spent much and the dependents would have obtained benefit of 300 per month.
28. Thus, the amount of compensation should be increased and it should be 300x12x30=1,08,000/-. The Tribunal has not awarded any amount for loss of love and affection. According to the judgment of the Full Bench of this Court in Kastoori Devi's case, this amount should have been allowed and can be allowed, for a minor son, he lost the protection and love and affection of the father and for a young wife to be deprived of love and affection of the husband and so also for the mother. As per the prevalent condition of our society the loss is tremendous. Each one of them should be allowed Rs. 5,000/-and this amount is increased by Rs. 15,000/-. The Tribunal has already allowed loss of Auto Cycle as Rs. 1,000/-. This amount is already included in the award passed by the Tribunal. The amount of Rs. 15,000 should be included. The mother would get Rs. 15,000/- as a whole and rest would be divided into widow and son in equal proportion.
29. All the claimants would get interest at the rate of 12 per cent from the date of the application to the date of realisation, as per the decision of the Hon'ble Supreme Court. However this interest would not be allowed from the date of payment has been made or to that extent the amount deposited in the Tribunal.
30. The claimants would get the costs of these appeals from the non-appellants. Security by the owner Santosh Rani would stand discharged.