Bombay High Court
United India Insurance Company ... vs Jagan Andres Misar And Others on 4 April, 2017
Bench: V.K. Jadhav
1
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 77 OF 1999
United India Insurance Co. Ltd.,
Aurangabad. ... APPELLANT
(Original Respondent No.3)
V E R S U S
1. Jagan s/o Andras Misar,
Age : 45 years, Occ : Labour,
R/o. Samtanagar, Aurangabad.
2. Smt. Rukmanibai w/o Jagan Misar,
Age: 40 years, Occ : Labour,
R/o. As above.
3. Shaikh Ayub s/o Shaikh Karim, (Respondent No.3 deleted
Age : 25 years, Occ : Truck driver as per Court order
R/o : Baijipura, Aurangabad and at dated 25/9/2009.)
present Satarbhai's wada, Samtanagar,
Aurangabad.
4. Balkrishna s/o Dattatraya Khisiti,
Age: Major, Occ : Business,
R/o : 'Jai', 5-11-7, Pensionpura,
Nutan Colony, Aurangabad.
L.Rs.
4/A. Deelip S/o Balkrishna Khisti,
Age: 38 years, Occ : Business,
R/o : Jay, Plot No.16, Pratap Nagar,
Darga Road, Aurangabad. ... RESPONDENTS
(Ori. Claimants,Ori. Resp. No.1 & 2)
...
Mr. D. V. Soman, Advocate for Appellant.
Mr. G. K. Salve, Advocate for Respondent No.1
...
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902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
WITH
CROSS APPEAL NO. 1 OF 2016
IN
FIRST APPEAL NO.:77 OF 1999
1. Jagan s/o Andres Misal,
Age : 65 years, Occ : Nil,
R/o. Tisgaon, Post. Valadgaon,
Dist. Aurangabad.
2. Smt. Rukminibai w/o Jagan Misal,
Age: 60 years, Occ : Household,
R/o. As above. ... APPELLANTS
(Original Claimants)
V E R S U S
1. United India Insurance Co. Ltd.,
Through Divisional Manager,
Osmanpura, Aurangabad.
2. Shaikh Ayub s/o Shaikh Karim,
Age : 38 years, Occ : Truck Driver,
R/o : Baijipura, Aurangabad,
At present Sattarbhai's wada,
Samtanagar, Aurangabad.
3. Balkrishna s/o Dattatraya Khisti,
Age: Major, Occ : Business,
R/o : 'Jay', 5-11-7, Pensionpura,
Nutan Colony, Aurangabad.
L.Rs.
3/A. Deelip S/o Balkrishna Khisti,
Age: 38 years, Occ : Business,
R/o : Jay, Plot No.16, Pratap Nagar,
Darga Road, Aurangabad. ... RESPONDENTS
(No.1 Original Appellant)
(Nos.2 & 3 Original Respondents)
...
Mr. G. K. Salve, Advocate for Appellants.
Mr. D. V. Soman, Advocate for Respondent No.1.
Mr. B. M. Waghmare, Advocate for Respondent No.2.
...
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902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
CORAM : V. K. JADHAV, J.
DATE : 04th April, 2017.
ORAL JUDGMENT:
. Being aggrieved by the judgment and award passed by
the learned Member of the Motor Accident Claims Tribunal,
Aurangabad dated 23rd September, 1998 in MACP No.179 of 1993,
original Respondent No.3 / Insurer has preferred First Appeal No.77
of 1999 and the original Claimants preferred cross-appeal bearing
Cross Appeal No.1 of 2016 to the extent of quantum of compensation.
2 Brief facts giving rise to these two appeals are as follows:
i) On 28th April, 1993 at about 07:00 am, near Iron
bridge on Aurangabad-Nagar road, Respondent /
driver had driven the vehicle truck bearing
registration No.MTS-6085 in a rash and negligent
manner and had given a dash to the tanker, which
was proceeding ahead by the left side of the road.
In consequence of which, deceased Santosh,
who was travelling in the said truck as cleaner,
had fallen down from the truck cabin and
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
sustained injuries on his head, hands, left leg and
other parts of the body. He was immediately
shifted to Ghati Hospital, Aurangabad in an
unconscious condition and he succumbed to the
injuries on the next day while under treatment.
ii) The Claimants / legal representatives of
deceased Santosh approached to the Motor
Accident Claims Tribunal by filing MACP No.179
of 1993 for grant of compensation under the
various heads. It has been contended in the
claim petition that deceased Santosh was
employed as a cleaner by the Respondent /
owner on the said truck and the accident had
taken place on account of rash and negligent
driving on the part of Respondent / driver of the
truck. It has been contended that deceased
Santosh was the earning member of the family
and the Claimants were depending upon his
earnings. The Claimants have thus, claimed the
compensation of Rs.2,00,000/- with interest.
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
iii) Respondent / driver had not filed his written
statement and therefore, hearing of the claim
petition was ordered to proceed without his
written statement.
iv) Respondent / owner had filed his written
statement at Exhibit - 19. It has been contended
that the road where the accident had taken place
was plain and there was no traffic on the road at
the time of the accident. It has been contended
that the driver of the said tanker had suddenly
stopped his vehicle without giving any signal to
the truck and as such, the driver of the truck could
not control his vehicle and dashed against the
backside of said tanker. It has been contended
that said truck is insured with Respondent /
Insurer on the date of accident for the period of
20th April, 1992 to 29th April, 1993 and as such,
covers the date of accident. Thus, Respondent /
Insurer is liable to pay the compensation. It has
been contended that the owner, driver and the
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
insurance company of the said tanker are the
necessary parties to the claim petition and the
claim petition is bad for non-joinder of necessary
parties. The concerned P.S. has registered the
crime against the truck driver alone even though
the drivers of both the vehicles are responsible for
the accident. It has been contended that
deceased Santosh was earning Rs.70/- per week
by working as a cleaner on the truck. It has been
contended that after the accident, Respondent /
owner has given information to the Insurer about
the accident and involvement of the vehicle in the
said accident. However, Respondent / Insurer
has failed to contest the claim on behalf of them
on the ground that the policy came to be expired
on 19th April, 1993 and inadvertently, the incorrect
period has been mentioned in the policy
exceeding one year. It has been also contended
that the said vehicle also met with another
accident giving rise to MACP No.391 of 1992
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
wherein insurance company has not raised the
said defence nor rectified the mistake appearing
in the policy about the period of risk cover under
the policy. Even thereafter, the Respondent /
Insurer has renewed the policy from 29th April,
1993. As such there is no break in policy.
v) The Insurer has also strongly resisted the claim
petition by filing the written statement. It has
been contended that the Claimants ought to have
filed the claim petition under the Workmen's
Compensation Act and the Tribunal has no
jurisdiction to try and decide the matter. It has
been also contended that the owner, driver and
the insurer of the said tanker were not impleaded
as party to the claim petition and therefore, the
claim petition suffers from non-joinder of
necessary parties. It has been contended that the
accident had taken place on account of the
negligence on the part of the drivers of both the
vehicles. The Insurer has raised a specific plea
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
that the contract of insurance came to an end on
19th April, 1993 and the accident had taken place
on 28th April, 1993. It has been contended that
the proposal was given by the insured for a period
of one year only and as per the said proposal, the
period covering the risk is limited for a period of
one year i.e. from 20th April, 1992 to 19th April,
1993. It has been contended that, inadvertently,
the policy period is mentioned as 20th April, 1992
to 29th April, 1993. Thus, the risk is not covered
under the contract of insurance.
3 The learned counsel for the Insurer submits that the driver
of the tanker had suddenly applied the brakes without giving any
signal to the vehicles following his vehicle and as such, the driver of
the tanker was alone responsible for the accident. The learned
counsel submits that at the most the drivers of both the vehicles are
responsible for the accident in composite manner. The learned
counsel submits that the Claimants ought to have filed the claim
petition under the provisions of the Workmen's Compensation Act and
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
as such, the Tribunal was not having jurisdiction to entertain and
decide the claim petition. The learned counsel submits that the
Claimants had failed to implead the owner, driver and insurer of the
tanker in the claim petition and as such, the claim petition is bad for
non-joinder of necessary parties. The learned counsel submits that
the period of insurance is only of one year and inadvertently, in the
certificate of insurance, the period exceeding one year has been
shown. As per the proposal submitted by the insured and the
premium accepted for one year, the period of policy expired on 19th
April, 1993. The Insurer has also examined its employee Mr. Bhimrao
Bhange to substantiate its defence. However, the learned Member of
the Tribunal has not considered the same in its proper perspective.
The learned counsel in the alternate submits that the Tribunal has
awarded the just and reasonable compensation. As per the income of
the deceased, the Respondent / owner has specifically pleaded in his
written statement that he was paying Rs.70/- per week to deceased
Santosh for working as a cleaner on the said truck. The learned
counsel submits that in terms of the judgment and award passed by
the Tribunal, the Insurer has deposited the entire amount before this
Court and the same has been withdrawn by the Claimants. There is
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
no substance in the cross-appeal preferred by the Claimants for
enhancement in the compensation.
4 The learned counsel appearing for Respondent / owner
submits that even though the said vehicle truck met with an accident
in the month of June 1992, the Insurer has not bothered to rectify the
mistake if at all committed in mentioning the period of insurance of
certificate. The learned counsel submits that only after the accident,
which is the subject matter of present appeal, the Insurer woke up and
taken a stand like this. The learned counsel submits that the Insurer
has never communicated to the Respondent / owner about the period
of insurance ending on 19th April, 1993 and on the contrary has
renewed his policy with effect from 29th April, 1993. The learned
Member of the Tribunal has therefore, rightly fastened the liability on
the Insurer. The learned counsel submits that Respondent / owner
was paying Rs.70/- per week to deceased Santosh and as such, the
Tribunal has awarded just and reasonable compensation. No
interference is required in the impugned judgment and award.
5 On perusal of the pleadings, evidence and the judgment
and award passed by the Tribunal, it appears that after the accident,
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
the crime came to be registered against the Respondent / driver of the
truck alone. On perusal of the contents of spot Panchanama Exhibit -
43, it appears that there is a road divider and near about 22 feet of tar
road in width left from the road divider. It has been specifically noted
in the spot Panchanama that there was a speed breaker on the spot.
It is thus, clear that the said tanker was proceeding from the extreme
left side of the road and near about 22 feet of tar road was available
for the truck to overtake the said tanker. It was for the driver of the
truck to keep safe distance from the vehicle proceeding ahead. There
may be more than one reason for the driver of the tanker to apply the
brakes and stop his vehicle, which was proceeding from the extreme
left side of the road. The learned Member of the Tribunal has
considered the entire evidence on record particularly the contents of
spot Panchanama Exhibit - 43 and rightly held that the accident had
taken place on account of rash and negligent driving of the driver of
truck. It is well settled that the Claimant can proceed against any of
the joint tort-feasor and in case the Tribunal arrive at a finding of
contributory negligence on the part of the driver of the vehicle not
impleaded as party to the claim petition, in that event the Claimant
looses his right to claim the compensation to that extent. I do not
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
think that the claim petition is bad for non-joinder of necessary party.
6 In view of the provisions of Section 167 of the Motor
Vehicles Act, 1988, where the death of, or bodily injury to, any person
gives rise to a claim for compensation under this Act and also under
the Workmen's Compensation Act, 1923, the person entitled to
compensation may without prejudice to the provisions of Chapter X
claim such compensation under either of those Acts but not under
both. In view of the provisions of Section 167, the Claimants have
exercised the option to approach the Motor Accident Claims Tribunal
and accordingly the Tribunal gets the jurisdiction to entertain the claim
petition and decide the same. I do not find any substance in this
ground raised on behalf of the Insurer.
7 So far as the insurance coverage is concerned, the
learned counsel for Insurer has vehemently submitted that the policy
is issued only for the period of one year and considering the
commencement of the policy i.e. on 20th April, 1992, the policy expires
on 19th April, 1993. The accident had taken place on 28 th April, 1993
and as such, the insurance policy does not cover the risk and, the
Insurer is not liable to pay the compensation. The learned counsel
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
submits that inadvertently, the period exceeding one year has been
mentioned in the certificate of insurance. The Insurer has examined
Mr. Bhimrao Bhange, Assistant Administrative Officer of the
Company. According to him, the policy came to be issued for the
period of one year and the premium was also taken for one year. The
effective period of the policy is between 20th April, 1992 to 19th April,
1993. However, the dates 20th April, 1992 to 29th April, 1993 came to
be typed erroneously on the policy document. He has also deposed
that a proposal letter was received from the insured / owner of the
truck and on the basis of the said proposal letter, the advise came to
be issued. Even on the proposal letter the dates are mentioned as
20th April, 1992 to 19th April, 1993. In cross-examination he has
shown ignorance about the fact that the same vehicle met with an
accident on 9th June, 1992 and his company had defended the owner
in the claim arises out of the said accident. He has however, admitted
that the motor accident report received from the owner consisting the
date of validity of the insurance policy. In the claim form, the date is
mentioned by the owner as per the policy i.e. 20 th April, 1992 to 29th
April, 1993. He has further admitted in cross-examination that at no
point of time, the information was given to the insured that there was a
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
typographical error in stating the date of expiry of the policy. He has
further admitted in his cross-examination that the Company came to
know about the typographical error when the second claim was filed.
8 On careful perusal of the certificate of insurance Exhibit -
61/A, the period of insurance is mentioned as 20 th April, 1992 to 29th
April, 1993. In view of the provisions of Section 156 of the Motor
Vehicles Act, when an insurer has issued a certificate of insurance in
respect of a contract of insurance between the insurer and the insured
person, 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. In terms of clause (b) of Section 156 of the Motor Vehicles
Act, if the insurer has issued to the insured the policy described in the
certificate, but the actual terms of the policy are less favourable to
persons claiming under or by virtue of the policy against the insurer
either directly or through the insured than the particulars of the policy
as stated in the certificate, the policy shall, as between the insurer and
any other person except the insured, be deemed to be in terms
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
conforming in all respects with the particulars stated in the said
certificate. Section 156 of the Motor Vehicles Act reads as under:
"156. Effect of certificate of insurance.--When an
insurer has issued a certificate of insurance in respect
of a contract of insurance between the insurer and the
insured person, then--
(a) 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; and
(b) if the insurer has issued to the insured the policy
described in the certificate, but the actual terms
of the policy are less favourable to persons
claiming under or by virtue of the policy against
the insurer either directly or through the insured
than the particulars of the policy as stated in the
certificate, the policy shall, as between the
insurer and any other person except the
insured, be deemed to be in terms conforming in
all respects with the particulars stated in the
said certificate."
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
9 In view of the provisions above and the fact that though
the Insurer had an opportunity to rectify the certificate of insurance or
the policy of insurance when the same vehicle met with an accident in
the month of June 1992, failing so, cannot raise the plea to the effect
that due to typographical error the period is inadvertently shown in the
certificate of insurance exceeding one year.
10 In the case of Bomanji Rustomji Ginwala Vs. Ibrahim
Vali Master and others, reported in, 1982 A.C.J. 380, the Gujarat
High Court has held that if there is an error or omission in the policy
on the part of the Insurer, the benefit should go to the insured. In the
instant case, the Respondent / owner had no notice about the
typographical error in mentioning the date of expiry on the certificate
of insurance. Witness Mr. Bhimrao Bhange, Assistant Administrative
Officer of the Company has also admitted the same in his cross-
examination. Under these circumstances, the Insurer cannot escape
from the liability to pay the compensation jointly with Respondent /
owner.
11 So far as the quantum of compensation is concerned, the
learned Member of the Tribunal has considered the income of
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
deceased Santosh at Rs.300/- per month. The learned Member of
the Tribunal has not considered the income of deceased Santosh as
claimed by the Claimants only on the ground that the Claimants failed
to substantiate their contentions by producing on record the salary
certificate. Admittedly, deceased Santosh was working as a cleaner
on the vehicle involved in the accident. Respondent / owner has also
not disputed the same. It is difficult to expect from the Claimants to
obtain the salary certificate from the owner and produce it on record.
In such cases, it is unlikely on the part of the owner to maintain the
record about the employment of cleaner working on his truck and to
issue salary certificate as and when demanded by the Claimants. The
learned Member of the Tribunal has given weightage to the pleadings
of the Respondent / owner. Respondent / owner has not examined
himself on oath before the Tribunal. The learned Member of the
Tribunal has erred in relying upon the pleadings of the Respondent /
owner in respect of the salary being paid to deceased Santosh. The
learned Member of the Tribunal has not given thought that if Rs.70/-
per week is considered as wages being paid to the deceased,
deceased Santosh was getting Rs.10/- per day. Even though the
accident had taken place way back in the year 1993, it is difficult to
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
believe that deceased Santosh was getting Rs.10/- per day. Even if
minimum wages in that year are considered, deceased Santosh must
be getting Rs.30/- per day corresponds to Rs.900/- per month.
Deceased Santosh was unmarried son. However, the Claimants were
depending on his income. Claimant Nos.1 and 2 are the aged
parents. In view of the ratio laid down by the Supreme Court in the
case of Sarla Verma (Smt) and others Vs. Delhi Transport
Corporation and another, reported in, (2009) 6 Supreme Court
Cases 121, 50% of his income is required to be deducted towards his
personal and living expenses. If the average age of the Claimants is
considered, the relevant multiplier would be 14. Thus, the Claimants
are entitled for the compensation of Rs.75,600/- under the head of
loss of future income (450 x 12 x 14). The learned Member of the
Tribunal has not awarded any amount for funeral expenses, loss of
estate and loss of love and affection. The Claimants are entitled for
an amount of Rs.15,000/- for funeral expenses, Rs.10,000/- for loss of
estate and Rs.10,000/- each to the Claimants for loss of love and
affection. Thus, the break up of compensation under the heads as
discussed above can be broadly categorized as under:
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
Sr. Particulars of the head Amount in
No. Rupees
1) Towards loss of future income
(as against Rs.37,200/- awarded by Tribunal) Rs.75,600/-
2) Towards general expenses including mental
agony, shock etc. (as awarded by the Tribunal) Rs.30,000/-
3) Towards funeral expenses Rs.15,000/-
4) Towards loss of estate Rs.10,000/-
5) Towards loss of love and affection
(Rs.10,000/- for each Claimant) Rs.20,000/-
Total = Rs.1,50,600/-
12 The Claimants are entitled for the total amount of
compensation as worked out hereinbefore. The Claimants have filed
cross-appeal belatedly and this Court has condoned the said delay on
condition that the Claimants would not be entitled to claim the interest
of the said period of delay, which is condoned by the Court. The
Claimants are entitled for the compensation with interest at the rate as
determined by the Tribunal excluding the said period for which the
delay sought to be condoned. Hence, the following order:
O R D E R
I. First Appeal No.77 of 1999 (United India Insurance
Company Ltd. Aurangabad Vs. Jagan Andres Misar
and others), is hereby dismissed with costs.
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
II. Cross Appeal No.1 of 2016 in First Appeal No.77 of
1999 (Jagan Andres Misal and another Vs. United
India Insurance Co. Ltd. and others), is partly
allowed with proportionate costs.
III. The judgment and award passed by the learned
Member of the Motor Accident Claims Tribunal,
Aurangabad dated 23rd September, 1998 in MACP
No.179 of 1993, is hereby modified in the following
manner:
"Respondent Nos.1 to 3 are jointly and
severally liable to pay an amount of
Rs.1,50,600/- (Rupees One Lac Fifty
Thousand and Six-Hundred only) as
compensation inclusive of NFL amount with
interest at the rate of 12% per annum from
the date of application till realization of the
entire amount. However, the Claimants are
not entitled for the interest of the period of
delay caused in filing the cross-appeal.
IV. Rest of the judgment and award passed by the
Tribunal stands confirmed.
902 F.A. 77 OF 1999 & F.A. 1 OF 2016.odt
V. Award be drawn up as per the above modification.
VI. Needless to say that if any amount is paid and
withdrawn by the Claimants as per the judgment
and award passed by the Tribunal, the same shall
be the part of the modified award.
VII. Both the appeals are accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
