Suneeta Agrawal vs National Insurance Co. and Others

M.C. Sharma, J—The applications under Section 5 of the Limitation Act are allowed for the reasons mentioned therein and delay in filing the cross objections is hereby condoned. With the consent of learned counsel for the parties, the arguments have been heard and since all these appeals and cross objections relate to one incident and arise out of the common judgment and award passed by the Tribunal, they are being decided finally at this stage, by this common judgment.

Brief facts of the case are that on 19.4.2000, Manohar Jasnani, Ravi @ Ravindra Agarwal and Anil Agarwal were going from Jaipur to Tonk in Car No. RJ 14 C 4096. No sooner did they reach 4 kms. ahead of Motuka Baroni Police Station towards Tonk, suddenly a truck No. RJ 02 G 2884 being driven by its driver rashly and negligently hit the car, as a result of which Ravi Agarwal and Manohar Lal Jasnani Succumbed to injuries and Anil Agarwal sustained grievous injuries and Maruti Car was also severely damaged.

Thereafter the claim petitions were filed by the legal representatives of deceased Manohar Lal Jasnani and Ravi Agarwal, and Anil Agarwal himself on account of injuries sustained by him and one claim petition was filed on account of damage of Maruti Car in the said accident. Notices were issued; reply was filed; certain issues were framed and after hearing all the parties, the learned Tribunal passed the judgment and award dated 7th August, 2010, whereby it decreed Rs. 6,55,000/- as compensation in claim petition No. 229/2004 (Smt. Meena Jasnani & Ors. vs. M/s. R.K. Minerals & Ors.); Rs. 7,22,000/- as compensation in claim petition No. 230/2004 (Smt. Sunita Agarwal & Ors. vs. M/s. R.K. Minerals & Ors.), Rs. 1,00,000/- as compensation in claim petition No. 232/2004 (Anil Kumar Agarwal vs. M/s. R.K. Minerals & Ors.); and Rs. 10,000/- as compensation in claim petition No. 231/2004 (Smt. Sunita Agarwal vs. M/s. R.K. Minerals & Ors.). Being aggrieved by the aforesaid judgment and award, the Insurance Co. filed Civil Misc. Appeals before this Court and this Court vide judgment dated 18.8.2011 while setting aside the impugned judgment and award passed by the Tribunal, remanded the matter to the Tribunal with the direction to decide the matter afresh qua issues No. 3 & 4. Pursuant thereto, the Tribunal has passed the impugned judgment and award dated 3.9.2012, decreeing an amount of Rs. 8,17,610/- as compensation in favour of claimants Meena Jasnani & Ors. in claim petition No. 229/2004; Rs. 9,15,477/- as compensation in favour of claimants Sunita Agarwal and Others in claim petition No. 230/2000; Rs. 10,000/- as compensation in favour of claimant Sunita Agarwal in claim petition No. 231/2004 on account of damage of Maruti Car; and Rs. 4,54,332/- as compensation in favour of claimant Anil Kumar in claim petition No. 232/2004 on account of injuries sustained by him in the said accident, but the liability has been fastened upon the Insurance Co. to pay the quantum of compensation to the claimants and thereafter to recover the same from the owner of the offending vehicle.

Being dissatisfied by the aforesaid judgment and award passed by the Tribunal, four appeals have been filed by the claimants for enhancement of compensation; and being aggrieved by the aforesaid judgment and award, four appeals have been filed by the Insurance Co. and three cross objections have been filed by the non claimant-cross objector.

Learned counsel for the Insurance Co. has contended that in the Motor Vehicles Act there is a provision that if the Insurance Policy is obtained on account of non-disclosure of a material fact or by representation of a fact which is false in some material particulars, the policy would be treated to be void and Insurer would not be liable under such policy. In the instant case, the insurance of the truck in question was obtained by Rais Khan by concealing the material facts and by giving false statement, as such in view of the provisions of Section 149(2) read with Section 149(4) of the MV Act, 1988, the Insurance Co. is not liable to pay the compensation. He has further contended that in the instant case, Rais Khan was not the owner of the offending vehicle, as such he had not insurable interest in the truck in question, resultantly no proposal could have been given by Rais Khan for getting the insurance done of the said vehicle nor the insurance could have been done in his name, whereas while obtaining the cover note, it was contended by Rais Khan that aforesaid vehicle Truck No. RJ 02/G 2884 had been purchased by him from M/s. R.G. Minerals (Pvt.) Limited. He has further contended that registered owner of vehicle Truck No. RJ 02/G 2884 submitted two applications before the Tribunal, wherein it was mentioned that Naimuddin filed the reply on behalf of R.G. Minerals (Pvt.) Limited, whereas Naimuddin had no concerned whatsoever with R.G. Minerals (Pvt.) Ltd. and the vehicle in question had been purchased by Naimuddin from R.G. Minerals (Pvt.) Ltd. on 25.4.2000. In this view of the matter, on the date of commencement of the Insurance or the date of accident Naimuddin and/or Rais Khan were having no ownership over the truck in question and thus, they could not have submitted the proposal nor the insurance could have been done in their favour. He has further contended that despite the fact that Rais Khan was not having the amount equivalent to premium in his account, despite that he issued the cheque and obtained the cover note keeping the Insurance Co. in dark. He has further contended that the Tribunal has not taken into consideration the provisions of Insurance Regulatory and Development Authority (Manner of Receipt of Premium) Regulations. He has further contended that the amount awarded under the head of future prospects is excessive in nature and the Tribunal has also wrongly applied the multiplier. He has further contended that Sunita Agarwal has utterly failed to prove her ownership over the Maruti Car No. RJ 14C 4096 and that the said car was damaged in the alleged accident, but despite that the Tribunal has awarded the compensation. Hence, the impugned judgment and award passed by the Tribunal should be quashed and set-aside.

On the other hand, learned counsel for the claimants has contended that the Tribunal has not properly taken into consideration the oral as well as documentary evidence available on record and awarded a very meager amount of compensation. The income of the deceased assessed by the Tribunal is on the lower side. He has further contended that the tribunal has not applied the proper multiplier and awarded less amount towards the love and affection. Hence, the impugned judgment and award passed by the learned Tribunal deserves to be modified.

With regard to maintainability of cross objections, learned counsel for the cross objector (s) has contended that for filing the cross objections it is not required that the appeal should be admitted. Provisions of Order 41 Rule 22 contemplates that upon hearing, respondent may object to decree or part of decree as if he had preferred a separate appeal. Provisions of sub-rule 1 of Rule 22 provides that any respondent may prefer cross objections to a decree which he could have taken by way of appeal, provided he has filed such objections in the appellate court within one month from the date of service upon him or his pleader for notice of the day fixed for hearing the appeal or within such further time as the appellate court may deem fit to allow. He has further contended that in view of the provisions of Order 41 Rule 11, 12 and 14, the cross objections filed by PG Minerals (Pvt.) Ltd. are maintainable after it had received the notice for hearing the appeal. He had further contended that the Tribunal while giving direction to recover the amount from the owner of the offending vehicle has committed error. From the record, it was proved that the cover note in this case was issued by the agent of the Insurance Co. on 16.4.2000 covering the risk of the vehicle w.e.f. 17.4.2000 to 16.4.2001. At the time of issuance of this cover note, physical verification of the vehicle was also done. Unfortunately, the cheque given for the payment of premium was dishonored and the Insurance Co. had got information of the same on 20.4.2000. On the same day, premium in cash was paid to the Insurance Company and admittedly for the same proposal form, the vehicle was got insured. That means, it was insured for the period from 17.4.2000 to 16.4.2001. Later-on, the Insurance Co. by manipulation, had over-written the proposal form and the proposal dates was changed from 21.4.2000 to 20.4.2001. In these circumstances, the only inference which could have been drawn is that just to avoid the liability, the Insurance Co. had over written this document and prepared a fresh cover not in its record, which was produced as Ex. A/8 with period of insurance as 21.4.2000 to 20.4.2001. In fact, the vehicle was insured w.e.f. 17.4.2000 to 16.4.2001 and was covering the date of accident and neither the Insurance Co. can be exonerated from the liability of paying compensation nor it can be given a right of recovery against the respondent cross objector. He has further contended that it was the duty of the Insurance Co. to prove that the cover note/policy which was issued on 16.4.2000 has ever been cancelled by it or the intimation of the same was given to the respondent cross objector. He has further contended that Ex. A/6 and A/6A make it quite clear that this so called cancellation letter had been written on 20.4.2000, but it had not been sent on the address of the respondent cross objector. In these circumstances, it was not a case that the cover note issued on 16.4.2000 was cancelled and as such the Insurance Co. could not have been exonerated from the liability of paying compensation and nor it could have been given a right of recovery the respondent cross objector. The vehicle involved in the case was insured on the date of accident and as such the finding of the Tribunal, by which the Insurance Company has been given a right of recovery against the respondent cross objector, deserves to be quashed and set-aside.

I have heard learned counsel for the parties and carefully perused the relevant material on record.

Looking to the facts and circumstances of the case, the Tribunal is found to have dealt with each and every aspect of the matter ad-longum and rightly decided all the issues. I am in agreement with the findings arrived at by the learned Tribunal while passing the impugned judgment and award, the relevant part of which is reproduced as under:

I am in further agreement with the findings arrived at by the learned Tribunal in its impugned judgment and award, the relevant part of which is reproduced as under:-

In this view of the matter, I do not find any ground to take a different view than that of the view taken by the learned Tribunal. Hence, all the aforesaid appeals and cross objections, being without any substance, are hereby dismissed after confirming the judgment and award passed by the Tribunal.