Smt. Asgari & Ors. v. Khursheed & Ors.

Smt. Asgari and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. S.K. Vij, Advocate for the appellants (in FAO No. 1019 of 1994) Sh. Anupam Sharma, Advocate for Sh. Vishal Goyal, Advocate for the appellant (in FAO No.497 of 1994) Sh. Paul S. Saini, Advocate for the New India Assurance Company Limited. ... K.C. Puri, J. (Oral) Vide this judgment, I intend to dispose of two appeals bearing FAO NO. 1019 of 1994, titled as Smt. Asgari and others vs. Khursheed and others and FAO No. 497 of 1994, titled as Hamida vs. Smt. Asgari and others. FAO No. 1019 of 1994 -2- Briefly stated, Smt. Asgari-widow, Baby Mubina, daughter and Sht. Chhutia-mother of Rohitan, filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation on account of death of Rohitan in a motor vehicular accident. It is pleaded that on 27.11.1991, at about 8.30 A.M. Rohitan was present at the bus stand of village Devla in order to board a bus. A truck No. HRL-1674 driven by Khursheed – respondent No.1 in a rash and negligent manner came there from the side of the hillocks and without blowing any horn, rammed into said Rohitan, who was standing on the kacha berm besides the road. On that account, Rohitan suffered multiple fractures and injuries and he succumbed to his injuries. Khursheed-respondent No.1 filed written statement, taking the plea that deceased was trying to climb up the truck from behind, without his knowledge and in that process he fell down and died due to the injuries. In their separate written statement, respondents No. 2 and 3, namely, Roshan and Hamida admitted that Hamida was owner of the vehicle but asserted that it was duly insured with the Insurance company i.e. New India Assurance Company Limited. The Insurance company filed written statement, in which it is stated that cover note/policy was obtained at 1.30 P.M. On

27.11.1991 and it was effective from that time and since the accident in question had already taken place at 8.30 A.M. on that date, as such the Insurance company is not liable. Following issues were framed:- FAO No. 1019 of 1994 -3-

1. Whether the accident in question took place on account of the rash and negligent driving of Khursheed (respondent no.1) driver of truck No. HRL-1674? OPP

2. Whether Rohitan son of Hussaina died in this road vehicular accident and the petitioners are entitled to claim compensation on that account, if so to which extent and from whom? OPP

3. Whether the insured violated the terms and conditions of the Insurance policy? OPR

4. Relief. The learned Tribunal, returned the finding on issues No.1 and 2 in favour of the claimants. Issue No. 3 was decided against the owner of the vehicle by holding that Insurance policy was obtained after the accident. Learned Tribunal assessed the income of the deceased as Rs.1,200/- per month. The monthly dependency was taken as Rs.800/- per month and yearly dependency was taken as Rs.9,600/-. The multiplier applied by the Tribunal at the age of 20 years was 16 and in this manner, the amount calculated by the Tribunal was Rs.1,53,600/- (9600 X 16). Feeling dissatisfied with the abovesaid award, the claimants have filed FAO No. 1091 of 1994 for enhancement of compensation, whereas Hamida has preferred FAO No. 497 of 1994, claiming that he was not the owner of the vehicle at the time of the accident as the same has been sold to Roshan s/o Sarfu-respondent No.2. The other ground taken by Hamida is that Insurance Company has been wrongly FAO No. 1019 of 1994 -4- absolved. FAO No. 1019 of 1994 Learned counsel for the claimant-appellants has submitted that deceased was having an agricultural land and besides that he was keeping buffaloes. So, the income of the deceased Rohitan should have been taken as Rs.2,000/- per month instead of Rs.1,200/- per month, taken by the Tribunal. He has further contended that multiplier applied by the Tribunal is on lower side. It is further contended that the evidence produced by the claimants regarding income goes un-rebutted. So, the Tribunal has simply reduced the income to Rs.1,200/- per month on the ground that documentary evidence has not been produced. So, prayer has been made for taking the income of the deceased as Rs.2,000/- per month. Counsel for respondent No. 3 as well as, Insurance Company have supported the judgment of the Tribunal regarding income of the deceased. I have considered the submissions made by both the sides and have also gone through the record of the case. The accident has taken place on 27.11.1991. The income of deceased has to be assessed keeping in view the income of a labourer in that year. I am of the considered view that even a labourer earned Rs.50/- per day in the year 1991. So, in this manner, the income of the deceased is taken as Rs.1,500/- per month. After deducting 1/3 amount on account of maintenance of the deceased, the monthly dependency comes to Rs.1,000/- and yearly dependency comes to Rs.12,000/-. The multiplier applicable at the age of 20, in view of FAO No. 1019 of 1994 -5- authority reported as Sarla Verma and others vs. Delhi Transport Corporation and another 2009(3) RCR (Civil) 77, should be 18. So, the amount calculated in this manner, comes to Rs. 2,16,000/- (12000 X 18). The enhanced amount of Rs.62,400/- shall carry an interest @ 7% per annum from the date of filing of appeal till payment. FAO No. 497 of 1994 Counsel for the appellant – Hamida has vehemently argued that the vehicle in question was taken on superdari by Roshan -respondent No.2. The same was sold on 26.9.1991. It is further contended that the learned Tribunal has wrongly absolved the liability of Insurance company. The Insurance company should be held liable. Counsel for the Insurance company has supported the judgment of the Tribunal and has submitted that since accident has taken place at 8.30 A.M. on 27.11.1991 and policy was obtained only at 1.30 P.M. So, the Insurance company is not liable. I have considered the rival submissions made by counsel for both the sides and have also gone through the record of the case. Hamida cannot travel beyond his own pleading. The ownership has been admitted by him in the written statement and no evidence has been produced by him before the Tribunal that vehicle was sold to Roshan. So, far as the liability of Insurance company is concerned, the learned Tribunal has rightly held that Insurance policy was obtained after the accident and as such the Insurance company is not liable. In view of the above discussion, the appeal preferred by FAO No. 1019 of 1994 -6- claimants i.e. FAO No. 1019 of 1994 stands partly accepted to the extent mentioned above, whereas the appeal preferred by Hamida i.e. FAO No. 497 of 1994 stands dismissed.

4.3.2010 ( K.C. Puri ) Judge