X Obj No.9-CII of 2002 v. Satish Kumar Gupta & Anr.

CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

1. The insurance company is on appeal challenging its liability on the ground that at the relevant time when the accident had taken place namely on 27.02.1997 at 1 PM, there had been no policy of insurance at all. The cover note produced by the owner to make it appear as though that the policy was taken at 12.50 PM at Jalandhar was a fabrication and it had been done in connivance with some of the officials of the insurance company after knowing that an accident had taken place at 1 o'clock after the delivery of the vehicle was taken at Patiala, as the time of commencement of the FAO No.1228 of 2001 -2- insurance cover was deliberately stated to commence from a time prior to the time of accident.

2. It was in evidence that the vehicle had been taken delivery by the owner-cum-driver Avtar Singh from a vehicle dealer at Patiala at 12.50 PM and it met with an accident 10 minutes later at 1 PM. The policy was said to have been issued at Jalandhar at 12.58 PM. Before the Tribunal, the evidence of the Works Manager at Patiala from whom the vehicle had been delivered was led through RW-2. He gave evidence to the effect that whenever a vehicle is financed by Telco, the insurance cover would be issued simultaneously but in case where the financing is done by some other institute, the vehicle would be released even without insurance. His evidence was to the effect that he had delivered the vehicle to Avtar Singh and his signatures were also taken at the register maintained in the regular course of business. This evidence is conclusive in one sense relating to the presence of Avtar Singh at the place of delivery. Nothing is elicited about the exact time of delivery, though Avtar Singh would give evidence to the effect that he took delivery of the vehicle at Patiala at 12.50 PM. A Senior Assistant of the appellant-insurance company at Jalandhar was examined by the insured as RW-3, who gave evidence to the effect that the cover note was issued by him at

12.50 PM and that it was got signed by him from Avtar Singh. Significantly in the chief-examination he does not say that the cover note was signed by Avtar Singh at 12.50 PM. He has only stated that it was “got signed by me from Avtar Singh (emphasis supplied).” In the cross-examination he clarified that the owner was made to sign FAO No.1228 of 2001 -3- on the cover note but cover note was handed over to the financier , who further handed it over to the owner. This statement in the cross-examination, therefore, brings out the meaning to what he has stated in the chief-examination elsewhere that he got the cover note signed from Avtar Singh. A whole reading of the evidence of RW-3 would show that the cover note had not been handed over to Avtar Singh at 12.50 PM but the cover note, however, was issued by him at

12.50 PM. If the Senior Assistant of the insurance company had been brought as a witness by the insured, then the insurer must have availed himself the opportunity to cross-examine him and suggested to the witness that his evidence was wrong and that the cover note had not been issued at 12.50 PM. In fact there was no suggestion made by the insurer to the witness. If on the other hand, RW-3 must be taken to be a witness of the insurer itself then his evidence that the policy was issued at 12.50 PM constitutes an admission against the insurer. In either case, I would find that RW-3's evidence takes it out of pale of any controversy at least so far as the insurer is concerned that the policy had been taken prior to the time of accident at 1 PM. RW-4 was Kashmir Singh, who gave again evidence to the effect that he, as a financier, had completed all the formalities on 27.02.1997 and after only the cover note was issued they had informed telephonically about the said fact to M/s Inderjit Auto Sales Patiala when the vehicle was handed over to Avtar Singh. Avtar Singh has also given evidence as RW-5, who explained that he had completed the formalities for the insurance three or four days before the purchase of the truck. A conjoint reading of the FAO No.1228 of 2001 -4- evidence of the witnesses convince me that the policy was not deliberately ante-dated to suit the timing of the accident and to ensure that an insurance cover was available. On the other hand, the evidence is cogent and there is nothing inconsistent in the manner in which the witnesses had spoken. The Tribunal has sifted the evidence, in my view, correctly and has come to the conclusion that there was a valid insurance cover at the time of the accident took place.

3. The award of the Tribunal is confirmed and the appeals filed by the insurance company are dismissed.

4. There is cross objection for enhancement of claim for compensation for death of a pillion rider in a scooter that was dashed against the insured's truck. The person, who died was a house-wife aged 45 years and the claim was made by two major sons, daughter, who was married and husband aged 57 years. The issue of quantifying services of a householder has been indeed tricky and the Courts have come up for several formulas. The latest one obtained through a judgment of the Hon'ble Supreme Court in A run Kumar Aggarwal and another Vs. National Insurance Company 2010 RAJ 262 is where the Hon'ble Supreme Court exhorted the Parliament to legislate for appropriately quantifying the householder's services. The Hon'ble Supreme Court was also making a reference to a judgment of the Division Bench in National Insurance Company Limited Vs. Minor Deepika 2009 (6) MLJ 1005 that suggested that 50% of the come of the husband must be taken to be the householder's contribution. It suggested an alternative FAO No.1228 of 2001 -5- principle of value of the services lost as a guiding factor for determining the services of a house-holder. Unfortunately, for me there is no particular evidence with reference to the status of the husband or indeed, even what she was capable of doing and there is a vague statement that she would do stitching work. A reference to the householder knowing stitching work is not the same thing as a person, who is occupied in doing the work of stitching and making an earning out of it.

5. The learned counsel for the respondent refers me to the decision of the Division Bench of this Hon'ble Court in Dabwali Fire Tragedy Victims Association Vs. Union of India & others 2009(4) Law Herals (P&H) DB 3220. Referring to several decisions, the Division Bench provided for women in the age group of 62 to 72, the amount of contribution to be Rs.20,000/- to Rs.25,000/- and provided for a compensation for women at various ages in the range of Rs.6,60,000/- to Rs.9 lacs and odd. I cannot accept the plea that this can afford to the claimant any basis for determining a compensation in motor accident. We have to cope with situations of dis-similar tratments for dis-similar accidents. Objectively a death may result to the dependents a loss that has to provide for homogenous response but even under the various schemes of different Acts, they are not uniform. For instance, a person that dies in an aircraft tragedy gets a fixed compensation of Rs.10 lacs under Carriage by Air Act. A person that travels and meets with the accident in a railway accident, makes possible for a claimant an amount of Rs.4 lacs under the Railways Accidents & Untoward FAO No.1228 of 2001 -6- Incidents (Compensation) Rules and under the Motor Vehicles Act, the principle of liability on no fault basis provides for a maximum of Rs.50,000/-. We have not evolved a uniform policy of compensating the representatives of deceased persons and I may have to only record a painful truth that death always does not result in similar returns to a legal representative. The nature of death is a factor that has to be seen to work out the compensation that is payable. A person that comes to grief by death of a near relative in mass disasters could be compensated differently but under a Motor Vehicles regime, I am only guided by what has recently been stated in Arun Kumar Aggarwal's case referred to above.

6. I would still take the value of the householder's services to be Rs.3,000/- per month. The daughter having been married off and the sons being also married, I would take the services of the wife as most essentially to the husband and would take that to be 50% of what she was capable of contributing. It will be Rs.1500/- per month and yearly loss to the husband, I would take to be Rs. 18,000/-. She was a person of 47 years of age and I would apply a multiplier of 13 and determine the amount of loss as Rs.2,34,000/-. I would add another Rs.7500/- to the loss of consortium and funeral expenses. In all, the total compensation that shall become payable would be Rs.2,41,500/-. The Tribunal has already awarded a sum of compensation of Rs.1,25,000/- and the amount in excess of what has already been awarded shall attract the interest @6% from the date of the petition till the date of payment.

7. The cross objections filed by the claimants are allowed as FAO No.1228 of 2001 -7- above. It appears that the husband himself was died subsequent to appeal and the entire amount of compensation as determined shall go to the benefit of all the children equally. September 14, 2010 Pankaj* (K.KANNAN) JUDGE