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1994 JLJ 296
V.S. Kokje and R.D. Shukla, JJ.
Nani Bai and others v. Ishaque Khan & others
M.A. No. 296 of 1986; against the award passed by MA.C.T. Mandleshwar,
in claim case No.3 of 1982; Decided on 11.12.1993.
(2) Motor Vehicles Act, 1939 -- S. 94 -- (New S. 146) -- insurer accepting the premium for insurance of motor bus -- cannot be allowed to plead exoneration on the ground that insured was dead.
Admittedly Kartarsingh died somewhere in the year 1975. The Insurance Co. had all along been accepting the premium for the insurance of motor bus and they had accepted the premium for the year of accident also. The accident occurred on 9.8.81. The Insurance Co. had collected premium for the period 11.6.81 to 10.6.82. The Insurance Co. has got number of officers and employees to check and verify the vehicle and the owner of the vehicle. Now having accepted the premium for the insurance of the vehicle the Insurance Company can‘t be allowed to say that he is not liable to compensate the persons who have been injured or who died in the accident. [Para 12
(3) Motor Vehicles Act, 1939 -- S. 94 (New S. 146) -- insurance of vehicle is required and not that of its owner -- without insurance vehicle is not allowed to be plied.
The words, "unless there is in force in relation to the use of the vehicle of that person .................... a policy of insurance" go to show that it is the vehicle that is required to be insured and not the person or the owner of the vehicle and in such a situation the Insurance Company cannot escape its liability. 1976 ACJ 320 relied on. (1971) 2 QB 245 discussed. AIR 1987 SC 1184 followed. [Paras 13 to 15
(4) Motor Vehicles Act, 1939 -- S. 110B -- assessment of compensation -taking yearly income and loss of dependency of claimants and its capitalisation by using multiplier -- is appropriate method. AIR 1993 SC 1259 followed. [Para 18
(5) Motor Vehicles Act, 1988 -- S. 168 -- award of just compensation includes payment of compensation periodically in instalments. AIR 1981 SC 2059 and AIR 1993 Guj. 171 (FB) relied on. [Para 21
¼1½ eksVj ;ku vf/kfu;e] 1939 & /kkjk 110d & Mªkboj }kjk cl dk cgrs ikuh esa Mwch iqfy;k ikj fd;k tkuk & Mªkboj dk mrkoysiu vkSj mis{kkiw.kZ dk;Z Lo;a nf‘kZr gSA ¿iSjk 10
¼2½ eksVj ;ku vf/kfu;e] 1939 & /kkjk 94 ¼ubZ /kkjk 146½ & chekdrkZ }kjk eksVj cl lhek ds fy, çhfe;e Lohdkj fd;k x;k & ekQh dk vfHkopu bl vk/kkj ij djus dks vuqKkr ugha fd;k tk ldrk fd chekÑr ej x;k FkkA
LohÑr :Ik ls djrkj flag dHkh o"kZ 1975 esa ej x;kA chek daiuh eksVj cl ds chek dk çhfe;e yxkrkj Lohdkj djrh jgh Fkh vkSj mUgksaus nq?kZVUkk okys o"kZ ds fy, Hkh çhfe;e Lohdkj fd;k FkkA nq?kZVuk 9-8-81 dks gqbZA chek daiuh us 11-6-81 ls 10-6-82 rd dh vof/k ds fy, çhfe;e lax`ghr dj fy;k FkkA chek daiuh ds ikl ;ku vkSj ;ku ds Lokeh dh tk¡p iM+rky vkSj lR;kiu d fy, Ik;kZIr la[;k esa vf/kdkjh vkSj deZpkjh gSaA ;ku ds chek ds fy, çhfe;e Lohdkj dj fy, tkus ij chek daiuh }kjk ;g dgk tkuk vuqKkr ugha fd;k tk ldrk fd nq?kZVuk esa {kfrxzLr gq, vFkok e`r O;fDr;ksa ds çfrdj ds fy, nk;h ugha gSaA ¿iSjk 12
¼3½ eksVj ;ku vf/kfu;e] 1939 & /kkjk 94 ¼ubZ /kkjk 146½ & ;ku dk chek visf{kr gS] mlds Lokeh dk ugha & chek fcuk ;ku dk mi;ksx vuqKkr ugha gSaA
^^tcfd ml O;fDr-------------------------}kjk ml ;ku ds mi;ksx ds laca/k esa ,slh chek ikfylh ço`Ùk gS** ‘‘kCnkas ls ;g nf‘kZr gS fd og ;ku gS ftldk chek fd;k tkuk visf{kr gS] og O;fDr vFkok ;ku dk Lokeh ugha vkSj ,slh fLFkfr esa chek daiuh vius nkf;Ro ls cp ugha ldrhA 1976 , lh ts 320 voyafcrA ¼1971½ 2 D;w ch 245 foosfprA , vkb vkj 1987 ,l lh 1184 vuqlfjrA ¿iSjk 13 ls 15
¼4½ eksVj ;ku vf/kfu;e] 1939 & /kkjk 110[k & çfrdj dk fu/kkZj.k & okf"kZd vk; vkSj nkosnkjksa dh vkfJrrk dh gkfu fu;r djds rFkk xq.kd dk mi;ksx dj bldk iw¡thdj.k djds & leqfpr Ik)fr gSA , vkb vkj 1993 ,l lh 1259 vuqlfjrA ¿iSjk 18
¼5½ eksVj ;ku vf/kfu;e] 1988 & /kkjk 168 & U;k;laxr çfrdj ds vf/kfu.kZ; esa & fu;rdkfyd :Ik ls fdLrksa esa lank; lfEefyr gSA , vkb vkj 1981 ,l lh 2059 rFkk , vkb vkj 1993 xqtjkr 171 ¼iw.kZ U;k;ihB½ voyafcrA ¿iSjk 21
R.D. Shukla, J. -- 1. The common questions of fact & law (excepting the quantum) are involved in Misc. Appeal Nos. 296/86, 297/86, 298/86, 325/86, 326/86,331/86 and 332/86, hence, the same, excepting the quantum, are being decided by this order.
2. Misc. Appeal No. 296/86 arises out of the judgment and award dated 14.8.86, passed in Claim Case No. 3/82; Misc. Appeal No. 297/86 arises out of the judgment and award dated 29.8.86, passed in Claim Case No. 93/81; Misc. Appeal No. 298/86 arises out of the judgment and award dated 29.8.86, passed in Claim Case No. 89/81; Misc. Appeal No. 325/86 arises out of the judgment and award dated 29.8.86, passed in Claim Case No. 90/81; Misc. Appeal No. 326/86 arises out of the judgment and award dated. 29.8.86, passed in Claim Case No. 95/81; Misc. Appeal No. 330/86 arises out of the judgment and award dated 12.8.86, passed in Claim Case No. 1/82; Misc. Appeal No. 331/86 arises out of the judgment and award dated 29.8.86, passed in Claim Case No. 97/81 and Misc. Appeal No. 332/86 arises out of the judgment and award dated 29.8.86, passed in Claim Case No. 96, by Member, Motor Accident Claims Tribunal, west Nimar (Mandleshwar),whereby various amounts have been awarded as compensation to the claimants with a further direction that the Insurance Co. is not liable to make payments as the agreement of insurance was void.
3. Brief history of the case is that motor bus No. M.P.O. 3142 was being taken from village Nanda to Katargaon by respondent Ishaq Khan, who was the driver. The motor bus was owned by one Shri Kartar Singh. The respondent No. 2 (a), (b), (c) & (d) are legal representatives of Shri Kartarsingh. The motor bus was insured with respondent No.3, The New India Assurance Co. The respondent No.4 was managing the affairs and looking after the motor bus. The motor driver Ishaq Khan while taking the bus as above reached the bank of river 'Malan', which is a tributary of river 'Narmada', it had a culvert. The water was flowing over the bridge with strong current. Despite objections by the passengers the motor bus driver plunged the bus in the water. The moment bus reached almost in the middle it was swept away with strong current of water. Some of the passengers could swim across and were saved by Home-guard personnels. Many passengers were swept away by current of the water and their bodies could also not be recovered. Mangilal, the husband of claimant appellant No.1 and father of claimant appellant Nos. 2 to 8 who was also related as son to claimant appellant Nos. 9 & 10 was also swept away in that strong current of water. His body could not be recovered.
4. Mangilal was the bread winner of the family. He was earning nearly Rs.10/- per day and he was aged about 40 years. The claimant, therefore, prayed for a compensation of Rs. 85,500/-.
The respondents contested the claim and pleaded that there was no negligence of driver. It was vis-major. The river 'Malan' has a dam in the upper stream. The gates of the same were opened without notice to the residents of the area. The water current rose all of a sudden and took the bus in its grip and swept it away. The fact of Mangilal being a passenger in the bus was also denied. It was also contended that the bus was sold to respondent No. 4 without intimation to Insurance Co. It was also pleaded that the driver had no valid licence and the policy was purchased in the name of a dead person Kartarsingh and therefore the contract is void and Company is not liable to make payment.
5. The learned Tribunal held that the accident happened due to negligent driving of the vehicle. Mangilal was a passenger in the bus, who died in the accident. Age of Mangilal was accepted to be 45 years. The dependency was assessed to Rs.5/- per day i.e., Rs.1,800/- per year. By applying a multiplier of 10, Rs.18,000/- was awarded as general damages and Rs.3,000/- was awarded as damages for loss of consortium. As such a total of Rs.21,000/- was awarded. This accident oc
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