- (1.) THE appeal No. 90/85 has been filed by the Insurance Company and the Appeal No. 97/85 has been filed by the owner of the vehicle under section 110-D, Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') against the award passed by the Motor Accident Claims Tribunal Bhilwara dated February 2, 1985 in MACT case No. 38/82. THE facts of the case giving rise to these appeals may be summarised thus. THE respondents No. 1 to 6 (in both the appeals) filed a petition under section 110-A of the Act for claiming compensation to the tune of Rs 1,10,000/- with the allegations, in short, that on September 25, 1975 at about 11. 30 a. m. bus bearing No. RSL 3301 was coming from village Kodimal to village Asind, it was being driven by its driver Mustaq (respondent No. 11) rashly and negligently, as a result thereof, it collided with Sobha Ram who was going on foot on his right side of the road and further collided with the wall of the agricultural field of Shri Mustaq Ahmed, Advocate. Sobharam was caught & carried at a distance of 15-20 ft. by the front portion of the bus. As a result of the injuries, he died on the spot. He was earning Rs. 12,000/- per year from the agriculture and was supporting the claimants. THE owners Nathulal, Shobhalal, Munnalal & Ganeshlal and the driver Mustaq admitted in their joint written statement that the bus was being driven by Mustaq & it was owned by Nathulal, Shobhalal, Ganeshlal & Munnalal and on September 25, 1975 it met with an accident at about 11. 30 am. THEy further averred that all of a sudden, the tie rod of the bus gave away for which neither the driver nor the owners of the vehicle were responsible. THE accident took place on account of Vis Major. THE Insurance Company admits in its written statement that the said bus No. RSL 3301 was insured by it in favour of the owners Nathulal, Shobhalal, Ganeshlal & Munnalal. It further also averred that the accident had already taken place before the vehicle was insured, the material fact about the accident was concealed and as such the Insurance Company is void and ineffective. After framing necessary issues & recording the evidence of the parties, the learned Tribunal held that the accident took place due to the rash and negligent act of the driver of the vehicle, Shobharam died on the spot as a result of the injuries received by him in the accident, the claimants are entitled to get Rs. 64,000/- as compensation, the insurance company is also liable to pay the amount and accordingly passed the award which has been challenged in the these appeals.
(2.) IT has been contended by the learned counsel for the Insurance Company that the accident took place at about 11. 30 A. M. on September 25, 1975 and the bus No. RSL 3301 was insured at 3 P. M. on 25 9. 75 as is proved from the cover note Ex. A/1 and certificate of insurance, paper No. C32/4, and the statement of Insurance Inspector, Shri K. C Taparia NA. W. 5. He further contended that Shri K. C. Taparia N. A. W. 5. has clearly stated on oath that the owners of the vehicle did not disclose about the accident otherwise he would not have insured the bus. He also contended that the insurance policy was void on the ground of suppression of material fact regarding prior accident. He further contended that admittedly, the bus was not insured at the time of the accident and as such the insurance company cannot be held liable for the payment of compensation. He lastly contended that the learned Tribunal seriously erred to bold the insurance company liable to the extent of the full amount of compensation as it could be liable to the extent of Rs. 50,000/- as provided under Section 95 (2) of the Act. In reply, it has been contended by the learned counsel for the owners of the bus & claimants that the insurance policy was effective from O. hour on September 25, 1975 as is clear from the insurance policy, paper No. C-l8/4-5, cover note Ex. A/1 and certificate of insurance, paper No. C34/1. They relied upon 1984 A. C. J. 530 (Madras), 1980 A. C. J. 413 (P & H), 1988 A. C. J. 478 (P. H.) & 1964 Bombay 148. They further contended that the owner of the bus Nathulal N. A. W. 1 has deposed that he made payment of the premium and submitted the form of proposal on 24. 9. 75 and not on 25. 9. 75. They lastly contended that there was no question of suppression of the fact about the accident as the owner Nathulal A. W. 1 who got the bus insured was not at all aware of the accident. The Inspector, National Insurance Company, Beawar Shri K. C. Taparia, N. A. W. 5 admits in his statement on oath that Nathulal N. A. W. 1 gave proposal form to him and it must be in the office of the insurance company. Nathulal has deposed that the proposal form and the amount of the premium were given to Shri Taparia N. A. W. 5 on 24. 9. 75. Admittedly, proposal form has not been produced by the insurance company. The receipt Ex A/2 of the payment of the premium of Rs. 256. 20 P. was issued on 25. 9. 75. Time of issue is not mentioned in it. It must have been issued prior to the issuance of the cover note Ex. A/1 and certificate of insurance, paper No. C-32/4. It is well proved from the evidence on record that Nathulal N. A. W. 1 was not present in the bus when the accident occurred at 11. 30 A. M. on 25/9/75 in between the villages Kodiman and Asind. The statement of Nathulal N. A. W. 1 appears to be correct when he stated that he gave the proposal form & amount of premium on 24. 9. 75 and it is not correct that he got his vehicle insured by suppressing the fact of accident. Non-production of proposal form supports his version. The cover note Ex. A/1 mentions time of issue. . . 3 P. M. Its columns No. 3 and 4 run as under: - "3. Effective date of commencement of insurance for the purposes of the Act. 25/9/75. 4. Date of expiry of insurance, 24/9/76. " Similarly, the} columns No. 3 and 4 of the certificate of insurance, paper No. C-32/4, run as under: - "3. Effective date of commencement of Insurance for the purposes of the Act. 25/9/1975. 4. Date of Expiry of Insurance. 24/9/1976. " The relevant portion of the insurance policy, paper No. C-18/4-6, runs as under:- Commencing date 25/9/1975. Expiry Date 25/9/1976. " Even assuming that the risk note and cover note were issued at 3 P. M. on 25 9. 75, the insurance company is liable to make payment of the amount of compensation as the insurance policy was effective from zero hour of September 25, 1975. In other words, the insurance for the purpose of the Act commenced from the mid night of the night intervening 24th & 25th September, 1975. In these columns, effective time of commencement of insurance is not mentioned but the effective date of the commencement of the insurance is mentioned. If the time would have been the determining factor, the columns would not have been so. The time of 3 P. M. is the time of issuance of the cover note and not of the commencement of the insurance. It has been observed in Maya Devi v. Hoob Raj, (1) as under:- "8. This brings me to the consideration of issue No. 4. On behalf of the insurance company, it is argued that the accident took place about 7. 30 a. m. whereas the truck was got insured on the same day after 10. 00 a. m. after the opening of the office and, therefore, the insurance company is not liable. In Jaikrishandas v. Chiruthai Ammal, 1984 ACJ 530 (Madras) and United India Fire & General Insurance Company Ltd. v. V. Srinivasan, 1950 ACJ 413 (Madras), it has been ruled that if the insurance policy is obtained on the. same date after the accident, yet it would operate from the previous midnight and, therefore, the insurance company would b liable. The learned counsel for the insurance company could not show any judgement to the contrary. Following the aforesaid two decisions, I hold that the insurance company is liable to reimburse the insured i. e. , the owner of the truck Hence, issue No. 4 stands decided accordingly. " In view of these facts & circumstances, the Tribunal has rightly held the national insurance company liable for the payment of compensation. There is a force in the contention of the learned counsel for the insurance company that the liability of the Insurance Company was limited upto Rs. 50,000/- as provided in Section 95 of the Act. It is clearly provided in the insurance policy that the liability of the Insurance Company is upto Rs. 50,000/ -. The mention of full third party risk does not mean that its liability will extend over & above Rs. 50,000/- The Insurance Company is liable to pay amount of compensation to the extent of Rs. 50,000/- The Tribunal has also held so while recording the findings on the issue No. 9.
(3.) THERE is no force in the contention of the learned counsel for the owners and the driver of the bus that the accident took place due to the sudden failure of the tie rod which could not be detected despite taking reasonable care & caution. The owner Nathu Lal N. A, W. 1 has deposed that he had instructed the driver to check the oil, nut and bolt every morning & evening before starting the bus. Similarly, driver Mustaq N. A. W. 2 has disclosed in his statement that he had instructions to check the bus for one hour every morning and evening and he duly checked the bus before driving it on the date of the accident. In the cross-examination, Nathulal N. A. W. 1 admits that these facts have not been pleaded in the written statement. It is well settled law that no amount of evidence can be looked into upon a plea which has not been put forward. Thus the position is that there is no pleading and proof to the effect that the bus was being properly checked and maintained. The M. T. O. , Bhilwara, Kundanlal N. A. W. 3 has deposed that on examination of the bus, he found that as a result of the slipping of the ring of the tie rod, its bolt gave way, THERE is also nothing on the record to indicate as to when the ties rod ends were greased. Tata Diesel Vehicle, Operators Hand Book requires that tie rods ends should be greased after every 1000 kms. Admittedly, water body of the bus got broken before the accident. This show that the vehicle was an old one. If it would have been checked properly before driving it, the defect of the tie rod would have been detected and the accident would not have taken place. For this omission, the owners and the driver are responsible. It has been observed in Oriental Fire & General Co. Ltd. V. Satya Deo Dubey, (2) as follows: "7. In the present case the vehicle was manufactured in the year 1962 and the accident took place in the year 1973. THERE is no evidence produced on the part of the defendant appellants to show as to in what manner the vehicle was being maintained. It has not been specifically shown that the vehicle was periodically checked and its parts including the tie rod were found to be in working order. In these circumstances negligence on the part of the owner of the vehicle and its driver is established. " It is well proved from the evidence on record particularly site-plan Ex 4 that the bus first dashed with the deceased Shobharam, thereafter, it dashed with the wall of the agricultural field of Mustaq Ahmed Advocate and it stopped at a distance of about 11 ft. from the dead body of the deceased. This wall broke to the extent of 13'. These fact leave no doubt that the bus dashed against the deceased and the wall with great force. In other words, it was being driven with tremendous speed. It is admitted case of the driver and owner of the bus that on that day the water body of the bus got damaged, the passengers were asked to get down and empty bus was being driven. It seems that the bus was being driven with excessive speed so that the water body might not get hearted up frequently and so repeatedly troubled the driver. The Tribunal has rightly held that the accident occurred due to the negligence and carelessness of the driver. The Tribunal has awarded Rs. 64,000/- only as compensation. It is well proved from the evidence on record that the age of the deceased Shobharam on the date of the accident was about 35 years and he was cultivating 25 bighas of agricultural Land. After properly discussing the evidence on record the Learned Tribunal has rightly held that the annual income of the deceased was Rs. 5,000/-and he was spending of the life of the annually on himself. The Tribunal has estimated the compensation assuming the expectancy of the life of the deceased to be 65 years. Despite it, the Tribunal has applied the multiple of 16 only. There exists no ground for reducing theamount of compensation Thus there is no force in the appeal No. 97/85. ;