Judgment:
Guman Mal Lodha, J.
1. No compensation, much less compensation, all under compulsion, compromise wether legal socio-economic exploitation of tears of widow? Rs. 3,000/- compensation for human life, insulting and annoying and less than funeral and death ritual expenses, whether is rape on 'Social Justice' when we are in 'Socialist Era' of Constitution, preparing for 21st Century? Social Security Laws Protective Umbrella' for minors, widows, destitutes handicapped whether reduced to mockery and joke only? Would the 'eyes' of Goddess of Justicia at least now open eyes to see Social COMA & Vulgarity to human suffering?
2. A case of ridiculous record for Ginnis Book of World Records. Shameful for 'Social Justice' and shameless accident death claim auctioneers, 'Social Justice' betrayed or unmasked when compensation disparity of sea to sky gets Judicial Seal? Rs. 3,000/- for Hari Singh a cyclewala age 28 years more than Rs. 50,000/- for Dheer Singh a motorwala, age 38 years. Gunwant Kumari w/o Dhir Singh v. Sadhu Singh 1987(2) WLN 714. Birth as well as death, by accident.
3. Rs. 5,000/- solatium compensation for unknown vehicle accident, Rs. 15,000/- compensation Under Section 92-A of Motor Vehicles Act, on fault Rs. 5.000/- compensation component of consortium to widow? Rs. 3000/- compensation component of funeral expenses only. And yet Rs. 3000/- total compensation for death by accident with fault by compromise to widow, now a fall sea deep. Is it not colonial East India Company's Lord Clive's jurisprudence hang over? Can it be said to be 'Socialist' (preamble) jurisprudence?
4. Neither compromise nor consent withdrawal but surrender by helpless, ignorant poverty stricken, indolent, law literacy starved widow victim litigant; to exploitation and legal trickeries of death claim dozzers and avoiders.
5. And now the black dark story by traditional facts narration.
6. An unfortunate accident resulted in death of Hari Singh on 20th January, 1972 at 9.30 a.m. when he was going on a cycle from Mahari Ka Naka towards Chandpole Bazar at Jaipur Near Chomu bus stand when he passed the road, one bus No. RRL 6201 came from Jhotwara side and knocked down the deceased and cycle from behind. Hari Singh was crushed and died instantaneously as his head & skull was thoroughly crushed with the deadly strike of the front wheel of the bus and brain matter had emerged out. The cycle was entrangulated in front wheel of the bus. Bharat Singh was driving the bus rashly and negligently.
7. The claim petition was filed by the widow and minor sons in addition to her. Kaushalya is the widow and the minor sons are Vijay Singh, Sua and Deep Singh. Out of them Vijay Singh and Sua have expired and ROW only Deep Singh is alive.
8. This is one of those unfortunate cases where the human life was evaluated extremely cheap to the extent that widow took Rs. 3,000/- and entered into compromise. The Tribunal allowed the compromise and the withdrawal without appreciating that in cases of accident where compensation is awarded as a measure of social welfare and security, no one can compromise the fate of the minor, in this way.
9. Admittedly at the time of so-called compromise and withdrawal by Mst. Kaushalya w/o Hari Singh, Vijay Singh was of 4 years, Sua was of 2 years and Deep Singh was of 13 months. Reliance was placed before the Tribunal on the case reported in : AIR1972Guj35 .
10. In the above decision of : AIR1972Guj35 the Gujarat High Court has held that courts permits only when the compromise is in the interest of the minors. It was held that if the withdrawal is done without the court's sanction holding that the compromise as being in the interest of the minors, such with drawl naturally would be liable to be set aside, on the ground that the with drawl was not in the best interest of the minor.
11. The Tribunal inspite of reference to the above decision came to the conclusion that the Order 23, Rule 1 has no application and even if Order 23, Rule 7, CPC applies then the withdrawal in pursuance of the compromise entered into by Kaushalya mother and natural guardian with the truck owner cannot be said to be against the interest of the minor. Then the Tribunal observed that it was not void ab initio but voidable only.
12. The Tribunal then observed that there is no material on record that the withdrawal was not in the interest of the minors. According to the Tribunal when Rs. 3,000/-was awarded it held that it cannot be said that it would not be in the interest of minors, because it cannot be said that whether the application would succeed or fail. In my opinion the above view of the Tribunal cannot be accepted. Obviously the human life is not so cheap. it has come on the record and the Tribunal has found it. As a matter of fact that the deceased was only 28 years of age and he was earning Rs. 292/- per month at the time of death. The Tribunal has come to the conclusion that the deceased would have earned Rs. 300/- per month atleast and spent Rs. 150/-on himself and 50/-rupees on each of the child and Rs. 100/- on his wife. In such circumstances the finding that deceased would have given benefit to the family from the age of 28 years till the age of 60 and at least Rs. 150/- would have been the benefit to the family, could not have been and should not have been ignored by accepting a petty meagre, insulting and annoying amount of Rs. 3,000/- for the precious human life.
13. It is well known that in such cases of accident Rs. 5,000/- to Rs. 10,000/- are allowed normally for the loss of love and affection and consortium to the widow. It is surprising and shocking that at the young age when the deceased died on account of the accident only 28 years of age, Rs. 3,000/-was treated as just and reasonable in the interest of minors by the Tribunal. In my opinion this is much more shocking and in the present age when compensation which is being allowed to the children and wife on the basis of multiplier system treating to the age to be 65 to 70 years and permitting the amount of benefit of which the defendants should have normally received during all this time which normally comes to Rs. 50,000/- and some time a lac, 2 lac, 5 lac or more depending on income. It is impossible to conceive of a case where a Tribunal act so unless of course there is an exceptional case of absence of proof of any income or deceased dying at a very advanced age. The most surprising feature of this case is that minors interest are not being watched by the motor accidents court-cum-compensation Tribunal whose duty was to watch the interest of the minors, according to law and it failed to do so. What material is required to be placed on the record to convince that an amount of Rs. 3,000/- in a case of compensation where the deceased died at the age of 28 years having an income of about Rupees 3,00/- per month would be a negation and mockery of compensation. In my opinion the withdrawal and acceptance of the compromise was wholly misdirected and was against all cannons of justice and equity. It was clear violation and flagrant disregard and clear contravention of the spirit of as well as the letter of the law regarding compensation which is a species and branch of law in social welfare security legislation.
14. It is well known that now the legislature has even decided to allow Rs. 15,000/-without any fault of the driver of the vehicle who commits the accident. Not only that Rs. 5,000/- are allowed by the Government even when it is not known who committed the accident. This shows the benevolent progressive spirit, tendency and the outlook of the legislature in the matter of compensation. Rs. 3,000/- for the death of a person of 28 years earning Rs. 300/- atleast having three minors and widow, in my opinion is a mockery of the law of compensation and is insult on the minority age, would be always regarded as a sort of travesty of justice equity and fair play. Consequently I set aside this part of the judgment where the compromise and withdrawal has been allowed on payment of Rs. 3,000/-. Even consortium to widow alone is usually Rs. 5,000/- to Rs. 10,000/- depending on age. Consortium is not dependent on income.
15. Unfortunately the widow has not filed the appeal. The widow appears on account of poverty distress misfortune and misery of maintaining three children in the absence of husband and the loss of the only bread earner reconciled to his misfortune and did accept Rs. 3,000/- and did not file an appeal nor challenged it. This only shows the absence of legal, awareness and the necessity and requirement of legal education programme so that such widow and minors are not exploited. The legal aid agencies should challenge such exploitation and fatalism.
16. Unfortunately since the widow has its not filed an appeal it would not be possible for this court to allow her any more compensation. However so far as the minor son Deep Singh is concerned, who has filed the appeal I would allow compensation which has not been awarded by the Tribunal on the basis of calculation that the appellate court may award for two sons at rate of Rs. 50/- each. Now that only one son Deep Singh remains alive I would direct that the amount of compensation which was calculated by the Tribunal for two sons separately should be allowed to him alone Rs. 100/-p.m. and that amount is Rs. 25,000/-.
17. Normally if I would have been required to consider the amount of compensation it would have been much more, but in the facts and circumstances in which the case had been considered and conducted by the Tribunal it would meet ends of justice if Rs. 25,000/- awarded by the Tribunal for both the sons one of whom has died is now allowed to the only living memory of the deceased father, Deep Singh. Tribunal wanted to deduct 10 percent on account of lump sum, it is well known that this is not permissible now according to the latest judgment of this court and other courts.
18. Now then comes the question whether this compensation should be paid by the owner of the truck and the driver only or the insurance company also. The learned Counsel for the Insurance Company has stated that the cover notes produced in the case is meant only for 15 days and thereafter no policy was issued and therefore, the insurance company is not liable. I have perused the copy of the cover note from the file of the learned Counsel for the Insurance Company and the claimants. The original of the cover note is on the record of the trial court and I have perused that also. The cover note of M/s Anand Insurance Co. Ltd. expressly mentions that the proposed insurance in respect of motor vehicles described under schedule below has been proposed by the insured and he has paid the premium and the insurance company covers the risk in terms of company's usual standard forms of policy applicable there to for the period between the date specified in the schedule, unless cover be terminated by the Company's notice in writing which case the insurance company will thereupon cease and proportionate part of the annual premium otherwise payable for such insurance will be charged for the time the company has been insured.
19. It is clear that the premium accepted was annual premium that is for the whole year and not for a period of 15 days of the cover note. It is further clear that the effective date of commencement of insurance was mentioned that is 22-10-71 and expiry of insurance was mentioned 21-10-72 and not fifteen days.
20. In view of the above, it is not permissible for the insurance company to argue that even though the premium was payable for the whole year and the cover note expressly mentions that the proposal of the insured had been accepted by accepting the premium for the whole year and further even though the cover note mentions that only by a notice in writing the insurance company would be liable to cease or to be absolved of its liability and that also by accepting the proportionate part of the premium only but merely because the insurance policy has not been produced or was not issued assuming that to be limited to 15 days period mentioned in the period of validity of the cover note.
21. In my opinion the insurance company cannot be allowed to Absolve its liability unless by a written notice as mentioned in the cover note it absolved itself on account of any ground permissible in law. Once the premium for the annual insurance is accepted and once it is mentioned in the cover note that date of expiry of insurance would be after one year then no game of hide and seek is permissible for the insurance company.
22. What ever may be the implication of 15 days mentioned in the cover notes expiry period may be, it is not the validity of the cover note which is in question. What is required to be considered is the validity of the insurance. Issue of insurance policy after accepting the premium by the insurance company and issuing a cover note is a ministerial act and the insurance company cannot get rid of the liability merely by not issuing the insurance policy. This would be adding insult to injury because the insurance company by this device would deprive several persons from whom it has accepted the premium for the whole year, to be not available and by not issue of policy it cannot deprive the injured of the legal right to be compensated in case of accident or otherwise. All formalities of issue of cover note or insurance policies etc., are meant to regulate and to provide evidence or to make precise the term of the insurance but they cannot alter the fundamental and basic liabilities of the insurance company. In my opinion the basic liability of the insurance company as soon as the premium is accepted with the eye open and without there being any fraud on the part of the insured, the insurance company must and should pay the compensation without any demour or protest, without any technical defences without any execuses and without any alibi. This is the only spirit of the social welfare legislation and this is the spirit in which the insurance company should function because they are not meant to make undue profit like Shylock of Shakespear's 'MERCHANT OF VENICE' but they are really required to serve the society and the insured.
23. In this view of the matter I am of the opinion that the insurance company is liable in the present case. Consequently the appeal is accepted. The amount of Rs. 25,000/- would be paid as compensation to Deep Singh, minor and this amount would be in addition to Rs. 3,000/- already paid to mother of Deep Singh. Deep Singh minor would also get interest at rate (of 12 per cent from the date of application till the date of realisation. It is further ordered that this amount would be invested according to the principle laid down in Pista Devi Agrawal's case 1985 RLR 13 : 986 ACJ 23.
24. Before parting with this judgment, I must confess that this case amply illustrates the urgent pressing need, of legislative re-thinking in 'Compensation' Social Security Laws. Like 'Minimum Wages' there should be 'Minimum Compensation'. The disparity in compensation of 'Rs. 5,000/-'. Motor Vehicle Accident, Rs. 50,000/- train accident and 1 lac Aero Plane Accident victims should be abolished as pointed out by me in Ex. En. R.C.P. v. Smt. Rukman 1978 RLW (29) 264, which reads as under:
The labour legislations like Workmen's Compensation Act, Minimum Wages Act, Payment of Wages Act, Factories Act, etc. all have been enacted for the socio-economic purpose of providing relief to the workmen and regulating their relations which their masters in the performance or desire. The compensations which are allowed to the workmen also are fairly low in comparison to the compensation which are allowed by the Railways and Airlines in case of other accidents which is Rs. 50,000/- and Rs. 1,00,000/- respectively. The human life is the same whether one dies in harness while functioning as a workmen in a factory or on a road or while travelling in Aeroplane or train. However, it is not my domain to make any comment over it because it is exclusively for the Legislature to legislate.
25. The preamble of 'Socialist' republic should have some meaning. Article 14 should take activist role in Legislative field also, to stop such ridiculous compromises of Rs. 3,000/- for death of husband & father Law must prohibit & ban such exploitation of widow & minors, destitutes and handicapped. If not, what difference there would be in Rule of law v. Rule of Jungle,' 'Matsya Nyaya' and 'survival of fittest' should be buried deep, if the directive principles of our Constitution with Preamble of 'Socialist' republic and Article 14 of the Constitution, is to be respected. The new horizons and dimensions of 'Social Justice' sound hallow, if one gets Rs. 3,000/- in motor vehicle accident claim and other one, both citizens of India, gets more than 5 lakh as compensation.
26. In making and accepting grossly inadequate and insulting claim of compensation, the fatalist outlook due to legal unawareness becomes fatal to the bereaved family, which has to face double bereavement.
27. Is it not poor homage to constitutional mandates?
28. Such disparity and outrageous discrimination compels us to substitute 1986 by 1786 to depict our poor judicial functioning. The law by Legislation is not talking of 21st Century. Are we to adopt the via of 17th Century for entering into 21st as depicted by such instances of unlimited injustice in so-called limited judicial-cum-legislative discipline.
29. Looking to the facts and circumstances of the case, while accepting the appeal, I direct that the parties would bear their own costs, throughout.