The Oriental Insurance Company vs Smt. Kalavati W

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                      
                    NAGPUR BENCH, NAGPUR.




                                              
                   First Appeal No.1672 of 2008




                                             
    The Oriental Insurance Company
    Limited, Akola, Through its
    Divisional Office No.2:
    8, Hindustan Colony,




                                   
    Wardha Road, Nagpur.                         ..... Appellant.
                       ig     :: versus ::

    1. Smt. Kalavati Wd/o Surajpal Sahu,
                     
    Aged about 59 years,
    Occupation : Household.

    2. Smt. Sushma Wd/o Rajesh Shahu,
      


    Aged about 29 years,
    Occupation : Household.
   



    3. Miss Pooja Rajesh Sahu,
    Aged about 9 years,





    Occupation : Not known.

    4. Ku. Sakshi Rajesh Sahu,
    Aged about 7 years,
    Occupation : Not known.





    Respondent Nos.3 and 4
    minor through Respondent No.2.
    All R/o Pola Chowk, Paras.
    Paras : Tahsil Balapur, District Akola.



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    5. Shri Suresh Shalikram Kawalkar,
    Aged about 38 years,




                                             
    Occupation : Tractor Owner,
    R/o Ridhora, Tahsil Balapur,
    District Akola.




                                            
    6. Shri Shrikrushna Ramrao Barde,
    Aged about 28 years,
    Occupation : Driver,
    R/o Umara, Tahsil : Patur,




                                   
    District Akola.                        ..... Respondents.
    ==========================================
                       
           Shri A.R.Godbole, counsel for the appellant.
           Shri G.K.Sarda, counsel for R-2.
    ==========================================
                      

                         CORAM : A. P. BHANGALE, J.

DATE : 12th DECEMBER, 2013 ORAL JUDGMENT.

1. This appeal is preferred, against judgment and award dated 31.7.2008, passed by the learned Chairman, Motor Accident Claims Tribunal, Akola, in Motor Accident Claim Petition No.119 of 2005, by appellant - The Oriental Insurance Company Limited, Akola, whereby the .....3/-

3 fa1672.08.odt compensation was granted in the sum of Rs.8,00,000/-

payable jointly and severally by the present appellant along with tractor owner and driver respectively. The compensation was payable along with interest at the rate of 8% per annum from the date of the petition till realization with proportionate costs of Rs.50,000/-.

2. The brief facts giving rise to the present appeal, are thus :

The motor vehicle accident occurred on 6.10.2004 at about 9:00 p.m. when deceased Rajesh was driving the "auto-rickshaw" carrying three passengers. At that time, the "tractor" bearing Registration No.MH-30-J-5644 along with "trolly" bearing Registration No.MH-30-J-958, driven by Shrikrushna Ramrao Barde, dashed "auto-rickshaw".

In the result, deceased Rajesh had suffered serious injuries. He was required to be admitted in the hospital and received medical treatment spending sum of Rs.1,65,000/-. However, deceased Rajesh succumbed to injuries on 30.10.2004.

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3. The claim was lodged by dependents of the deceased, namely mother Smt. Kalavati, widow of the deceased Smt. Sushma and daughters Pooja and Sakshi. The claim was in the sum of Rs.20,00,000/-.

4. The learned Chairman of the Tribunal found, that the accident occurred due to rash and negligent driving of the "tractor and trolly" and there was no contributory negligence on the part of the driver of "auto-rickshaw"

i.e. deceased. Under these circumstances, the compensation in the sum of Rs.8,00,000/- was awarded as the learned Chairman of the Tribunal considered the evidence led before it.

It was found on evidence, that the deceased was earning Rs.360/- per day, in the first year as taxi driver as he was in the service at the disposal of the M.S.E.B., in the second year he received Rs.299/- per day. Thus, there was documentary evidence signed by the Executive Engineer of the M.S.E.B. as also Income Tax Form No.16-A in respect of net payment made to the deceased. On the .....5/-

5 fa1672.08.odt basis of that, the M.S.E.B. had made payment from-time-

to-time to the deceased and deducted 1/3rd from the payments made towards self expenses of the deceased.

5. The learned Chairman of the Tribunal arrived at the conclusion that loss of dependency was Rs.50,000/- per year for the deceased and considering the age of the deceased as well as the age of the widow and minor daughters of the deceased which was mentioned as widow was 26 years while daughters were aged about 6 and 4 years respectively. The deceased was also survived by mother aged about 56 years. Under these circumstances, the deceased died living behind family members and his mother although as per law maximum multiplier is of "18". If age of the deceased alone is considered in the context of the facts, the learned Chairman of the Tribunal restricted multiplier to "12" only as it was considered just and sufficient. That being so, the amount of Rs.6,00,000/- as also pecuniary expenses, compensation for loss of company i.e. loss of consortium, mental stress, pain and agony for the family members, .....6/-

6 fa1672.08.odt the leaned Chairman of the Tribunal instead of awarding sum of Rs.20,00,000/-, restricted the compensation to the sum of Rs.8,00,000/- only, along with interest at the rate of 8% per annum from the date of the institution of the petition till realization of the entire award amount.

6. The learned counsel appearing for the appellant contended that there was no Valid Driving Licence for the driver of the offending motor vehicle and thus there was breach of insurance policy condition. In my opinion, in order to succeed on such pleadings, the Insurance Company need to adduce evidence apart from raising specific pleadings, that was not done in this case. Even assuming for the sake of argument, that offending motor vehicle was not driven by the driver holding Valid Motor Driving Licence, the Insurance Company cannot escape the liability to pay the compensation to the dependents of the deceased as ordered by the Tribunal, at the most it may pay and recover the compensation paid from the owner and driver of the offending motor vehicle, if according to the Insurance Company they had committed .....7/-

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         breach of policy condition.       In case the insurance




                                                                       

Company wants to adopt proceedings in the Tribunal, no independent proceedings is needed but executing Tribunal can certainly consider such plea, if any, and may pass appropriate orders. This cannot be a pretext for the Insurance Company to delay or avoid the payment of compensation as ordered by the Tribunal.

7. Considering, the impugned judgment and award, in the light of the facts and circumstances of the case, the deceased was unfortunate young person/young driver who was aged hardly 29 or 30 years at the time of accident and left behind dependents consisting of widow aged about 26 years and daughters aged about 6 and 4 years respectively. Under these circumstances, looking to the claim amount in the sum of Rs.20,00,000/- out of which the leaned Chairman of the Tribunal awarded sum of Rs.8,00,000/- only along with interest at the rate of 8% per annum, I do not find any ground to interfere with the compensation amount awarded which appears to be just and reasonable. Hence, the appeals is dismissed in the .....8/-

8 fa1672.08.odt absence of any reasonable ground to interfere in the impugned judgment and award.

8. The appeal is dismissed accordingly. No orders as to costs.

JUDGE !! BrWankhede !! ...../-