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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 528 of 2005
Appellant : Oriental Insurance Company Limited,
through its Divisional Manager, Division
No. 3, Wardhaman Nagar, Nagpur
versus
Respondents : 1) Mrs Amruta w/o Narayan Kumbhalkar,
aged about 52 years, Occ: Nil,
2) Narayan s/o Raoji Kumbahlakar, aged about 57 years, Occ: Business Both residents of Gangla, Tahsil Tiroda, District Gondia
3) Ravanlal s/o Mohanlal Basane, aged about 46 years, Occ: Driver, resident of Dehutola, District Balaghat, MP
4) Anup s/o Hemraj Wegad, aged Major, Occ: Hanuman Chowk, Balaghat, MP Shri A. M. Quazi, Advocate for appellant None appears for respondents though served ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 ::: 2 First Appeal No. 536 of 2005 Appellant : Oriental Insurance Company Limited, through its Divisional Manager, Division No. 3, Wardhaman Nagar, Nagpur versus Respondents : 1) Anandrao son of Sitaram Tembhare, aged about 59 years,
2) Shakuntala w/o Anandrao Tembhare, aged 51 years
3) Hemlata wd/o Shivkumar Tembhare, aged 21 years,
4) Bali @ Mayuri d/o Shivkumar Tembhare, aged 3 years, being minor through her guardian-mother Respondent no. 3 Hemlata All residents of Gangala, Tahsil Tiroda, District Gondia
5) Ravanlal s/o Mohanlal Basane, aged about 46 years, Occ: Driver, resident of Dehutola, District Balaghat, MP
6) Anup s/o Hemraj Wegad, aged Major, Occ: Hanuman Chowk, Balaghat, MP ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 ::: 3 Shri A. M. Quazi, Advocate for appellant None appears for respondents though served Coram : S. B. Shukre, J Dated : 11th July 2017 Oral Judgment
1. Feeling aggrieved by the common judgment and order dated 9th May 2005 delivered by the Member, Motor Accident Claims Tribunal, Gondia in Claim Petitions No. 11 of 2004 and 12 of 2004, the appellant has filed these appeals.
2. Heard learned counsel for the appellant. None appears for respondents though duly served.
3. The points that arise for my consideration are thus -
(1) Whether the compensation granted by the Tribunal is just and proper ?
(2) Whether the appellant is liable to pay compensation ?
4. Although it is submitted by learned counsel for the appellant that deceased driver, one Naresh Kumbhalkar, son of the claimants in First Appeal No. 528 of 2005 was driving the car in a drunken state in the night of 31st December 2003 and, therefore, he was solely responsible for the accident, the evidence available on record suggests otherwise. In this ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 ::: 4 accident, not only driver Naresh died, but other occupant viz. Shivkumar, son of respondents no. 1 & 2; husband of respondent no. 3 and father of respondent in First Appeal No. 536 of 2005 also died due to grievous injuries sustained in the accident. The accident was in the nature of a collision between Fiat Car bearing registration No. MHV-3762 and the Truck bearing registration No. MP-20-B/7340. No offence had been registered against deceased Naresh, the driver of Fiat Car involved in the accident. The spot panchanama proved in evidence vide Exhibit 22 clearly shows that deceased Naresh died because of the run-over by the truck involved in the accident. The report in respect of the accident was lodged with police by some unknown person . The driver of the truck says that he was present on the spot of accident for almost two hours. When he tried to lodge report with the concerned Police Station, Goregaon, he could not do so because no police personnel was available at the Police Station. The truck driver has not given any particular time at which he allegedly went to the Police Station. He has not stated about the distance between the spot of accident and the Police Station and the time taken by him for reaching the Police Station. He also did not clarify as to by what mode he allegedly went to the Police Station. Not giving of these necessary details would make one believe that this truck driver cannot be relied upon for what he says regarding his going to the Police Station and inability to file First Information Report in respect of the accident due to ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 ::: 5 the absence of police staff at the Police Station All these facts cumulatively show that the finding recorded by the Tribunal regarding rashness and negligence on the part of the truck driver is consistent with the established facts and no error could be noticed in the same.
5. It is also the contention of learned counsel for the appellant that there was at aleast composite neglignce and since the owner and insurer of the Fiat car were not joined as necessary party, the impugned Award has been vitiated. I am not inclined to accept this argument for the reason that I have already found that it were the truck driver who was solely responsible for the occurrence of the accident.
6. Learned counsel for the appellant submits that the deduction of 1/3rd income in First Appeal No. 528 of 2005 is inconsistent with the settled principles of law as it should have been at least one-half instead of 1/3rd of the total income. Although it is true that when a claim for compensation on account of loss suffered because of the death of a bachelor is to be determined, the income that is required to be deducted on account of personal expenses would be to the extent of 50%. In First Appeal No. 528 of 2005, deceased was bachelor and, therefore, one-half deduction from his total annual income should have been made. But, that has not been done by the Tribunal. The question would whether the Court can now do so or not. I think in the facts and circumstances of this case which appear to be quite peculiar, doing of such an exercise would ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 ::: 6 bring further injustice to the claimant as the Tribunal has already not granted to the claimants the compensation under non-pecuniary heads. Therefore, the submission deserves to be rejected and it is rejected accordingly. However, the deduction made on account of personal expenses by the Tribunal in the other appeal viz. First Appeal No. 536 of 2005 appears to be just and proper, and no further adjudication thereupon is necessary.
7. Sofar as annual income considered by the Tribunal in order to award compensation to the claimants in these appeals is concerned, I do not think, any interference in the same is required. The consideration of the annual income is based upon the evidence available on record. No circumstances have been brought on record by the appellant so as to express any doubt about the claim made by the claimants regarding annual income of their dependence. Learned counsel for the appellant, in particular, submits that in First Appeal No. 536 of 2005, claimants could not be said to have lost any income because what has been considered by the Tribunal is the annual income earned by deceased Shivkumar from the cultivation of the agricultural field. In support, he places his reliance upon the case of Vandana w/o Suryakant Solav & ors v. Gundappa s/o Mandolappa Samangave & ors reported in 2016 (5) ALL MR 250 wherein a view has been taken, when evidence is available showing that deceased was personally cultivating the land owned by him, there would ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 ::: 7 be no total loss of agricultural income as the claimant can always cultivate the land even after the death of the deceased. In the instant case, the facts are quite different. Claimants Anandrao and Smt Shakuntala who are parents of the deceased, are aged persons and it cannot be presumed by any logic that the aged persons would be able to personally go to the agricultural field, withstand the rigor and vagaries of the nature and till the land. Inability to cultivate the land by widow Hemlata and Mayuri, a minor daughter of deceased Shivkumar can very well be taken for granted. This aspect, it appears, has not been considered in the case of Vandana w/o Suryakant Solav & ors v. Gundappa s/o Mandolappa Samangave & ors (supra) relied upon by learned counsel for the appellant. That apart, the income that used to be earned by deceased Shivkumar was not only from the cultivation of land owned by him. Another source of his income was also from the business of contractorship. Learned counsel for the appellant submits that no evidence in this regard has been adduced by the claimants on record. It is true that as regards the other source of income no evidence has been brought on record by the claimants. But, the fact remains that the parents of Shivkumar being old and aged persons, no assumption can be made that they straightway in absence of their son, could still cultivate the land and earn income from that source.
Learned counsel for the appellant also submits that in First ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 ::: 8 Appeal No. 528 of 2005, there is evidence to show that the parents were not dependent on deceased Naresh as the claimants have admitted in their cross-examination that they have two more sons. A perusal of the cross-examination discloses that no suggestion has been given to the witness that the parents were solely dependent upon the other sons. Therefore, all these contentions made on behalf of the appellant cannot be accepted and they are rejected accordingly.
8. In the results, I do not find any substance in these appeals and they deserve to be dismissed. Appeals stand dismissed. Parties to bear their own costs.
S. B. SHUKRE, J joshi ::: Uploaded on - 18/07/2017 ::: Downloaded on - 18/07/2017 23:37:52 :::