1 fa933.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.933 OF 2017
The Oriental Insurance Company Ltd.,
through its Divisional Manager,
Amravati, represented by Manager
T.P. Hub, A.D. Complex, Sadar,
Nagpur. ... Appellant
- Versus -
1) Smt. Vidya Ranu Ghule,
r/o Injora, Tahsil and District Akola.
2) Ku. Bhakti Ranu Ghule,
c/o Smt. Vidya Ranu Ghule,
r/o Injora, Tahsil and District Akola
(minor through mother guardian)
3) Shankar R. Mudholkar,
aged - major, occupation : owner,
r/o Wadarpura, Amravati,
Taluq and District Amravati.
4) Deleted.
5) Sau. Nalubai Madhukar Ghule,
age 55 years, occupation : household
work, r/o Parsoda, Taluq and
District Amravati. ... Respondents
-----------------
Mrs. M. Naik, Advocate for appellant.
Shri P.R. Agrawal, Advocate for respondent nos.1, 2 and 5.
----------------
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2 fa933.17
CORAM : P.N. DESHMUKH, J.
DATED : NOVEMBER 08, 2017 ORAL JUDGMENT :
Admit. Heard finally with consent of Smt. Naik, learned Counsel for appellant, and Shri Agrawal, learned Counsel for respondent nos.1, 2 and 5.
2) This appeal challenges judgment and award dated 30/4/2015 passed by the learned Member, Motor Accidents Claim Tribunal, Amravati in M.A.C.P. NO.482/2010 by which amount of Rs.8,15,000/- is awarded as compensation to respondents/original claimants with interest at the rate of 8% per annum from the date of petition, i.e. 30/11/2010 till realization of amount.
3) The petition presented before the learned Motor Accident Claims Tribunal was under the provisions of Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") alleging that deceased Ranu alias Rajesh Madhukar Ghule was earning Rs.40,000/- per annum as he was self employed in sale of milk and was aged about 26 years at ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 ::: 3 fa933.17 the time of accident, which occurred on 17/6/2010 at about 3 p.m. at Biyani Chowk, Amravati.
4) It is the case of claimants that on the day of accident, deceased Ranu was riding motor cycle bearing Registration No.MH-27/T-971 with one Pramod Shantaram Ghati as pillion rider and was proceeding towards University when one tipper bearing Registration No. MHG-6349 was stationary though not on the extreme left side of the road, but on the road itself without proper precaution and while deceased Ranu was in the process of over taking tipper, one vehicle came from opposite direction and to avoid collusion with the said vehicle, gave dash to the stationary tipper causing accident wherein Ranu sustained grievous injuries and succumbed to same.
5) On the basis of report, offence was registered against deceased Ranu. Respondent no.3 is owner of the tipper, which was insured with appellant. The claim petition was filed by widow of deceased Ranu for herself, her minor daughter and parents of deceased were made as original respondent nos.3 ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 ::: 4 fa933.17 and 4. The claim petition was accordingly filed for grant of compensation to the extent of Rs.8,00,000/- with interest at the rate of 12% per annum from the date of accident till realization of amount. During pendency of present appeal, original respondent no.3 Madhukar died on 15/3/2016 as mentioned in Civil Application No. 2955/2017 filed by respondent nos.1 and 2 seeking permission to withdraw the amount.
6) The learned Tribunal awarded compensation of Rs.8,15,000/- inclusive of no fault liability along with interest at the rate of 8% per annum from the date of petition, i.e. 30/11/2010 till realization of amount, which award has been challenged by appellant Insurance Company.
7) It is the case of respondent no.3, owner of tipper, as revealed from his written statement (Exh. 20) that the accident took place due to sole negligence of deceased Ranu as he himself gave dash to stationary tipper, which was parked at the correct side of the road. Similar is the case of appellant insurer as revealed from its written statement (Exh. 17) that accident ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 ::: 5 fa933.17 occurred due to negligent driving of deceased Ranu himself. It is, therefore, the case of appellant and respondent no.3 that claimants are not entitled for any compensation as no negligence can be attributed to the driver of tipper involved in this accident.
8) Smt. Naik, learned Counsel for appellant, has contended that according to contents of spot panchanama (Exh. 31) and first information report (Exh. 30), negligence on the part of deceased Ranu alone can be said to be established and that both these documents came to be exhibited in the evidence of claimant wife. It is thus submitted that no liability can be fastened upon the appellant/insurer of tipper.
9) In the background of facts as above, it is material to note from the written statement (Exh. 17) of the appellant that fact of tipper bearing Registration No. MHG-6349 having been insured with appellant is not disputed, as according to its written statement, same was insured vide Insurance Policy No.182300/31/2010/21125 for the period from 26/3/2010 to ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 ::: 6 fa933.17 25/3/2011, as such said tipper was duly insured with appellant on the date of accident, which has occurred on 17/6/2010. In that view of the matter, there appears no substance in the case of appellant that insurance policy does not cover risk of alleged accident and no liability thus can be fastened on the appellant or the liability can solely be fastened on respondent no.3/ owner of vehicle.
10) From the spot panchanama, involvement of tipper bearing Registration No. MHG-6349 and motor-cycle bearing Registration No. MH-27/T-971 has duly been established. From spot panchanama and first information report, it is established that accident occurred involving said two vehicles wherein deceased Ranu sustained grievous injuries, to which he succumbed. Needless to say that there is no challenge to the case of claimants that income of deceased was only to the extent of Rs.40,000/- per annum and thus, they filed claim petition under Section 163-A of the Act.
11) In the circumstances, admitted facts involved in the
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7 fa933.17
appeal are that accident took place on 17/6/2010 involving tipper bearing Registration No. MHG-6349 and motor-cycle driven by deceased bearing Registration No. MH-27/T-971 wherein he sustained grievous injuries and succumbed to them. It is not in dispute that at the time of accident income of deceased Ranu was Rs.40,000/- per annum, which case in fact has been further substantiated from the evidence of claimant wife. Neither appellant nor respondent no.3/owner of vehicle has adduced any evidence which, in view of above admitted facts, and since the claim was under Section 163-A of the Act, was even otherwise not found necessary, to establish negligence or wrongful act or default on the part of deceased Ranu. By now, law on the point of grant of compensation under the provisions of Section 163-A of the Act is well settled. The procedure of giving compensation under Section 163-A of the Act is inconsistent with the procedure prescribed for awarding compensation on fault liability. Under Section 163-A of the Act compensation is awarded without proof of any fault while for getting compensation on the basis of fault liability, claimant is ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 ::: 8 fa933.17 required to prove wrongful act, neglect or default of the owner of vehicle concerned. As such, application under Section 163- A of the Act cannot be tried as an application under Section 166 of the Act by the Tribunal. Therefore, the Insurance Company is not entitled to insist that the claimants shall have to prove negligence and the Insurance Company may be given an opportunity to disprove the said facts. Similarly, in respect of the income part also, the Insurance Company is not entitled to have any opportunity to lead any evidence or to prove a right of cross-examination while deciding an application under Section 163-A of the Act. Thus, it is noted that purpose of Section 163-A of the Act is to award compensation without having to prove negligence of the driver of the vehicle. However, the accident has to be proved. The ownership and insurance of the vehicle has to be proved. The age and income of the deceased has to be proved and it is only thereafter that award can be announced. It also must be proved that the claimants are the legal representatives of the deceased. It is only thereafter that the Court can make the calculation.
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9 fa933.17 12) In the appeal in hand, respondents/original
claimants from the documents and evidence on record have established that accident took place on 17/6/2010 involving tipper bearing Registration No. MHG-6349 and motor-cycle bearing Registration No. MH-27/T-971 wherein Ranu died. The fact that tipper is owned by respondent no.3 and insured with appellant Insurance Company is established as not disputed by insurer. Similarly, there is no challenge to age and income of deceased Ranu to the extent of Rs.40,000/- per annum.
13) Having considered aforesaid facts, it is implicitly proved on record that deceased died in the motor vehicle accident involving above numbered vehicles. Considering age of deceased Ranu as 26 years, as per Second Schedule to Section 163-A of the Act, multiplier of 18 would thus be applicable in the instant appeal. Admittedly, respondents/ original claimants were dependent upon deceased Ranu and hence, 1/3rd amount is required to be deducted from the annual income of the deceased. Therefore, taking into ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 ::: 10 fa933.17 consideration annual income of Rs.40,000/- and on deducting 1/3rd amount of Rs.13,333/- from it, income of deceased Ranu is required to be held as of Rs.26,666/- per annum, which on applying multiplier of 18, comes to Rs.4,79,988/- as total dependency. In addition to above amount, respondents/ claimants are entitled to Rs.40,000/ towards consortium and Rs.15,000/- towards funeral expenses. As it goes unchallenged that at the time of death of deceased, his wife was pregnant and has given birth to respondent no.2, the new born cannot see her father, therefore, claimants are granted very meagre amount of Rs.50,000/- on this count.
14) In the result, the impugned judgment and award dated 30/4/2015 passed by learned Member, Motor Accident Claims Tribunal, Amravati in M.A.C.P. No.482/2010 is modified as under :
The appellant Insurance Company and respondent no.3 are jointly and severally directed to pay amount of compensation of Rs.5,84,988/- (rounded to Rs.5,85,000/-) along with interest at the rate of 8% per annum from the date ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 ::: 11 fa933.17 of petition, i.e. 30/11/2010 till realization of entire amount to claimants/respondent nos.1, 2 and 5.
The above amount be disbursed to respondent nos.1, 2 and 5 according to apportionment made by the learned Tribunal except for 10% of amount of compensation made payable to original respondent no.4 Madhukar Pavanaji Ghule, father of deceased Ranu, since dead during pendency of present appeal. The said amount of 10%, therefore, be paid to respondent no.5 Smt. Nalubai wd/o Madhukar Ghule.
The amount be disbursed after period of appeal is over.
On making application before Registrar (Judicial) of this Court, the appellant Insurance Company is entitled to claim refund of balance amount as total amount deposited by appellant is Rs.11,59,210/-.
The appeal is thus partly allowed in the above terms with no order as to costs.
JUDGE khj ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 00:39:01 :::