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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
1) FIRST APPEAL No.357 OF 2006 WITH
2) FIRST APPEAL No.718 OF 2006 WITH
3) FIRST APPEAL No.727 OF 2006 AND
4) FIRST APPEAL No.729 OF 2006
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FIRST APPEAL No.357 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
1. Paikaji s/o. Asuji Lambade,
Age - 47 years, Occ. Labour.
2. Sau. Vatsala Paikaji Lambade,
Age 40 years, Occ.-Household.
3. Akash s/o. Paikaji Lambade,
Age 15 years, Occ.: Education.
Respondent No.3 minor
representing by his natural
Guardian Father i.e. non-applicant No.1.
All R/o. Anand Nagar, Kothari, Tahsil-Ballarpur,
District - Chandrapur.
4. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 3.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.3.
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WITH
FIRST APPEAL No.718 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
1. Mohammad Karim Kureshi,
Aged about 46 years, Occ.: Nil.
2. Rabiya w/o. Mohammad Kureshi,
Aged about 39 years, Occ.-Household.
3. Sufiya d/o. Mohammad Kureshi,
Aged about 17 years, Occ.: Education.
4. Salim s/o. Mohammad Kureshi,
Age about 15 years, Occ.- Education.
5. Sakinabee Karim Kureshi,
Aged about 60 years, Occu.: Nil,
Applicant Nos.3 and 4 are being minors,
represented by their natural
guardian father i.e. non-applicant No.1.
All R/o. Bazar Ward 5, Kothari,
Tq. Ballarpur, Distt. - Chandrapur.
6. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 4.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.6.
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WITH
FIRST APPEAL No.727 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
1. Sheikh Daut Shiek Ismile Sheikh,
Aged 45 years, Occ.-Nil.
2. Khurshidbano Sheik Daut Shiek,
Age 40 years, Occ.-Household.
3. Pravinbano Sheik Daut Sheikh,
Age 28 years, Occ.-Household.
4. Shahida Sheik Daut Shiek,
Age 17 years, Occ.- Education.
Respondent No.4 minor
representing by her natural
guardian Father i.e. non-applicant No.1.
All R/o. Kunbi Ward No.2 ,
Kothari, Tah. Ballarpur,
District - Chandrapur.
5. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 4.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.5.
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AND
FIRST APPEAL No.729 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
Respondent No.1 is
1. Sudhakar s/o. Maroti Amade (deleted)
deleted as per Courts
order dt.4.7.2017. Age 46 years, Occ.- Labour.
2. Sau. Sheela w/o. Maroti Amade,
Age 47 years, Occ.-Household.
3. Ku. Madhuri d/o. Sudhakar Amade,
Age 15 years, Occ.: Education.
4. Ku. Bhagyashree d/o. Sudhakar Amade,
Age 15 years, Occ.- Education.
Respondent Nos.3 and 4 minor
representing by his natural
Guardian Father i.e. non-applicant No.1.
All R/o. In front of Government Hospital
Kothari, Tah. Ballarpur,
District - Chandrapur.
5. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 3.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.5.
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CORAM : S.B. SHUKRE, J.
rd DATE : 3 NOVEMBER, 2017 & nd NOVEMBER, 2017.
22ORAL JUDGMENT :
1. These appeals are being disposed of by a common judgment as the claims involved in these appeals arise out of the same accident and the issues involved are also common.
2. These appeals question the legality and correctness of the judgment and order dated 30th August, 2005 , rendered in MACP Nos.133/2002, 132/2002 and Judgment and order dated 31 st August, 2005, rendered in M.A.C.P. Nos.134/2002, 135/2002, by the Motor Accident Claims Tribunal, Chandrapur.
3. These four appeals have been filed taking an objection that in cases like these, no order of pay and recover could have been passed by the Tribunal against the appellant.
4. I have heard Shri Sahare holding for Shri S.S. Sanyal, learned counsel for the appellant in all these appeals, Shri B.B. Raipure, learned counsel for the claimants in these appeals and Ms. Aakanksha holding for Shri Anilkumar, learned counsel for the owner of the offending vehicle. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 6/18 (For the sake of convenience, the appellant, claimants and the owner are being hereinafter referred to as the insurance company, claimants and owner of the offending vehicle respectively.)
5. I have also gone through the record of these cases including the impugned judgment and order.
6. Now, following points arise for my determination :
i) Whether the insurance company is liable to pay compensation and if not, whether it could be directed to first pay and recover later ?
ii) Whether the compensation awarded by the Tribunal is just and proper ?
7. It is seen from the record that the accident in the present case occurred on 10th May, 2002, when a mini-truck bearing registration No.MH-34-A-6503 belonging to the cross-objector/owner of the offending vehicle and insured with the appellant carrying 31 passengers in its body, bumped off the speed breaker on Ballarpur to Alapalli road, near village Enbodi at about 10.30 p.m. As a result, several passengers of the truck sustained injuries and some of them later on succumbed to those injuries. In the present appeals, which involve death claims, the deceased were Dinesh Paikaji Lambade (First Appeal No.357/2006), Firoz Sheikh Mohammad Kureshi (First Appeal No.718/2006), Jahir Sheikh Daut Sheikh (First Appeal No.727/2006) and Santosh Sudhakar Amade (First Appeal No.729/2006). At the time of their death, they were aged about 18 years, 20 years, 22 years and 20 years respectively. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 7/18 The claim petitions under Section 166 of the Motor Vehicles Act were filed by their parents and other dependents. The owner as well as the insurance company resisted these claim petitions by filing their respective written statements. However, no evidence was adduced by either the owner of the offending vehicle or by the insurance company in support of their respective defences. On merits of the cases, the Tribunal found that the claimants were entitled to receive compensation only from the owner of the offending vehicle, but also found that in the facts of these cases, the insurance company should first pay the compensation amount and then recover it from the owner of the offending vehicle. Accordingly, the claim petitions were partly allowed and the impugned judgments and orders were passed.
8. It is the contention of the learned counsel for the appellant that since there was a fundamental breach of the insurance policy no order of pay and recover later should have been passed against the insurance company by the Tribunal. Learned counsel for the owner of the offending vehicle submits that the deceased persons being the representatives of the owner of the goods being carried by the offending vehicle, their risk was covered under the insurance policy and, therefore, the insurance company should also have been held to be liable to pay compensation along with the owner of the offending vehicle. She also submits alternately that she supports the order of pay and recover ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 8/18 passed by the Tribunal. In the opinion of the learned counsel for the claimants, although the order of pay and recover is properly passed, the compensation granted in the present case is inadequate and even though in these appeals, no cross-objection has been filed by any of the claimants, as held in the case of Jitendra Khimshankar Trivedi and others vs. Kasam Daud Kumbhar and others, reported in 2015(1) T.A.C. 673 (S.C.), this Court would have to consider granting of fair and reasonable compensation and as such, it can certainly enhance the compensation awarded by the Tribunal.
9. I would have accepted argument of learned counsel for the owner of the offending vehicle that the deceased persons were travelling by the offending vehicle as representatives of the goods being transported by the vehicle, had there been any evidence based upon a specific plea taken in that regard present on record of the case. In the present case, only one witness has been examined in each of the cases and the witness has been examined in each of these cases only by the respective claimants. No witness has been examined by the owner of the offending vehicle. The owner of the offending vehicle, has not raised any specific plea that the driver of the offending vehicle carried the passengers without his knowledge. It was also not his case that he did not give the offending vehicle to Gohokar or Bahekar family on hire and it was also not his case that deceased persons were travelling by the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 9/18 offending vehicle as owners of the goods or representatives of the owner of the goods. No specific pleas in this regard were taken and as said earlier, there has been no evidence adduced in this regard and it could also not have been adduced in the absence of any specific defence having been taken by the owner of the offending vehicle. In such a case, it has to be held that the deceased persons were travelling by the offending vehicle only as gratuitous passengers. Now the question would be whether any risk of gratuitous passengers was covered under the insurance policy and the answer, considering the evidence available on record, has to be recorded as in the negative. The premium that was accepted was for covering the liability arising out of damage to the vehicle and also out of any injuries or death claims in respect of the driver, coolie or other employees, in connection with the maintenance, operation or loading and unloading of the goods from the motor vehicle, which included in all six persons. Obviously, risk of gratuitous passengers was not covered under the insurance policy. The Tribunal has made a detailed discussion in this regard in its impugned judgment and order by referring to the evidence available on record as well as the insurance policy and certificates of insurance. The Tribunal has found that the insurance policy does not cover the liability of the gratuitous passengers and in the context of what has been noted earlier I have no reason to take any different view.
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10. Such being the nature of evidence, the inevitable conclusion would be that the risk of the gratuitous passengers which the deceased persons were in the present case, was not covered by the insurance policy and, therefore, it has been rightly held by the Tribunal in all these four cases that the insurance company was not liable to pay any compensation to the dependents of the deceased persons, who filed claim petitions under Section 166 of the Motor Vehicles Act.
11. Now, what falls for consideration is, whether the order of pay and recover could have been passed or not in the present cases. There is no dispute about the fact that such an order in principle can be passed by the Tribunal. There is also no dispute about the fact that it is not that in every case such an order, as a matter of course, must be passed by the Tribunal. In the present cases, the Tribunal has passed such an order by exercising its discretion. If some discretionary relief has been granted by a Court below, it would not be proper for this Court to withdraw the relief so granted unless it is shown that such discretion was not available or that it has been exercised in an arbitrary or manifestly illegal manner. Such relief cannot be surely taken away just because another view is possible. Learned counsel for the insurance company could not show to me that the relief so granted by the Tribunal is manifestly illegal or is the result of arbitrariness committed by the Tribunal. Another view of not granting such a relief may be possible but only because such a view is ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 11/18 possible, it would not be appropriate for this Court to take that view, especially when arbitrariness or commission of patent illegality is not seen. Therefore, I do not see any reason for making interference with the order of pay and recover passed by the Tribunal against the insurance company in all these four cases. The first point is answered accordingly.
12. In each of these four appeals, a cross-objection had been filed only by the owner of the offending vehicle and that too on the point of need for imposition of liability also upon the insurance company. All these cross-objections stood dismissed for want of removal of office objections within a permissible limit, by the order of Registrar (Judicial) of this Court. The claimants, however, have not filed any cross-objection in order to seek enhancement in compensation. But, as held by the Hon'ble Apex Court in the case of Jitendra Khimshankar Trivedi and others vs. Kasam Daud Kumbhar and others, reported in 2015(1) T.A.C. 673(S.C.), the mandate of Section 168 of the Motor Vehicles Act being to "pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards." notwithstanding no appeal or cross-objection having been filed by claimants, "it is obligatory on the part of Courts/Tribunals to award just and reasonable compensation." I am, therefore, of the view that learned counsel for the claimants in all four cases can be heard on the question of grant of just and fair compensation even if it means granting enhanced ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 12/18 compensation without filing of appeal or cross-objection and accordingly, the hearing has been granted not only to the claimants, but also to the insurance company and the owner of the offending vehicle.
13. It is submitted by the learned counsel for the claimants that the income of the deceased persons has not been appropriately determined, however, I do not see any merit in the contention. In these four cases, only one witness each has been examined by the claimants and their evidence suggests that all the deceased persons were in the age group of 18 to 22 years and were students. Some of the witnesses have stated additionally that they were also working as labourers. But, such additional evidence cannot be accepted once it is asserted by the witnesses themselves that the deceased persons were studying either in 10th Standard or 12th Standard. While pursuing such kind of education, performance of labour work is not possible as attendance in the schools/colleges is compulsory and it is for substantial number of hours during day time of every academic day. Therefore, the concept of notional income would have to be employed in the present case and it has been rightly adopted by the Tribunal. Going by the principle of notional income, the Tribunal has determined the income of each of the deceased persons to be at Rs.15,000/- p.a. and deducting 1/3 rd amount for the own expenses, the Tribunal has arrived at the annual dependency to be at Rs.10,000/- p.a. The Tribunal has applied the multiplier of '13' ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 13/18 or '15' in these cases. However, in all these cases, the Tribunal has not considered any income on account of future prospects. It is also seen that the selection of multiplier was not based upon the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121. Therefore, a correction in this regard seems necessary which is made in the subsequent paras.
14. Annual income on notional basis of the deceased persons would have to be taken at Rs.15,000/- p.a. Since this income has been determined by considering the deceased persons to be falling in the category of self employed persons as eventually they would have at least earned their livelihood by performing labour work, addition of 40% of the established income would have to be made as per the latest law of the Hon'ble Apex Court laid down in the case of National Insurance Company Limited vs. Pranay Sethi and others, passed in Special Leave Petition (Civil) No.25590 of 2014, decided on 31st October, 2017. The appropriate multiplier as per Sarla Verma's case would have to be applied. In addition, amount of Rs.15,000/- as per Pranay Sethi and others (supra) on account of funeral expenses will also have to be allowed. However, no compensation can be granted under the other additional heads of loss of consortium and loss of estate, as the deceased were unmarried and students whose income has been determined on notional basis. Thus, calculated the compensation payable to the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 14/18 claimants in all these four appeals would be as follows :
First Appeal No.357/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18' X 18
(deceased was 18 years at the
time of accident (10,500 X 18)
----------------
Rs.1,89,000/-
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
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First Appeal No.718/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18' X 18
(deceased was 20 years at the
time of accident (10,500 X 18) ----------------
Rs.1,89,000/-
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
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First Appeal No.727/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18'
(deceased was 22 years at the X 18
time of accident (10,500 X 18) -----------------
Rs.1,89,000
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
=======
First Appeal No.729/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18' X 18
(deceased was 20 years at the
time of accident (10,500 X 18) ----------------
Rs.1,89,000/-
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
=======
15. Thus, in each of these cases, the claimants would be entitled to receive the afore-stated amounts as final compensation inclusive of no fault liability amount together with interest at the rate of 9% p.a. from the date of petition till actual realization from the cross-objector/owner ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 16/18 of the offending vehicle.
16. However, in the interest of justice, the insurance company i.e. appellant in all these appeals would also have to be directed to first pay the compensation amount to the claimants and then recover it later from the owner of the offending vehicle in accordance with law. The second point is answered accordingly.
17. In the circumstances, the appeals would have to be dismissed, with slight modification of the impugned judgment and order as made in the subsequent paragraph.
18. The appeals stand dismissed.
19. Oral prayer made by the claimants in these appeals for grant of just and fair compensation, however, is granted in the following terms :
(A) In First Appeal No.357/2006, the claimants shall be entitled to receive Rs.2,04,000/- as compensation together with interest at the rate of 9% p.a from the date of petition till actual realization, which shall be inclusive of amount on account of no fault liability from the owner of the offending vehicle.
(B) In First Appeal No.718/2006, the claimants shall be entitled to receive Rs.2,04,000/- as compensation together with interest at the rate of 9% p.a from the date of petition till actual realization, which shall be inclusive of amount on account of no fault liability from the owner of the offending vehicle. ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 ::: J-fa357.16,718.06,727.06&729.06..... .odt 17/18 (C) In First Appeal No.727/2006, the claimants shall be entitled to receive Rs.2,04,000/- as compensation together with interest at the rate of 9% p.a from the date of petition till actual realization, which shall be inclusive of amount on account of no fault liability from the owner of the offending vehicle.
(D) In First Appeal No.729/2006, the claimants shall be entitled to receive Rs.2,04,000/- as compensation together with interest at the rate of 9% p.a from the date of petition till actual realization, which shall be inclusive of amount on account of no fault liability from the owner of the offending vehicle.
22. In the interest of justice, the insurance company i.e. the appellant is directed to first pay compensation so determined by this judgment to the claimants in each of the appeals and recover it later from the owner of the offending vehicle in accordance with law.
23. It is directed that the amounts deposited by the insurance company in this Court shall be transferred to the Reference Court and the Reference Court shall not allow the claimants to withdraw these amounts till the owner of the offending vehicle furnishes security for the entire amount of compensation granted in each of these cases and all the directions given by the Hon'ble Apex Court in the case of Pramod Kumar Agrawal and another vs. Mushtari Begum (Smt) and others, reported in (2004) 8 SCC 667 are complied with.
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24. Additional Court fees, if any, shall be paid within two months from the date of order in each of the appeals.
JUDGE okMksns ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:28:02 :::