Bombay High Court
New India Assurance Company Ltd. vs Smt. Shashikalabai Wd/O Manohar ... on 25 January, 2008
Equivalent citations: 2008 (3) BomCR 173
Author: C Pangarkar
Bench: C Pangarkar
JUDGMENT
C.L. Pangarkar, J.
1. This is an appeal by original respondent No. 3 the Insurance Company.
2. The facts giving rise to this appeal are as follows On 15/5/1989, deceased Manohar was proceeding towards Amravati by Nagpur . Amravati road near Borgaon. He was riding a Scooter and was following the left side of the road. It is alleged that the truck driven by original respondent No. 1 came from the opposite direction, gave a dash to the Scooter and then the truck turned turtle and fell on one side. The deceased suffered injuries and died. The deceased was 33 years old when he died. He was running a cloth shop and was undertaking contracts of construction etc. His monthly income was Rs. 2500/-. The claimants are the wife, children and mother of said Manohar. The claimants claimed a compensation of Rs. 5,00,000/-. Except original respondent No. 3, none appeared in the claim petition and were proceeded ex parte.
3. Respondent No. 3 Insurance Company has filed written statement and has denied that the accident had taken place due to the negligence on the part of the driver of the truck. It denied that the truck had given a dash to the scooter and the deceased was thrown away and scooter was crushed under the truck's body. The respondent also denies that deceased was carrying on cloth business and was a contractor and his income was Rs. 2500/- per month.
4. The respondent does not dispute that the truck was insured with it and that, respondent No. 4 is the owner of the truck. It is contended that deceased Manohar was not having a proper driving licence nor the truck driver had proper driving licence. Therefore, it is the contention of respondent No. 3 that there was a breach of the Insurance policy and therefore, respondent No. 3 is not liable to reimburse the owner and pay the compensation.
5. The learned judge of the Tribunal found that the accident had taken place due to the negligence on the part of the driver of the truck. The income of the deceased was Rs. 1800/-per month and considering the age, the learned judge applied a multiplier of 14 and awarded the compensation of Rs. 2,01,600/-.
6. I have heard the learned Counsel for the appellant and the respondent No. 1 to 3.
7. The following points arise for my consideration and I am recording my findings on them.
1. Whether the accident had taken place due to the rash and negligent driving of the driver of the Truck?....Yes.
2. Is the compensation awarded by the Trial court just and proper?....Yes.
3. Was there any breach of the condition of policy?....No.
4. What order?....As per final order.
- REASONS
8. Shri Sohoni, Advocate for the appellant, urged that the Tribunal had committed an error in holding that the accident had taken place as a result of negligence on the part of the truck driver alone. He submitted that the deceased was driving the Scooter at the center of the road and he was, therefore, equally at fault. There is no substance in the argument. The claimants have filed on record the panchanama of the spot (Exh.54). It clearly indicates that the truck had gone to the wrong side and had given dash to the Scooter and the Scooter was crushed under the truck and the truck fell on one side after turning turtle. It clearly indicates that the truck was in excessive speed and was not under the control of driver. It also indicates that it went to the wrong side of the road and hit the deceased. In view of this, I find that the learned judge of the Tribunal did not commit any error in holding that the accident had taken place due to the negligent driving on the part of the driver of the truck i.e. the original respondent No. 1.
9. The next point that was urged by the learned Counsel for the appellant was that the truck driver was not holding any licence to drive the truck and therefore, there was a breach of the condition of the policy. In this regard, it may be mentioned that the Insurance Company did not examine any witness and did not prove that the driver did not have a licence. By catena of decisions, it is now well settled that the burden to prove the fact that the driver did not have a licence lies on the Insurance Company. Since the Insurance Company has not tendered any such evidence, this plea is of no avail to the Insurance Company. Shri Sohoni, learned Counsel for the appellant, then urged that the compensation awarded by the learned judge of the Tribunal errs on higher side. The submission has no force. The learned judge of the Tribunal has held that the monthly income of the deceased was only Rs. 1800/-per month. He had deducted Rs. 600/-and took Rs. 1200/-per month as an income for calculation of the compensation to be awarded. Scheduled II to the Motor Vehicle Act says that where no evidence is available with regard to the actual income of the deceased, it should be taken at Rs. 15000/-per year. In view of this, the learned judge of the Tribunal did not commit any error in calculating the compensation payable to the heirs of the deceased at the rate of Rs. 1200/-per month.
10. Learned Counsel for the appellant then submitted that the multiplier of 14 applied by the Tribunal also errs on higher side. The submission has no force. Age of the deceased at the time of the accident was only 33 years and he has left behind 2 minor children aged 2/3 years, wife aged only 25 years and mother -aged 55 years. Considering the ages of the minor children and the wife, it cannot be said that the learned Judge of the Tribunal committed any error in applying multiplier of 14. In the circumstances, the compensation as awarded by the learned Judge of the Tribunal was just and proper. The award passed by the learned judge of the Tribunal calls for no interference. The appeal is dismissed with costs.
