The Oriental Insurance Company vs Smt. Kalavati W
2013 Latest Caselaw 328 Bom

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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

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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

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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,

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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

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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

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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 !!

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