Bombay High Court
Sabiya Abdul Hameed vs Sheshrao Bhalerao & Ors on 18 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1208 OF 2003
WITH
CIVIL APPLICATION NO. 10077 OF 2003
WITH
CIVIL APPLICATION NO. 2011 OF 2011
New India Assurance Co. Ltd.
Through its Divisional Manager
Adalat Road, Aurangabad
For Branch Manager, Parbhani
ig ...Appellant
versus
1. Smt. Sabiha w/o Abdul Hamid
Age 35 years, Occ. Household,
R/o. Gulsanabag, Parbhani
Taluka and District Parbhani .
2. Dilshad Begum d/o Abdul Hamid
Age 16 years, Minor Occ. Nil,
3. Ibrahim s/o Abdul Hamid
Age 15 years, Minor, Occ. Nil
4. Moin s/o Abdul Hamid
Age 9 years, Minor, Occ. Nil
5. Afrin Begum d/o Abdul Hamid
Age 9 years, minor, Occ. Nil
6. Amina Begum d/o Abdul Hamid
Age 6 years, Minor, Occ. Nil
Appellant Nos. 2 to 6 are minors
under guardianship of real mother
Sabina w/o Abdul Hamid i.e.
appellant No. 1 R/o. As above
7. Sheshrao s/o Bapurao Bhalerao
Age major, Occ. Business & Agri.
Owner of Jeep No. MH-22/4134.
Taluka and District Parbhani ...Respondents
.....
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Mr. S.G. Chapalgaonkar, advocate for the appellant
Mrs. A.N. Ansari, advocate for respondent Nos. 1 to 6
Mr. M.P. Kale, advocate for respondent No.7.
.....
WITH
FIRST APPEAL NO. 599 OF 2004
1. Smt. Sabiha w/o Abdul Hamid
Age 35 years, Occ. Household
R/o. Gulsanabag, Parbhani
Tq. and District Parbhani.
2. Dilshad Begum d/o Abdul Hamid
Age 16 years, Minor Occ. Nil
3.
Ibrahim s/o Abdul Hamid
Age 15 years, Minor, Occ. Nil
4. Moin s/o Abdul Hamid
Age 10 years, Minor, Occ. Nil
5. Afrin Begum d/o Abdul Hamid
Age 10 years, Minor, Occ. Nil
6. Amina Begum d/o Abdul Hamid
Age 6 years, Minor, Occ. Nil
Appellant Nos. 2 to 6 are minors
under guardianship of real mother
Sabina w/o Abdul Hamid i.e.
appellant No. 1 R/o. As above ...Appellants
versus
1. Sheshrao s/o Bapurao Bhalerao
age major, Occ. Business and
Agriculture, Owner of
Jeep No. MH-22/4134.
R/o Dhar Road, Parbhani,
Tq. and District Parbhani
2 New India Assurance Co. Ltd.
"Yeshodip Building", Shivaji Road,
Parbhani ...Respondents
.....
Mrs. A.N. Ansari, advocate for the appellants
Mr. M.P. Kale, advocate for respondent No.1
Mr. S.G. Chapalgaonkar, advocate for respondent No.2
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.....
CORAM : V. K. JADHAV, J.
DATED : 18th APRIL, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award passed by
learned Member M.A.C.T. Parbhani dated 29.4.2003 in MACP
No.114 of 2001, original respondent No.2 insurer has preferred first
appeal No. 1208 of 2003, whereas the original claimants have
preferred first appeal No. 599 of 2004 to the extent of quantum.
2. Brief facts, giving rise to the present appeals, are as under:-
I) On 16.2.2001, deceased Abdul Hamid was going on his
cycle rickshaw on Jintur road. At that time, one jeep
bearing registration No. MH-22-4134 came in fast speed
and gave dash to the cycle rickshaw of deceased Abdul
Hamid. In consequence of which, deceased Abdul Hamid,
who was pulling said cycle rickshaw, was thrown on the
road. He had sustained various injuries. He was
immediately shifted to Civil Hospital at Parbhani and
thereafter, to Government Hospital at Aurangabad.
However, he succumbed to the injuries on 22.2.2001.
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II) The legal representatives of deceased Abdul Hamid
preferred claim petition for grant of compensation under
various heads. Respondent No.1 is the owner of said
vehicle-jeep, had not appeared in the claim petition though
duly served in the matter and therefore, hearing of the claim
petition ordered to be proceeded ex parte against him.
Respondent No.2-insurer has strongly resisted the claim by
filing written statement at Exh.12. It is contended that the
driver of vehicle-jeep did not have valid licence at the time
of accident and therefore, respondent No.2-insurer is not
liable to pay compensation. Learned member of the
Tribunal, by its impugned judgment and award dated
29.4.2003, partly allowed the claim petition with
proportionate costs and thereby directed the respondents
jointly and severally to pay amount of Rs.1,67,000/- to the
claimants along with interest.
III) Being aggrieved by the said judgment and award, the
original claimants have preferred first appeal No. 599 of
2004 and the respondent-insurer has preferred first appeal
No. 1208 of 2003, as the tribunal has not considered the
defence raised by the insurer.
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3. Learned counsel for the appellants original claimants submits
that deceased Abdul Hamid was driver by occupation and he was
earning Rs.3000/- per month. The driving licence possessed by
deceased was placed before the tribunal. Though the Tribunal has
accepted that deceased was driver by occupation, in absence of any
proof of income, considered his annual income as Rs.15,000/- as
non earning member of the family. Learned counsel submits that the
Tribunal has not awarded just compensation under non pecuniary
heads. The Tribunal has deducted 1/3 rd amount from his income
towards personal expenses. Learned counsel submits that
considering the fact that deceased Abdul Hamid was the only bread
earning member of the family and that there are six dependents on
his earning, the Tribunal should have deducted 1/5 amount from his
total income towards personal expenses.
4. Learned counsel for the respondent-insurer submits that in
absence of any income proof, the Tribunal has rightly considered
income of deceased Abdul Hamid at Rs.15,000/- per year. During
pendency of the appeal, claimant No.4 died and therefore, deduction
to the extent of ¼th towards his personal expenses would be
appropriate at this stage. Learned counsel submits that driver of the
jeep was holding learner's driving licence in the year 1998 and at the
time of accident, he was not having valid and effective driving
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licence. The insurer has accordingly examined two witnesses on this
point to substantiate the said contention. Witness No.1 is
investigator appointed by the insurer and witness No.2 is an
employee of Regional Transport office. The evidence is consistent
and it is clear that the driver of jeep was not having valid and
effective driving licence at the time of accident.
5. Learned counsel for the respondent owner submits that the
Tribunal has rightly passed award against the respondent-insurer
and directed to pay the compensation jointly and severally to the
claimants. Learned counsel submits that in the crime registered by
the police, no charges are levelled against the driver of jeep under
relevant provisions of Motor Vehicles Act. Learned counsel submits
that the Tribunal has rightly awarded compensation and respondent
insurer is required to pay the compensation jointly and severally
along with respondent-owner.
6. So far as grant of compensation in this case is concerned,
though deceased Abdul Hamid was having driving licence to drive
the motor vehicle, the Tribunal has considered his income as non
earning member of the family. Deceased Abdul Hamid was the
bread earner of the family and besides a widow, there are five minor
claimants depending upon his income only. In absence of any proof
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of income, the Tribunal ought to have considered his notional
income. According to the claimants, deceased was earning
Rs.3000/- p.m., however, learned counsel for the insurer has rightly
pointed out that in the year 2001, at the most, the income of
deceased would be considered at Rs.2000/- p.m. and not more than
that. Claimant No.4 died during pendency of the appeal and
therefore, at present, there are 5 dependents. In view of the
judgment of the Hon'ble Supreme Court in the case of Sarla Verma
and others vs. Delhi Transport Corporation and another- 2009
(5) Mh.L.J. 775, and more particularly in view of observations made
in para 30, 1/4th deduction towards personal expenses of deceased
Abdul Hamid would be appropriate in this case. It is not disputed that
deceased Abdul Hamid was 40 years old at the time of his accidental
death. Hence, the appropriate multiplier would be 15. In view of this,
if income of deceased Abdul Hamid is considered at Rs.2000/- per
month, which corresponds to Rs.24,000/- per year. After deducting
¼th amount towards his personal expenses, his annual income
comes to Rs.18,000/- and after applying the multiplier 15, total loss of
future income/dependency comes to Rs.2,70,000/-.
7. It appears that the Tribunal has not awarded any
compensation for loss of love and affection so far as the minor
claimants are concerned. Considering the date of accident, it would
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be appropriate if the amount of Rs.20,000/- (Rs. 5000/- each for
claimant Nos. 2, 3, 5 and 6) is awarded. The Tribunal has also
awarded very meager amount towards loss of consortium, the same
is increased at Rs.10,000/- more i.e. Rs.15,000/-. The accident had
taken place on 16.2.2001. However, after the accident, deceased
Abdul Hamid was taken to Civil Hospital, Parbhani and from there to
Government Hospital, Aurangabad, where he succumbed to the
injuries on 22.2.2001. Considering these facts, it would be
appropriate if Rs.10,000/- more is added to the amount of funeral
expenses.
8. Thus, the breakup of compensation under different heads
which can be broadly summarized as under:-
i) Loss of future income/dependency Rs.2,70,000.00
ii) Loss of consortium Rs. 15,000.00
iii) Loss of love and affection for
(Rs.5,000/- each) Rs. 20,000.00
iv) Funeral expenses Rs. 12,000.00
-----------------------
Total Rs.3,17,000.00
-----------------------
Thus, the claimants are entitled to Rs.3,17,000.00 as total
compensation.
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9. After perusal of record and proceedings and the oral as well as
documentary evidence adduced by the insurer, it is clear that the
driver of the jeep, involved in the accident, was not having valid and
effective driving licence at the time of accident. It is not the case that
the driver was not having driving licence at all. In the year 1988, he
was having driving licence to drive motor vehicle, however, the same
was learning driving licence and it appears that even though he was
driving the motor vehicle, he failed to obtain permanent licence. The
Apex Court in the case of S. Iyyapan vs. M/s. United India
Insurance company Ltd. and Anr. reported in AIR 2013 SC 2262,
in para 17 of the said judgment, has made the following
observations:-
"17. The heading "Insurance of Motor Vehicles against Third
Party Risks" given in Chapter XI of the Motor Vehicles Act,
1988 itself shows the intention of the legislature to make third
party insurance compulsory and to ensure that the victims of
accident arising out of use of motor vehicles would be able to
get compensation for the death or injuries suffered. The
provision has been inserted in order to protect the persons
travelling in vehicles or using the road from the risk attendant
upon the user of the motor vehicles on the road. To overcome
this ugly situation, the legislature has made it obligatory that no
motor vehicle shall be used unless a third party insurance is in
force.
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10. In view of the above observations, respondent No.2 insurer
shall pay entire amount alongwith interest to the claimants and then
recover the same from the respondent-owner.
11. In view of this, I proceed to pass the following order:-
ORDER
I. Both the first appeals i.e. first appeal No. 1208 of 2003 and
first appeal No. 599 of 2004 are hereby partly allowed.
II. The judgment and award dated 29.4.2003 passed by the
Ex Officio Member, M.A.C.T. Parbhani in M.A.C.P. No. 114
of 2001 is hereby modified in the following manner:-
The original respondent No.1-owner shall pay an amount
of Rs.3,17,000/- (Rupees Three lacs seventeen thousand
only) to the claimants, including the amount of no fault
liability, alongwith interest @ 9% p.a. from the date of
application till realization of entire amount. Original
respondent No.2-insurer shall pay the entire amount as per
the award alongwith interest to the claimants and then
recover it from respondent No.1-owner Shri Sheshrao
Bapurao Bhalerao.
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III. It is not necessary for respondent No.2 insurer to initiate
independent proceeding for recovery of said amount from
respondent No.1 owner.
IV. Rest of the judgment and award stands confirmed.
V. The award be drawn up in tune with the modified award.
12. In response to the order passed by this Court the appellant-
insurer in first appeal No. 1208 of 2003 has deposited compensation
amount before this Court. The claimants are permitted to withdraw
the same in proportionate, as determined by the Tribunal, alongwith
accrued interest, if any.
13. In view of disposal of first appeals, pending civil applications
are also disposed of.
( V. K. JADHAV, J.)
rlj/
