Bombay High Court
The Oriental Insurance Com Thr ... vs Kailash Vikrama Dhale And 2 Ors on 21 April, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.36 OF 2007
APPELLANT: The Oriental Insurance Company
through its Divisional Manager, Old
Ori. Respondent
Cotton market, Tilak Road, Akola,
No.3. represented by Divisional Manager,
Oriental Insurance Company, Division
Office-II, Civil Lines, Nagpur.
-VERSUS-
RESPONDENTS: 1. Kailash Vikrama Dhale, aged 38 years,
ig Occupation Agriculture, R/o Post
Original
Bhatumara, Tq. And Dist. Washim.
Petitioner No.1
Original Respt. No.1 2. Shrikisan Govinda Kale, aged major,
& 2.
Driver of Tractor No.MTR-4943 r/o Post
Bhatumara Tq. And Dist. Washim.
3. A. M. Kapur, Civil Lines, Washim, Tah.
Dist. Washim.
Mrs. Mrunal Naik, Advocate for the appellant.
Shri R. S. Charpe, Advocate for the respondent No.1.
WITH
FIRST APPEAL NO.271 OF 2008
APPELLANT: The Oriental Insurance Company
Through its Divisional Manager, Old
Ori. Respondent
Cotton market, Tilak Road, Akola,
No.3. (On R.A.) represented by Divisional Manager,
Oriental Insurance Company, Division
Office-II, Civil Lines, Nagpur.
-VERSUS-
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RESPONDENTS: 1. Kisan Janardhan Gaikwad, Aged-30 yrs.,
Occ-Ex-Driver, R/o Asola Jn, Tq and
Original
Dist-Washim.
Petitioner. (On
R.A.)
Original Respts. 2. Shrikisan Govinda Kale, aged - 29, Occ-
(On R.A.) Driver of Tractor no. MTR 4943 R/o
Post-Bhatumara, Tq- and Dist- Washim.
3. Shri Amritpalsing Manoharsingh Kapoor
Aged-Adult, occ-Tractor owner, Civil
lines Washim, Tah. Dist. Washim.
4. Kailash Vikrama Dhale, Aged-41 yrs,
Occ-Driver and owner of Minidor no.MH
37/B-3155 No.1 R/o Post-Bhatumara,
Tq- & Dist- Washim.
ig 5. National Insurance Company, through
Divisional Manager, Br. Akola, Gandhi
Road, Akola, Dist. Akola.
Mrs. Mrunal Naik, Advocate for the appellant.
Shri U. N. Vyas Advocate for respondent No.1.
Shri R. S. Charpe, Advocate for the respondent No.4.
Shri D. N. Kukday Advocate for the respondent No.5.
CORAM: A.S. CHANDURKAR, J.
DATED: 21
st APRIL, 2016.
ORAL JUDGMENT :
1. Since both these appeals arise out of common
judgment dated 8-3-2006 passed in Claim Petition Nos.22/2005
and 29/2005 they are being decided by this common judgment.
2. The facts relevant for adjudication of the appeals are
that on 13-2-2004 one Kailash Dhale who was the owner/driver of
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a Minidor auto while carrying passengers from Washim to Shelu
road was dashed by a tractor-cum-trolley. This tractor was driven
by one Srikisan Kale. The said dash resulting in the accident gave
rise to two claim petitions under Section 166 of the Motor Vehicles
Act, 1988 (for short, the said Act). Said Kailash Dhale filed
M.A.C.P. No.22/2005 against the driver of the tractor-cum-trolley,
its owner and its insurer. He claimed compensation of
Rs.15,00,000/- in said proceedings.
ig One Kisan Gaikwad who was travelling in the aforesaid
Minidor auto filed M.A.C.P. No.29/2005 against the driver of the
tractor-cum-trolley and its insurer. He also joined the driver and
owner of the Minidor auto and its insurer as parties in the claim
petition. He claimed compensation to the extent of Rs.2,50,000/-
from the respondents therein.
3. The Claims Tribunal after considering the evidence led
in both the proceedings came to the conclusion that in M.A.C.P.
No.29/2005 that was filed by Kisan Gaikwad, he was entitled for
compensation of Rs.2,50,000/-. It was held that the tractor-cum-
trolley had contributed to the extent of 75% resulting in the
accident while the Minidor auto had contributed to the extent of
25% in causing the accident. This order is the subject matter of
challenge in First Appeal No.271/2008.
fa36.07.odt.nfa271.07.odt 4/13
In M.A.C.P. No.22/2005 filed by Kailash Dhale an
amount of Rs.10,00,000/- was granted as compensation to be
payable by the owner, driver and insurer of the tractor-cum-
trolley. This order of the Claims Tribunal has been challenged in
First Appeal No.36/2007.
4. Smt. Mrunal Naik, learned Counsel for the appellant
submitted that the Claims Tribunal was not justified in holding the
appellant liable to satisfy the claim. It was submitted that in the
written statement filed by the appellant in M. A.C. P. No.22/2005
a specific stand was taken that the tractor and the trolley were two
different vehicles and that only the trolley was insured with the
appellant. As the accident had been caused by the dash of the
tractor, it could not be said that the appellant was liable to satisfy
the claim. She referred to the evidence on record to indicate that
the appellant had been saddled with the liability despite it not
having insured the vehicle. It was then submitted that the Claims
Tribunal in M.A.C.P. No.29/2005 had held the driver of the tractor
to have contributed to the extent of 75% as the cause of the
accident and the driver of the Minidor auto having contributed to
the extent of 25% resulting in the accident. This finding had been
accepted by the said parties. However, while adjudicating
M.A.C.P. No.22/2005, the Claims Tribunal lost sight of this finding
fa36.07.odt.nfa271.07.odt 5/13
and held the appellant liable to satisfy the entire claim. It was
submitted that such course was not permissible. It was further
urged that the compensation of Rs.10,00,000/- granted in
M.A.C.P. No.22/2005 was without necessary evidence in that
regard and that the Claims Tribunal did not make necessary
calculations while awarding the said amount. In support of
aforesaid submissions, the learned Counsel placed reliance on the
judgment of the Gauhati High Court in Purnanarayan Sinha vs.
Election Commission of India and others 2001(2) T. A. C. 122.
5. Shri R. S. Charpe, learned Counsel for the respondent
No.1 in First Appeal No.36/2007 as well as the respondent No.4 in
the First Appeal No.271/2008 opposed the aforesaid submissions.
According to him, the evidence on record clearly revealed that the
trolley in question was attached to the tractor. Both the said
vehicles were insured by the appellant and in that regard he
placed reliance on the document at Exhibit-41 in M.A.C.P.
No.29/2005. He referred to the material on record to indicate that
the tractor was having only one light and the spot panchanama at
Exhibit-35 indicated the position of the Minidor auto. He then
submitted that the entire negligence was that of the tractor driver
and the Claims Tribunal was not justified in holding the driver of
the Minidor auto to be negligent to the extent of 25%. It was
fa36.07.odt.nfa271.07.odt 6/13
submitted that the amount of Rs.10,00,000/- awarded by the
Claims Tribunal in M.A.C.P. No.22/2005 was on the lower side
and if the entire evidence on record is considered the amount of
compensation is liable to be increased. He relied upon the
disability certificate at Exhibit-36 and submitted that the same
indicated the injuries suffered by the claimant. According to him,
if the proper tests as laid down by the Hon'ble Supreme Court, are
applied, the claimant would be entitled for a higher amount of
compensation. He also referred to the nature of disability suffered
by the claimant which was described as locomotor disability.
According to him, the claimant was not in a position to drive any
vehicle and, therefore, the disability was to the extent of 100%. He
submitted that the findings as regards contributory negligence and
the quantum of compensation could be re-considered by relying
upon the provisions of Order XLI Rule 33 of the Code of Civil
Procedure, 1908. In support of his submissions, the learned
Counsel placed reliance on the following decisions:
(1) Andhra Pradesh State Road Transport Corporation and
another vs. M. Ramadevi and others (2008) 3 Supreme
Court Cases 379.
(2) Rekha Jain Versus National Insurance Co. Ltd. 2013
DSGLS (Soft.) 480.
(3) Mohan Soni Versus Ram Avtar Tomar and Ors. 2012
DGLS(Soft) 10.
fa36.07.odt.nfa271.07.odt 7/13
(4) Kala Devi and others Versus Bhagwan Das Chauhan and
others 2014 DGLS (Soft.)704.
(5) Minu Rout & Anr. Versus Satya Pradyumna Mohapatra &
Ors. 2013 DGLS(Soft) 744.
(6) Laxmi Devi and others versus Mohammad Tabbar and
another (2008) 12 SCC 165.
(7) Raj Kumar Versus Ajay Kumar and another (2011) 1
SCC 343.
(8) National Insurance Co. Ltd. New Delhi Versus Jugal
Kishore 1988 DGLS (Soft.) 694.
(9) igKantabai Tulsiram Thorat Versus National Insurance Co.
Ltd. And others II(1992) ACC 565.
6. Shri D. N. Kukday, learned Counsel appearing for the
respondent No.5 in First Appeal no.271/2008 submitted that the
insurer therein had satisfied the award to the extent of the liability
adjudicated by the Claims Tribunal.
7. With the assistance of the learned Counsel for the
parties, I have gone through the impugned judgments and I have
also perused the records. In M.A.C.P. No.29/2005, the claimant
examined himself below Exhibit-22. The claimant was a passenger
of the Minidor auto who had sustained injuries. The driver of the
tractor was examined below Exhibit-27 who in his deposition
admitted that the tractor had only one light. At Exhibit-41, the
documents indicating payment of premium were placed on record.
The same indicated that they are with regard to the tractor as well
fa36.07.odt.nfa271.07.odt 8/13
as trolley.
In M.A.C.P.No.22/2005, the claimant examined
himself below Exhibit-29. He placed on record the disability
certificate at Exhibit-36 and other documents on the basis of which
the claim for compensation was made. Similarly, the driver of the
tractor was examined below Exhibit-33.
8. It would first be necessary to consider the aspect of
negligence on the part of the offending vehicles. The evidence on
record indicates that it was admitted by the driver of the tractor
that the vehicle had only one light as can be seen from his
deposition at Exhibit-27. This fact is further fortified by the
document at Exhibit-34 which is a copy of the first information
report. The spot panchanama is at Exhibit-35. After considering
these documents, the Claims Tribunal came to the conclusion that
the Minidor auto was at about 40 ft. to the left side of the road
from the tractor. It was then noticed that the tractor had only one
light and, therefore, the negligence on the part of the tractor was
on higher side while that on the part of Minidor was to a lesser
extent. On the basis of this material, it was concluded by the
Claims Tribunal that the driver of the tractor had contributed to
the extent of 75% for having caused the accident. The negligence
of the Minidor auto was to the extent of 25%.
fa36.07.odt.nfa271.07.odt 9/13
This finding regarding the assessment of contributory
negligence is sought to be assailed by the appellant by relying
upon the judgment in Purnanarayan Sinha (supra) wherein various
principles for assessment of contributory negligence have been
referred to and it has been observed that if it is shown that proper
care is not taken by one of the parties, the contribution to the
negligence would have to be assessed in that regard. In the
present case after considering the entire material on record, it was
concluded that the tractor was negligent to the extent of 75%. This
finding which is based on preponderance of probabilities after
considering the material on record is a possible view of the matter
and said finding does not call for any interference. Said finding,
therefore, stands confirmed.
9. As regards the aspect of liability of the appellant vis-a-
vis the tractor and trolley, the document at Exhibit-41 indicates
payment of premium in respect of both the vehicles. The reference
to the number of the insured vehicle on both the receipts indicates
indicates payment of premium for the purpose of seeking cover of
insurance. It is submitted that in the case of vehicle No.MH 30-B
8905, the premium was paid after the date of the accident. It is to
be noted that the same pertains to the trolley which was attached
to the tractor. The receipt at Exhibit-41 also indicates payment
fa36.07.odt.nfa271.07.odt 10/13
made for the tractor bearing No.MTR 4943. Hence, the finding in
that regard recorded by the Claims Tribunal is based on material
on record and is liable to be confirmed.
10. It would be necessary to consider the submissions
made on behalf of the appellant with regard to the aspect of
contributory negligence. In M.A.C.P. No.29/2005, the driver of
the tractor was held responsible to the extent of 75%. It is on that
basis the total amount of compensation of Rs.2,50,000/- came to
be apportioned and reducedto the extent of Rs.1,87,500/- in so far
as the appellant is concerned. As noted above, the assessment of
contributory negligence has been rightly done by the Claims
Tribunal. However, with regard to the same accident which gave
rise to M.A.C.P. No.22/2005, this finding with regard to
contributory negligence has been totally ignored and the entire
liability has been saddled on the appellant. Once the finding that
the driver of the tractor contributed to the extent of 75% for
causing the accident was recorded, said finding and its effect
would also have to be applied in M.A.C. P. No.22/2005. To that
extent the submission made on behalf of the appellant deserves to
be accepted.
11. The prayer made on behalf of the claimant in M.A.C.P.
No.22/2005 for enhancement of compensation needs to be
fa36.07.odt.nfa271.07.odt 11/13
considered. It is to be noted that against the award passed by the
Claims Tribunal, it is only the Insurance Company that has come
up in appeal. The amount of compensation awarded by the Claims
Tribunal has not been challenged by the claimant as being on the
lower side. Though the learned Counsel for the claimant by relying
upon various decisions of the Hon'ble Supreme Court sought
enhancement in the amount of compensation, the said prayer
cannot be accepted. The Hon'ble Supreme Court in Ranjana
Prakash and others Versus Divisional Manager and another (2011)
14 SCC 639 in para 6 has in clear terms observed thus:
'6.........................................................................
Therefore, in an appeal by the owner/insurer,
the appellant can certainly put forth a contention
that if 30% is to be deducted from the income
for whatsoever reason, 30% should also be
added towards future prospects, so that the
compensation awarded is not reduced. The fact
that the claimants did not independently
challenge the award will not therefore come in
the way of their defending the compensation
awarded, on other grounds. It would only mean
that in an appeal by the owner/insurer, the
claimants will not be entitled to seek
enhancement of the compensation by urging any
new ground, in the absence of any cross-appeal
or cross-objections."
The fact that both the appeals have been preferred by the
Insurance Company disentitle the claimant to seek further
enhancement in the amount of compensation in their appeals.
Hence, the prayer in that regard cannot be considered.
fa36.07.odt.nfa271.07.odt 12/13
12. As regards the prayer for reducing the amount of
compensation as awarded by the Claims Tribunal in M.A.C.P.
No.22/2005 is concerned, it is to be noted that the claimant had
filed on record original bills for Rs.8,54,644/-. As observed in
Ranjana Prakash and others Versus Divisional Manager and another
(2011) 14 SCC 639 (Para 6) these appeals are required to be taken
into consideration while awarding the compensation. Though it is
true that a detailed calculation of the amount of compensation has
not been done by the Claims Tribunal, considering the fact that the
medical bills in original have been filed on record, the amount of
compensation that is granted does not deserve to be reduced.
However, considering the finding with regard to contributory
negligence, the liability for the same would have to be worked out.
By assessing the contributory negligence at 75% of the driver, the
claimant would be entitled for Rs.7,50,000/- from the tractor
owner and the insurer. To that extent, the award of the Claims
Tribunal would have to be modified.
13. In view of aforesaid, the following order is passed:
(1) First Appeal No.271/2008 arising out of Motor
Accident Claims Petition No.29/2005 stands dismissed.
(2) First Appeal No.36/2007 arising out of Motor Accident
Claims Petition No.22/2005 is partly allowed. It is held that the
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appellant and the owner of the vehicle are liable to pay sum of
Rs.7,50,000/- with 8% interest from 1-4-2005 till realization. The
claimant is entitled to receive the amount of compensation
deposited by the appellant in terms of aforesaid order.
(3) The judgment of the Claims Tribunal dated 8-3-2006
in MACP No.22/2005 and MACP No.29/2005 is modified in
aforesaid terms. No order as to costs.
JUDGE
//MULEY//s
