National Insurance ... vs Smt.Farzana Wd/O Abdul Wahid And 5 ...
2016 Latest Caselaw 3692 Bom

                                              1                             jg.fa715.04.odt




                                                                               
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.




                                                       
                                 FIRST APPEAL NO. 715 OF 2004

    National Insurance Co. Ltd. 




                                                      
    Through its Divisional manager, 
    Division No. 2, Nagpur.                                             .... Appellant 

           -  Versus  - 




                                             
    (1) Smt. Farzana wd/o Abdul Wahid      (dead, deleted)
                                   
          Aged 35 years 

    (2) Ku. Farheen Naaz D/o Ab. Wahid 
          Aged 17 years, 
                                  
    (3) A. B. Moheet S/o Abdul Wahid
          Aged 15 years, 
        

    (4) A. B. Muqeet S/o Abdul Wahid
          Aged 12 years, 
     



    (5) A. B. Mujahid S/o Abdul Wahid
          Aged 10 years, 

          Respondent Nos. 2 to 5 are being 





          minors, through their Mother, 
          Guardian & Next Friend Smt. 
          Farzana Respondent No. 1, 

          All are residing Muslim Library 





          Canteen, Mominpura, Nagpur. 

    (6) S. Jogindersingh Waryamsingh 
          Channeyana Owner of 
          R/o Baba Budhaji nagar, Nagpur & 
          M/s Hyderabad Maharashtra
          Roadways, Chandrashekhar Azad 
          Chowk, Central Avenue Road, 
          Nagpur.                                                      .... Respondents 




          ::: Uploaded on - 21/07/2016                 ::: Downloaded on - 30/07/2016 08:56:40 :::
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    --------------------------------------------------------------------------------------------------------
    Shri S. N. Dhanagare, Advocate for the appellants




                                                                       
    None for the respondents
    ---------------------------------------------------------------------------------------------------------
                                                        CORAM :  PRASANNA B. VARALE, J.

                                                        DATE     :  11-7-2016.




                                                                      
    ORAL ORDER  : 

Heard Shri S. N. Dhanagare, learned counsel appearing for the

appellant.

2. None appears for the respondent nos. 2 to 6.

3. The appellant - Insurance Company challenges the judgment

and order passed by the learned Member, Motor Accident Claims Tribunal,

Nagpur in Claim Petition No. 43/1994. It was the case of the claimants that

the husband of the claimant/applicant no. 1 Smt. Farzana Abdul Wahid was

resident of Nagpur. On 16-6-1993, he was proceeding from Ganjakheth

Chowk to Gandhibagh by cycle-rickshaw. One Imdad Ali was the cycle-

rickshaw puller. While the rickshaw came at Fawara Chowk, the vehicle -

truck gave a forcible dash to the cycle-rickshaw. Abdul Wahid thrown on the

road and sustained serious injuries. People gathered there and provided

medical assistance by immediately shifting him to hospital. It was found that

Abdul Wahid died on the spot itself. The offending vehicle - truck bearing

registration no. MWY-6259 was insured with the appellant - Insurance

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Company and the policy was in force on the day of accident. The petitioners -

claimants submitted that the deceased Abdul Wahid was engaged in business

and was earning monthly income of Rs. 3,000/-. It was further submitted by

the claimants that the claimants/petitioners were dependents of Abdul Wahid.

It was submitted that the deceased was 35 years of age at the time of his

death. It was submitted that one S. Joginder Singh Waryamsingh was the

owner of said vehicle truck. The claimants lodged their claim seeking

compensation at the rate of Rs. 5,40,000/-. Though the owner of the vehicle

truck/respondent no. 1 S. Joginder Singh was duly served, he remained

absent before the Claims Tribunal and the proceedings were decided ex parte

against him. The appellant - Insurance Company resisted the claim by

denying the involvement of said vehicle insured with the appellant involved in

the accident. The learned Claims Tribunal framed following issues :

(i) Whether the petitioners prove that, the alleged accident took place on 16/6/93 due to the rash and negligent driving of the driver of the offending vehicle Truck Registration No.

MWY/6259, owned by respondent No. 1 and duly insured with the respondent no. 2 and in that accident deceased Abdul Wahid sustained injuries and died ?

(ii) Whether the petitioners prove that they being legal representatives of deceased are entitled to get compensation ? If yes, to what extent and from whom ?

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The issues were answered by the Tribunal in the affirmative and the Tribunal

arrived at a conclusion that the claimants are entitled for the compensation of

Rs. 4,04,000/- inclusive of interim compensation.

4. In challenge to the judgment and award of the Claims Tribunal,

Shri Dhanagare, learned counsel for the appellant submitted that the Claims

Tribunal failed to appreciate the material on record and more particularly

about the income of the deceased victim. It was submitted by Shri Dhanagare

that the Tribunal held that the victim deceased was engaged in business and

was earning Rs. 3,000/- per month. He further submitted that the Tribunal

also erred in observing that the deceased was earning income from the

agriculture land. It was the submission of Shri Dhanagare, learned counsel

that there was no material placed on record to suggest the income being

derived from the agriculture land. Thus, on these grounds, it is the

submission of learned counsel for the appellant that the Claims Tribunal

awarded unjust compensation to the claimants.

5. None appears for the respondent nos. 2 to 5. Perusal of the

record shows that in spite of the opportunity granted on 13-6-2016 to the

respondents, none appears for the respondents. The appeal was heard on

27-6-2016. Today also, none appears for the respondent nos. 2 to 5. In view

of the submissions of Shri Dhanagare, learned counsel for the appellant and

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on perusal of the material placed on record, the facts which are undisputed

emerged as follow.

Abdul Wahid was proceeding from Ganjakheth Chowk to Gandhibagh

on 16-6-1993 by a cycle-rickshaw and when the cycle-rickshaw came at

Fawara Chowk, the offending vehicle truck gave dash to cycle-rickshaw

resulting in fall of Abdul Wahid from a cycle-rickshaw. Abdul Wahid

sustained serious injuries resulting in death of Abdul Wahid. The rickshaw

puller Imdad Ali was examined as P.W. 2 before the Claims Tribunal. He

stated in his oral evidence that Abdul Wahid was passenger in his cycle-

rickshaw and when the cycle-rickshaw came near Gitanjali Talkies, a vehicle

truck coming from right hand side gave dash to the cycle-rickshaw. Due to

dash, Imdad Ali fell down on the road and when he got up, he saw that the

passenger Abdul Wahid was lying on the road in injured condition. He found

that there was head injury to Abdul Wahid. Imdad Ali further stated that as

he was in frightened condition, he fled away from the spot. Though an

attempt was made to submit that the version of Imdad Ali is not reliable

version on the ground that Imdad Ali was not holding any licence issued by

the Municipal Corporation, learned Tribunal on the appreciation of the

testimony of witness Imdad Ali found that merely, because an attempt was

made to submit that Imdad Ali was not having any licence issued by the

Municipal Corporation, the Tribunal observed that it is not acceptable that

6 jg.fa715.04.odt

really a licence is required for plying a cycle-rickshaw and the version of

Imdad Ali in respect of dash to cycle-rickshaw and death of passenger Abdul

Wahid need not be thrown out. The Tribunal held that Imdad Ali was the

rickshaw puller and his version was reliable being a natural witness. The

Tribunal also found that the material placed on the record in the form of First

Information Report and spot panchanama showing that the cycle-rickshaw

was damaged in the accident found support to the claim of the petitioners

that deceased Abdul Wahid was the victim of accident. Thus, there is no

dispute on the aspect of Abdul Wahid being victim of the accident and died on

the spot due to dash of the offending vehicle truck.

6. Shri Dhanagare, learned counsel for the appellant vehemently

challenged the quantum of compensation awarded by the Tribunal. Insofar as

that aspect of the matter is concerned, though initially it was claimed by the

claimants/petitioners that Abdul Wahid was earning his livelihood by

engaging in some labour work, an attempt was made to improve the version

by submitting that Abdul Wahid was running the furniture shop. It was also

an attempt made to submit that apart from running a furniture shop,

deceased Abdul Wahid was engaged in real estate i.e. sale and purchase of

plots. It was also an attempt made to submit that Abdul Wahid was deriving

some income by driving a truck. The Tribunal, on scanning and assessing the

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material placed on record along with oral version of the petitioner no. 1

Smt. Farzana, arrived at a conclusion that as there is no material produced on

record to support the version that either Abdul Wahid was receiving any

income by running a furniture shop or by engaging himself in real estate, the

claim to that effect is unacceptable. Learned Tribunal also found that merely

because producing the licence in the name of Abdul Wahid, it cannot be said

that Abdul Wahid was earning some income from driving any vehicle. The

learned Tribunal found that copy of 7/12 extract was placed on record by the

petitioners-claimants showing that the deceased Abdul Wahid was holding

agricultural land of 1 Hectare 54 R. Considering the crop pattern reflected in

7/12 extract, namely raw cotton, the Tribunal held that the deceased was

receiving monthly income at the rate of Rs. 3,000/- per month and annual

income of Rs. 36,000/-. The Tribunal, thus, considering the claim of the

claimants on the backdrop of the material placed on record arrived at a

conclusion that deceased Abdul Wahid was earning his annual income of

Rs. 36,000/- and by deducting amount of Rs. 12,000/- as one third amount of

annual income towards the personal expenses of deceased Abdul Wahid,

the Tribunal arrived at a conclusion that the claimants are entitled for loss of

annual dependency to the tune of Rs. 24,000/-. Considering the age of

deceased Abdul Wahid i.e. he was in the age group of 35 to 40 years, the

Tribunal awarded compensation for loss of consortium at the rate of

8 jg.fa715.04.odt

Rs. 10,000/-, loss of life at the rate of Rs. 10,000/- and funeral expenses of

Rs. 2,000/-. Thus, the Tribunal held that in total, claimants-petitioners were

entitled for the compensation of Rs. 4,06,000/-. The Tribunal then by

deducting amount of interim compensation of Rs. 25,000/- held that the

claimants-petitioners would be entitled for the balance compensation of

Rs. 3,81,000/- and accordingly, quantified the share of the claimants-

petitioners. The Tribunal awarded interest at the rate of 9% per annum and

in the result held the respondent nos. 1 and 2 jointly and severally liable to

pay compensation with costs.

7. Though Shri Dhanagare, learned counsel for the appellant made

an attempt to submit that the Claims Tribunal erred in awarding the

compensation treating the income of the deceased at Rs. 3,000/- per month,

considering the material placed on record, in my opinion, the Tribunal was

not at fault in arriving at a conclusion that the annual income of Abdul Wahid

was Rs. 36,000/- treating that the deceased was receiving income of Rs.

3,000/- per month. There was material placed on record in the form of 7/12

extract showing that deceased was holding 1 Hectare 54 R land and was

growing crop like raw cotton. The land was being cultivated by deceased and

it was in cultivation even after the death of deceased. The Tribunal was also

justified in quantifying amount of compensation for other heads like

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consortium, funeral expenses etc. Perusal of record shows that the appellant

failed to place on record any contra material to counter the aspect of income

of the deceased. As stated above, though the claimants made an attempt to

enlarge the scope of compensation by submitting that the deceased was

running a furniture shop and was engaged in real estate, the learned

Tribunal, on the backdrop of no material placed on record in support of these

submissions, was not inclined to accept the submissions for that claim. Thus,

taking over all view of the material placed on record, I see no error committed

by the Claims Tribunal. The judgment and order passed by the learned

Claims Tribunal is neither suffering from illegality or any perversity. The

appeal is thus, being meritless, deserves to be dismissed and the same is

accordingly, dismissed.

JUDGE

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