Bombay High Court
Kalpana Rajendrakumar Shendre ... vs Ramesh Jagannath Patil And Others on 12 July, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 228 OF 2014
1. Smt. Kalpana W/o Rajendrakumar Shendre,
Age 45 years, Occu. Household,
2. Mayur S/o Rajendrakumar Shendre,
Age 22 years, Occu. Education,
3.
Pranav S/o Rajendrakumar Shendre,
Age 18 years, Occu. Education,
4. Smt. Shaila Deepal Shendre,
Age 77 years, Occu. Nil,
All R/o behind Hotel Pancharatna,
Yawal Road, Faizpur,
Taluka Yawal, District Jalgaon. ... Applicants
(Orig. Claimants)
Versus
1. Ramesh S/o Jagannath Patil,
Age Major, Occu. Agriculture,
R/o Village Chinawal,
Taluka Raver, District Jalgaon.
2. United India Insurance Company Ltd.,
Mansing Market, Near Railway Station,
Jalgaon Office, Jalgaon,
District Jalgaon.
3. Parish @ Paresh S/o Nilkanch Choudhary,
Age 31 years, Occu. Labour,
R/o Village Chinawal, Taluka Raver,
District Jalgaon. ... Respondents
(Orig. Respondents)
.....
Advocate for the appellants : Mr. P. R. Katneshwarkar
Advocate for respondent No.1 : Mr. S. S. Shete
Advocate for respondent No.2 : Mr. S. S. Rathi
.....
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CORAM : V. K. JADHAV, J.
RESERVED FOR JUDGMENT ON : 13th JUNE, 2016
JUDGMENT PRONOUNCED ON : 12th JULY, 2016
JUDGMENT :-
1. By consent of learned counsel for respective parties, heard
finally.
2. Being aggrieved by the judgment and award dated 23.09.2013
passed by learned Member, Motor Accident Claims Tribunal, Jalgaon
in MACP No. 3 of 2007, the original claimants have preferred this
appeal to the extent of dismissal of the claim petition against original
respondent No.2/insurer (United India Insurance Co. Ltd.)
3. Brief facts giving rise to the present appeal are as follows:
a) On 11.05.2006, deceased Rajendrakumar was proceeding on
his motorcycle bearing registration No. MH-19-AB-7767 to attend a
marriage ceremony of his relative. At around 9 a.m., on Savda-
Faizpur Road, near Munjoba Temple, one motorcycle bearing
registration No. MH-19-A-8115 (offending motorcycle) came from the
opposite direction in high speed and dashed to the motorcycle of the
deceased. The offending motorcycle bearing registration No. MH-19-
A-8115 is owned by respondent No. 1, insured with respondent No.2
and was being driven in rash and negligent manner in speed by
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respondent No.3 when the accident occurred. In consequence of
which, deceased Rajendrakumar was thrown away from his
motorcycle and sustained fracture of his skull. He died on the spot.
Thus, the claimants, who are the legal representatives of deceased
Rajendrakumar, preferred claim petition before the Motor Accident
Claims Tribunal, Jalgaon for grant of compensation under various
heads.
b) It is
contended in the claim petition that deceased
Rajendrakumar was 40 years old at the time of his accidental death
and he was Professor at J.T. Mahajan Polytechnic Collage run by
Technical and Medical Education Society and he was getting monthly
salary of Rs.16,095/-. The claimants were entirely depending on his
income and as such, they claimed total amount of compensation of
Rs.35,00,000/- from the respondents under various heads.
c) Respondent No.1/owner of the offending motorcycle strongly
resisted the claim petition by filing written statement Exh.19 and
additional written statement Exh.31. It is contended that the accident
occurred on account of fault of deceased Rajendrakumar. He has
denied the involvement of his motorcycle in the accident. According
to him, on 11.05.2006, there was marriage of his daughter and for
some work, he handed over his motorcycle to one Nilesh Nemade. It
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is further contended that he is not aware as to whom and how Nilesh
handed over the motorcycle. He never handed over his motorcycle
to respondent No.3-Paresh.
d) Respondent No.2/insurer has also strongly resisted the claim
petition by filing its written statement Exh.17. It is contended that
rider of the offending motorcycle was not holding a valid and effective
driving licence, and as such, there is breach of terms and conditions
of the insurance policy. It is also contended that the accident
occurred on account of rash and negligent driving of deceased
Rajendrakumar.
e) Respondent No.3/rider of the offending motorcycle has also
resisted the claim petition by filing his written statement Exh.30-A.
According to him, he has no concern with the accident and on the
basis of hearsay complaint, he is made accused in the Summary
Criminal Case No.1069 of 2006 arising out of the said accident. In
the criminal trial, witness No.3-Nilesh has not supported the
prosecution story, however, in cross-examination at the hands of the
learned APP in the said case, he has given certain admissions which
cannot be taken into consideration. It is further contended that he
has been falsely implicated in the case and he has no concern with
the offending motorcycle or its owner.
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f) On the basis of these rival contentions of the parties to the
claim petition, the Tribunal has framed issues at Exh.35. The
claimant, as well as the respondents filed their oral and documentary
evidence in support of their rival contentions. Learned Member of
the Motor Accident Claims Tribunal, Jalgaon has partly allowed the
claim petition with costs and thereby held respondent Nos. 1 and 3
jointly and severally liable to pay the amount of compensation of
Rs.60,50,000/- to the petitioners, including amount of N.F.L., along
with interest. Learned Member of the Tribunal, however, dismissed
the claim petition as against respondent No.2/insurer. Being
aggrieved by the same, the original claimants have preferred the
present appeal to the extent of dismissal of the claim petition against
respondent No.2/insurer.
4. Learned counsel for the appellants submits that respondent
No.1/owner of the offending motorcycle has made a categorical
statement that he has given his motorcycle to one Nilesh Nemade,
who is having a valid and effective driving licence to drive
motorcycle. Driving licence of said Nilesh is also produced on
record. Respondent No.1/owner never handed over his motorcycle
to respondent No.3. Consequently, there is no breach of promise as
contemplated under the insurance policy. Learned counsel submits
that the defence of respondent/insurer built on the exclusion clause
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cannot succeed for more than one reasons. There was marriage of
daughter of respondent No.1/owner on the date of the alleged
accident. Respondent No.1/owner has handed over the keys of the
offending motorcycle to said Nilesh. Said Nilesh is having valid and
effective driving licence to drive motorcycle. Thus, respondent
No.1/owner has done everything in his power to keep the promise
and he is not guilty of a deliberate breach. It is for the
respondent/insurer to establish that the insured/owner is guilty of
infringement or violation of promise and the said violation or
infringement of promise on the part of respondent No.1 must be
wilful. Respondent insurer has failed to establish that owner of the
offending motorcycle had himself placed the offending motorcycle in
charge of respondent No.3, who was not holding a driving licence. In
absence of the same, it cannot be said that respondent No.1/owner
is guilty of breach of promise and that the insurer is not liable to pay
compensation on account of the said breach or infringement of the
terms of policy.
5. Learned counsel, in order to substantiate his contention,
places reliance on the decision of Supreme Court in the case of
Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and
others, reported in AIR 1987 SC 1184(1).
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6. Learned counsel for respondent No.1/owner submits that on
the date of accident, there was marriage of daughter of respondent
No.1 and for some reason, he handed over his vehicle motorcycle to
one Nilesh Nemade. Said Nilesh Nemade is having valid and
effective driving licence to drive motorcycle and the same is evident
from the copy of his driving licence which is verified with the original
licence and marked Exh.79. Respondent No.1/owner has handed
over the keys of said motorcycle to Nilesh for some work and he
himself remained busy in the marriage ceremony of his daughter. If
said Nilesh Nemade subsequently, on his own, handed over the keys
of said motorcycle to respondent No.3-Paresh without any express or
implied consent of respondent No.1/owner, then there is no wilful
infringement or violation of promise or obligation on his part so far as
the exclusion clause in the contract of insurance policy is concerned.
It is clear from the judgment passed by the Judicial Magistrate First
Class, Raver dated 03.03.2009 in the Summary Criminal Case
against respondent No.3 Paresh. Certified copy of the said judgment
in Summary Criminal Case No. 1069 of 2006 is placed on record and
marked Exh.50. In the said criminal case, Niesh Nemade has
admitted that he was the pillion rider on the said motorcycle at the
time of accident and he also sustained injury in the said accident. He
has further, in unequivocal words, admitted that the accused (present
respondent No.3 Paresh) was riding the said motorcycle. Though
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witness Nilesh Nemade has not supported the prosecution case
before the Magistrate in the said criminal case, the said admissions
on his part in his cross-examination at the hands of learned APP can
be considered. Respondent/insurer has failed to establish that there
was wilful infringement or violation on the part of respondent
No.1/owner and thus, failed to discharge the burden of proving
breach of the terms of contract of insurance by respondent No.1.
Though there is valid contract of insurance between respondent
No.1/owner and respondent No.2/insurer, the tribunal has
erroneously exonerated respondent/insurer from paying
compensation to the claimants.
7. Learned counsel for respondent No.2/insurer submits that
though respondent No. 3 has denied his involvement in the accident,
the documents placed on record coupled with the oral evidence
sufficiently indicates that respondent No.3-Paresh was riding the
motorcycle at the time of accident. Respondent No.2/insurer has
succeeded in proving that respondent No.3-Paresh was not having
valid and effective licence at the time of accident.
Respondent/insurer has examined RW-1 Prakash Patil serving in
Regional Transport Office, Jalgaon. As per the record of R.T.O.,
Jalgaon, the driving licence was issued to respondent No.3-Paresh
on 09.10.2006 authorizing him to drive motorcycle with gear.
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Respondent No.2/insurer has proved documents Exh.71 and 73
respectively, through this witness. It is, thus, clear that respondent
No.3-Paresh was not having valid, effective driving licence at the
time of accident. Learned counsel for respondent No.1 has not
examined said Nilesh Nemade as his witness. There is no evidence
to show that respondent No.1/owner handed over the keys of the
offending motorcycle to Nilesh Nemade on the date of accident.
After the accident, crime came to be registered against respondent
No.3-Paresh and after due investigation, the Police submitted charge
sheet against him. Even though respondent No.3-Paresh came to be
acquitted in the said criminal case, it is established that respondent
No.3-Paresh was riding the motorcycle at the time of accident. Even
though respondent No.1/owner has shown his ignorance about riding
of motorcycle by respondent No.3-Paresh at the time of accident and
also denied acquaintance with said Paresh in the pleadings, he
admitted in his cross-examination that respondent No.3-Paresh and
said Nilesh are the residents of his village. He has further admitted
the damage caused to his vehicle motorcycle, however, he has
further stated in his cross-examination that he did not ask Nilesh as
to whom he handed over the vehicle and how damage caused to his
vehicle. The conduct of respondent No.1/owner is sufficient to
establish that he is guilty of infringement or violation of the terms and
conditions of the policy wilfully. The Tribunal has, thus, rightly
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exonerated respondent No.2/insurer from the liability to pay
compensation to the claimants. Learned counsel, in the alternate,
submits that if this Court comes to the conclusion that
respondent/insurer is liable to pay compensation jointly and severally
with respondent/owner, then respondent No.2/insurer may be heard
on the point of negligence as well as the quantum of compensation.
8. I have carefully considered the submissions advanced by
learned counsel appearing for the parties. With their able assistance,
I have carefully gone through the grounds taken in the appeal and
the annexures thereto.
9. Respondent No.1/owner Ramesh Patil, in his affidavit of
evidence Exh.77, has contended that on the date of accident, he was
busy in the marriage ceremony of his daughter. On that day, for
some work, he handed over the said motorcycle to Nilesh Nemade.
He has denied that respondent No.3 had driven the motorcycle and
caused the accident. According to him, the complaint in the Police
Station came to be lodged on the basis of hearsay evidence. He has
further stated that the accident had taken place due to fault on the
part of deceased himself. In order to substantiate his contentions, he
also produced copy of driving licence issued in the name of Nilesh
Nemade and after verifying the original, the same is marked Exh.79.
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He is subjected to cross-examination at length by respondent/insurer.
It is true that respondent/owner has not raised a plea in his first
written statement Exh.19 that on the date of accident, he handed
over the keys of the motorcycle to Nilesh Nemade and in his
subsequent written statement Exh.32, he has raised the said plea.
He has denied the suggestion that in order to avoid liability to pay
compensation, he is deposing falsely. However, it is part of record
that after respondent No.3-Paresh, who came to be impleaded as a
party respondent to the claim petition as per order passed by the
tribunal, by his written statement, denied his involvement in the
alleged accident, respondent No.1/owner, with the permission of the
Court, has filed his additional written statement Exh.32. Respondent
No.3-Paresh, even though the crime came to be registered against
him on the basis of the complaint lodged in the concerned Police
Station, and even though after due investigation, charge sheet came
to be submitted against him, denied his involvement in the said
accident. It thus, appears that respondent No.1/owner has rightly
explained in his subsequent written statement Exh.32 about handing
over of the vehicle to one Nilesh Nemade.
10. On careful perusal of certified copy of the judgment delivered
by the Judicial Magistrate First Class in Summons Criminal Case No.
1069 of 2006, it appears that said Nilesh Nemade was the
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prosecution witness No.3 in the said case and since he has not
supported the prosecution case, he was subjected to cross-
examination by the Assistant Public Prosecutor. Learned Magistrate
has observed in the judgment that PW-3 Nilesh Nemade has given
certain admissions in his cross-examination. He has admitted in his
cross-examination that the accident has taken place and he also
sustained injuries to his leg. He has also admitted that at the time of
accident, present respondent No.3-Paresh was riding the motorcycle
and he himself was the pillion rider. It is well settled that the Court is
not precluded from taking into account the statement of a hostile
witness altogether and it is not necessary to discard the same in to-to
and can be relied upon partly. Evidence of the hostile witness is
admissible in evidence and part of it can be accepted by the Court if
the Court is satisfied with its truthfulness. It further appears from the
observations made by learned Magistrate in the said judgment that
learned Magistrate believed the evidence of witness Nilesh Nemade
to that extent. However, Learned Magistrate further observed that
the said admissions on the part of witness Nilesh Nemade are not
sufficient to establish that accused Paresh had driven the vehicle in
rash and negligent manner and that he is responsible for the
accident.
11. I find much substance in the contention of respondent/owner
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that on the day of accident, he handed over the keys of his
motorcycle to Nilesh Nemade, who is having valid and effective
driving licence to drive the motorcycle. It was revealed during the
course of investigation that said Nilesh Nemade was the pillion rider
of the offending motorcycle and respondent No.3-Paresh was riding
the motorcycle at the time of accident. Once respondent No.1/owner
handed over keys of his motorcycle to the person having valid and
effective driving licence to drive motorcycle, irrespective of the
question whether he remained busy in the marriage ceremony of his
daughter or not, he looses his control in the form of supervision over
the vehicle. It is thus, for the respondent/insurer to establish that
respondent/owner is guilty of an infringement or violation of the
conditions of insurance policy and the said infringement or violation is
wilful. Respondent/insurer has nowhere even suggested to
respondent No.1/owner in his cross-examination that he himself
placed the vehicle motorcycle in charge of respondent-Paresh who
was not holding driving licence. Unless the said burden is
discharged, respondent/insurer cannot escape from the liability to
indemnify respondent/owner.
12. I am fortified by the view expressed by the Apex Court in the
case of Skandia Insurance Co. Ltd. (supra) relied upon by the
learned counsel for the appellant, wherein, in paragraph No. 14 of
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the judgment, the Apex Court has made the following observations :
"14. Section 96(2)(b)(ii) extends immunity to the Insurance
Company if a breach is committed of the condition
excluding driving by any named person or persons or by
any person who is not fully licenced, or by any person who
has been disqualified for holding or obtaining a driving
licence during the period of disqualification. The
expression 'breach' is of great significance. The dictionary
meaning of 'breach' is 'infringement or violation of a
promise or obligation' (see Collins English Dictionary). It is
therefore abundantly clear that the insurer will have to
establish that the insured is guilty of an infringement or
violation of a promise that a person who is not (sic) duly
licenced will have to be in charge of the vehicle. The very
concept of infringement or violation of the promise that the
expression 'breach' carries within itself induces an
inference that the violation or infringement on the part of
the promisor must be a wilful infringement or violation. If
the insured is not at all at fault and has not done anything
he should not have done or is not amiss in any respect how
can it be conscientiously posited that he has committed a
breach? It is only when the insured himself places the
vehicle in charge of a person who does not hold a driving
licence, that it can be said that he is 'guilty' of the breach of
the promise that the vehicle will be driven by a licenced
driver. It must be established by the Insurance Company
that the breach was on the part of the insured and that it
was the insured who was guilty of violating the promise or
infringement of the contract. Unless the insured is at fault
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and is guilty of a breach the insurer cannot escape from the
obligation to indemnify the insured and successfully
contend that he is exonerated having regard to the fact that
the promisor (the insured) committed a breach of his
promise. Not when some mishap occurs by some
mischance. When the insured has done everything within
his power inasmuch as he has engaged a licenced driver
and has placed the vehicle in charge of a licenced driver,
with the express or implied mandate to drive himself it
cannot be said that the insurer is guilty of any breach. And
it is only in case of a breach or a violation of the promise on
the part of the insured that the insured can hide under the
umbrella of the exclusion clause. In a way the question is
as to whether the promise made by the insured is an
absolute promise or whether he is exculpated on the basis
of some legal doctrine. The discussion made in paragraph
239 of Breach of Contract by Carter (1984 Edition) under
the head Proof of Breach, gives an inkling of this dimension
of the matter. In the present case even if the promise were
to be treated as an absolute promise the grounds for
exculpation can be found from Section 84 of the Act which
reads thus :-
"84. Stationary vehicles - No person driving or in charge
of a motor vehicle shall cause or allow the vehicle to
remain stationary in any public place, unless there is in
the driver's seat a person duly licenced to drive the
vehicle or unless the mechanism has been stopped and
a brake or brakes applied or such other measures taken
as to ensure that the vehicle cannot accidentally be put
in motion in the absence of the driver."
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In view of this provision apart from the implied mandate to
the licenced driver not to place a non-licenced person in
charge of the vehicle. There is also a statutory obligation
on the said person not to leave the vehicle unattended and
not to place it in charge of an unlicenced driver. What is
prohibited by law must be treated as a mandate to the
employee and should be considered sufficient in the eye of
law for excusing non-compliance with the conditions. It
cannot therefore in any case be considered as a breach on
the part of the insured. To construe the provision differently
would be to re-write the provision by engrafting a rider to
the effect that in the event of the motor vehicle happening
to be driven by an unlicenced person regardless of the
circumstances in which such a contingency occurs, the
insured will not be liable under the contract of insurance. It
needs to be emphasised that it is not the contract of
insurance which is being interpreted. It is the statutory
provision defining the conditions of exemption which is
being interpreted. These must therefore be interpreted in
the spirit in which the same have been enacted
accompanied by an anxiety to ensure that the protection is
not nullified by the backward looking interpretation which
serves to defeat the provision rather than to fulfil its life-
aim. To do otherwise would amount to nullifying the
benevolent provision by reading it with a non-benevolent
eye and with a mind not tuned to the purpose and
philosophy of the legislation without being informed of the
true goals sought to be achieved. What the legislature has
given, the Court cannot deprive of by way of an exercise in
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interpretation when the view which renders the provision
potent is equally plausible as the one which renders the
provision impotent. In fact it appears that the former view is
more plausible apart from the fact that it is more desirable.
When the option is between opting for a view which will
relieve the distress and misery of the victims of Accidents
or their dependents on the one hand and the equally
plausible view which will reduce the profitability of the
insurer in regard to the occupational hazard undertaken by
him by way of business activity, there is hardly any choice.
The Court cannot but opt for the former view. Even if one
were to make a strictly doctrinaire approach, the very same
conclusion would emerge in obeisance to, the doctrine of
'reading down' the exclusion clause in the light of the 'main
purpose' of the provision so that the 'exclusion clause'
does not cross swords with the 'main purpose' high-lighted
earlier. The effort must be to harmonize the two instead of
allowing the exclusion clause to snipe successfully at the
main purpose. This theory which needs no support is
supported by Carter's "Breach of Contract" Vide paragraph
25 To quote:-
"Notwithstanding the general ability of contracting parties
to agree to exclusion clause which operate to define
obligations there exists a rule, usually referred to as the
"main purpose rule", which may limit the application of
wide exclusion clauses defining a promisor's contractual
obligations. For example, in Glynn v. Margetson & Co.,
[1893] A.C. 351 at 357 Lord Halsbury L.C. stated:
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"It seems to me that in construing this document, which
is a contract of carriage between the parties, one must
be in the first instance look at the whole instrument and
not at one part of it only. Looking at the whole
instrument, and seeing what one must regard ......... as
its main purpose, one must reject words, indeed whole
provisions, if they are inconsistent with what one
assumes to be the main purpose of the contract."
Although this rule played a role in the development of the
doctrine of fundamental breach, the continued validity of
the rule was acknowledged when the doctrine was rejected
by the House. of Lords in Suissee Atlantigue Societe d'
766 Armement Maritime S.A.v.N.V. Rotterdamsche Kolen
Centrale, [1967] 1 A.C. 361 at 393,412- 413,427, 428, 430.
Accordingly, wide exclusion clauses will be read down to
the extent to which they are inconsistent with the main
purpose, or object of the contract." (Exphasis added)."
13. In view of the above discussion and in the light of observations
made by the Hon'ble Apex Court, I am of the considered opinion that
respondent/insurer has failed to discharge its burden and thus, is
liable to pay compensation to the claimants. Learned Member of the
tribunal has committed error of fact and law to exonerate
respondent/insurer from the liability to pay compensation and from
the obligation to indemnify the insured under the terms of contract of
insurance. I, thus, hold that respondent No.2/insurer is jointly and
severally liable to pay compensation with respondent Nos.1 and 3.
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14. Learned counsel for respondent No.2/insurer submits the the
appellants/claimants have failed to prove that the accident has
occurred because of rash and negligent driving of the motorcycle
bearing registration No. MH-19-A-8115 by its driver. PW-1 is not an
eye witness to the accident and the F.I.R. is lodged on the basis of
hearsay information. The evidence before the tribunal, at the most
indicates the involvement of said motorcycle in the alleged accident.
However, there is no evidence at all to show that the accident had
occurred on account of rash and negligent driving of said motorcycle
by its driver. It is true that PW-1 Kalpana has no personal knowledge
about the accident and she has not actually witnessed the accident.
However, she has produced on record the Police documents such as
F.I.R., spot panchnama, inquest panchnama etc. On careful perusal
of spot panchnama Exh.40, it appears that the road Savda-Faizpur is
east-west in direction at the spot of the accident. It further appears
from the contents of the spot panchnama that the tar road is 30 ft. in
width at the spot of accident. Both the counsel admit that village
Savda is towards eastern side whereas, Faizpur is situated towards
western side. As per contents of the spot panchnama, the road at
the spot of accident is straight and plain. It is not disputed that
deceased Rajendrakumar was proceeding on his motorcycle from
Faizpur to Savda. In view of the same, northern side of the road is
the correct side for the vehicle proceeding towards Savda from
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Faizpur. It is specifically mentioned in the spot panchnama that the
blood spots are towards the northern side of the road and the
motorcycle being driven by deceased Rajendrakumar was also lying
towards the northern side of the road. It further appears from the
contents of the panchnama that excessive damage has been caused
to the right portion of the motorcycle of deceased, partly on the right
side indicator, foot-ware, side glass and the dickey which is placed to
the right side of the vehicle. Thus, the only inference can be drawn
that even though the tar road is 30 ft. in width, the another vehicle
motorcycle gave dash to the motorcycle of deceased by going to the
wrong side of the road and dash was given on the right side portion
of the vehicle motorcycle being driven by the deceased. Thus, the
maxim res ipsa loquitur squarely applies to the facts and
circumstances of the present case. Neither respondent Nos. 1 and
3, nor respondent No.2/insurer examined said Nilesh Nemade to
substantiate their contention that deceased Rajendrakumar was
responsible for the accident. Even though said Nilesh Nemade has
admitted in his cross-examination before the criminal court that he
was the pillion rider and he actually witnessed the incident and
further stated that deceased Rajendrakumar was responsible for the
accident, none of the respondents have bothered to examine said
witness. In view of the above, I do not find any fault in the affirmative
finding recorded by the tribunal that the accident has occurred
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because of the rash and negligent riding of motorcycle bearing
registration No. MH-19-A-8115 by its rider.
15. Learned counsel for the respondent/insurer submits that the
tribunal has not considered salaried income of deceased
Rajendrakumar and awarded exorbitant compensation on the
surmise that deceased Rajendrakumar might have fetched salary in
accordance with 6th Pay Commission.
ig Deceased Rajendrakumar
was getting total salary of Rs.16,095/- p.m. Even assuming that 6 th
Pay Commission was made applicable by the Government w.e.f.
01.01.2006, as deposed by witness No.2 for the claimants viz. Shri
Ramanlal Mahajan, the basic pay of deceased Rajendrakumar would
have increased from Rs.10,975/- to Rs.20,420/- and after adding
academic grade pay and other allowances, his total salary would
have been Rs.29,591/-. Said witness has further stated that
deceased Rajendrakumar would have earned the salary of
Rs.62,241/- had he been alive in the year 2013. The tribunal has
thus, erroneously assessed his salaried income as Rs.62,241/- p.m.
16. I find much substance in the submissions made by learned
counsel for respondent/insurer. Witness Ramanlal Mahajan has
admitted in his cross-examination that the last drawn pay of
deceased Rajendrakumar for the month of April 2006 was
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Rs.12,876/-. As per his affidavit of evidence, deceased
Rajendrakumar was getting total salaried income of Rs.16,095/- p.m.
and after necessary deductions, he was getting Rs.12,876/- p.m. as
salary. He has further admitted in his cross-examination that the
Government Resolution of 6th Pay Commission was published on
20.08.2010 with retrospective effect from 01.01.2006 and the said
pay was not applied to deceased Rajendrakumar Shendre for the
reason that only the serving persons are entitled to the benefit of 6 th
Pay Commission. In view of the above admissions and after
considering the future prospects of deceased Rajendrakumar, it
would be just and proper to consider the salaried income of
deceased Rajendrakumar as stated by said witness Ramanlal
Mahajan. Deceased Rajendra, even assuming that the benefit of 6th
Pay Commission was given to him, would have earned Rs.29,591/-
and after deducting amount towards Professional Tax and Income
Tax, and after making addition of 30% in the income by considering
the future prospects, the claimants sustained loss of future income of
Rs.38,208/- p.m. Learned Member of the tribunal has deducted 1/3 rd
amount towards personal expenses erroneously instead of 1/4 th
amount. Learned Member of the tribunal should have considered
deduction of 1/4th amount from the income of deceased towards his
personal expenses considering the number of claimants entirely
depending on the income of deceased Rajendrakumar. Thus, after
fa228.14-reserved
deducting 1/4th of the amount towards personal expenses, there is
loss of future income of Rs.28,656/- p.m., corresponding to
Rs.3,43,872/-per annum. Considering the age of deceased
Rajendrakumar, the tribunal has rightly applied multiplier 14. It
further appears that the tribunal has not awarded compensation
under the non-pecuniary heads such as loss of consortium, loss of
estate, loss of love and affection for the minor claimants etc.
Claimant No.1 is entitled for an amount of Rs.25,000/- for loss of
consortium, whereas, the minor claimant Nos. 2 and 3 are entitled for
an amount of Rs.10,000/- each, towards loss of love and affection.
The claimants are also entitled for an amount of Rs.10,000/- towards
loss of estate. In view of the above, recalculation of compensation is
required to be done. Thus the break up of compensation, which can
be broadly categorized, is as under :
I. Loss of future income - Rs.48,14,208=00
(28,656X12X14)
II. Loss of consortium - Rs.00,25,000=00
III. Loss of love and affection - Rs.00,20,000=00
(Rs.10,000/- each)
IV. Loss of estate - Rs.00,10,000=00
V. Funeral expenses - Rs.00,10,000=00
(as awarded by the Tribunal)
-------------------------------
Total Rs.48,79,208=00
-------------------------------
fa228.14-reserved
17. Thus, the appellants-claimants are entitled for compensation of
Rs.48,79,208/- (Rupees Forty Eight Lac Seventy Nine Thousand
Two Hundred Eight only) and respondent No.2/insurer is jointly and
severally liable to pay the same with respondent No.1/owner and
respondent No.3/driver. In view of the above, the judgment and
award passed by the Member, M.A.C.T., Jalgaon in MACP No. 3 of
2007, needs to be modified. Hence, I proceed to pass the following
order :
ORDER
I. First Appeal No.228 of 2014 is hereby allowed with
proportionate costs.
II. The judgment and award dated 23.09.2013 passed by the
Member, M.A.C.T., Jalgaon, in MACP No. 3 of 2007 is
hereby quashed and set aside to the extent of dismissal of
claim petition against respondent No.2/United India
Insurance Company Ltd.
III. The impugned judgment and award is hereby modified in
the following manner :
"Respondent No. 1/owner, respondent No. 2/insurer and
respondent No.3/driver do pay, jointly and severally,
amount of compensation of Rs.48,79,208/- (Rupees Forty
Eight Lac Seventy Nine Thousand Two Hundred Eight only)
to the claimants, including the amount of N.F.L., along with
interest at the rate of 7.5% p.a. from the date of petition till
realization of the entire amount."
fa228.14-reserved
IV. Rest of the judgment and award stands confirmed.
V. Award be drawn up in tune with the modification as
aforesaid.
VI. First Appeal is accordingly disposed of.
( V. K. JADHAV, J.)
vre/
