Bombay High Court
Mrs. Vimal Yashwant Kamble ... vs United Inida Insurance Co. Ltd on 22 July, 2016
Bench: R.M. Savant
1 CAF 1652-15 & FA 38-00.doc-34
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.38 OF 2000
WITH
CIVIL APPLICATION NO.1652 OF 2015
United India Insurance Company Ltd. ]
Mumbai Regional Office No.2 ]
3rd floor, Maker Bhavan No.1 ]
Sir V. T. Marg, Mumbai - 20 ] ..Appellant
Versus
1 Smt. Vimal Yashwant Kamble, adult ]
resident of Mutakeshwar ]
taluka Gaganbavda, Dist. Kolhapur ]
2 Minor Bhanudas Yashwant Kamble ]
thru' his mother-guardian ]
Resp No.1 above ]
3 Minor Pinki Yashwant Kamble ]
thru' her mother-guardian ]
Resp No.1 above ]
4. Gajanan Bhiksheth Kesarkar, adult ]
Truck business, resident of Malkapur ]
Taluka Shahuwadi, Dist. Kolhapur ] ..Respondents
Mr. Ketan Joshi for the Appellant.
Mr. A. S. Patil for the Respondent Nos.2 and 3.
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CORAM :- R. M. SAVANT, J.
DATE :- JULY 22, 2016
ORAL JUDGMENT :-
1. The above First Appeal has been shown under the caption
of 'Orders' as the Civil Application filed by the claimants for
withdrawal of amount is listed for hearing. However, this Court was
of the view that instead of considering the Civil Application, it would
be appropriate if the above First Appeal itself is taken up for hearing.
The learned Counsel for parties readily agreed to the same; that is
how the above First Appeal is being heard.
2. The above First Appeal takes exception to the Judgment
and Order dated 29/04/1999 passed by the learned District Judge /
Member, M.A.C.T., Kolhapur, by which the Claim Petition filed by the
Respondent Nos.2 and 3 came to be partly allowed to the extent of
granting the claimants an amount of Rs.1,38,000/- as compensation
with proportionate costs along with Rs.25,000/- already paid under
the no fault liability. The M.A.C.T. made the Opponent Nos.2 and 3
i.e. the respondent nos.1 and 2 herein, as jointly and severally liable
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to pay an amount of Rs.1,13,000/- with interest at the rate of 12% per
annum from 01/01/1993 till realization. The M.A.C.T. has issued
further directions in respect of investment of Rs.60,000/- out of the
said amount which direction is not relevant considering the fact that
the First Appeal itself is being heard.
3. The facts giving rise to the above First Appeal can, in brief,
be stated thus :-
4. The above First Appeal has been filed by the insurance
company i.e. United India Insurance Company Ltd. The respondent
nos.1 to 3 are the original claimants who are the wife, son and
daughter of deceased one Yashwant Zima Kamble. The said Yashwant
was travelling along with one Ananda Thorat, Hindurao Thorat,
Akaram Krishna Thorat and Tukaram Dnyanu Patil by truck no.MXL
6844 owned by the opponent no.2 i.e. respondent no.4 Gajanan
Bhiksheth Kesarkar. The said truck was loaded with sand. The owner
of the sand was the said Tukaram Patil and the deceased Yashwant,
along with others, were traveling as coolies for unloading the truck at
Kolhapur. It seems that when the truck came near village Balinge on
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Kolhapur-Gaganbavada Road, it turned turtle. The said Yashwant
Kamble suffered serious injuries and died on the spot. The other
occupants namely Akaram Thorat and Tukaram Patil also died in the
said accident. It seems that the police recorded an F.I.R. and
registered a crime in respect of the said accident. The claimants
thereafter filed the instant Claim Petition No.67 of 1992. The total
compensation claimed in the said claim petition was Rs.2,12,000/-
which was divided into an amount of Rs.2,00,000/- towards loss of
dependency, Rs.10,000/- towards loss of consortium and funeral
expenditure to the extent of Rs.2,000/-. The appellant herein who
was the opponent no.3 and the owner of the vehicle who was the
opponent no.2, filed their written statements. In the said written
statements, they denied the claim of the applicants. It was also
denied that the said accident had taken place on account of rash and
negligent driving of the truck by the opponent no.1 i.e. the driver. It
was also contended on behalf of the insurance company that the said
truck was a goods vehicle and therefore passengers are not allowed to
travel in the said truck. It was contended that since at the relevant
time the passengers were being carried in the said truck, there was a
breach of the policy conditions and therefore the insurance company
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could not be made liable for the payment of compensation.
5. On the basis of the pleadings, the M.A.C.T. framed the
issues which were inter alia revolving around whether the claimants
prove that the accident had occurred on account of rash and negligent
driving of the truck bearing registration no.MXL 6844 and whether
the claimants prove that they are entitled to get compensation from
the opponents. The M.A.C.T. answered the said issues in favour of the
claimants. Insofar as the evidence is concerned, Smt. Vimal Kamble,
wife of deceased Yashwant Kamble, examined herself as PW 1. She
also produced the police case-papers i.e. F.I.R. (Exh.46), spot
panchanama (Exh.47), inquest panchanama (Exh.48), post-mortem
report (Exh.49), Insurance Certificate (Exh.50) and RTO Certificate
(Exh.51). Insofar as the opponents in the claim petition are
concerned, it seems that they did not seriously challenge the manner
in which the accident had occurred, but were more on the quantum of
compensation to be awarded. The truck driver himself did not appear
though served and his name was thereafter deleted. It is on the basis
of the material which was on record that the M.A.C.T. recorded
findings on the issues which have been adverted to hereinabove. On
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behalf of the insurance company, the principal contention that was
urged was that the truck was a goods vehicle and the driver, therefore,
was not entitled to carry passengers. The insurance company also
examined one Rangrao Govind Patil, Branch Manager of United India
Insurance Company and one Nivrutti Ishwara Patil, retired Police Sub-
Inspector who was the investigator appointed by the insurance
company. It seems that the said evidence was relied upon in the other
cases which were filed by the heirs of the deceased who had died in
the same accident. The M.A.C.T., having regard to the evidence of the
Branch Manger and the investigator, recorded a finding that the
testimony of the Branch Manager is not reliable and that the
testimony of the investigator Nivrutti Patil is of no help to the
insurance company. The M.A.C.T. refused to accept the said evidence
on the ground that the witnesses did not have any direct knowledge of
the accident and did not collect any information separately and simply
relied on the police papers. The M.A.C.T. recorded a finding that the
policy in question admittedly covers the coolies, driver and cleaner
and at the material time, the truck was found loaded with sand and
was going to Kolhapur for unloading and therefore the case of the
insurance company that the persons who were traveling in the truck
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were passengers, could not be accepted. The M.A.C.T. referred to the
oral testimony of the widow Vimal who had testified that her husband
was working as a coolie on the truck of said Kesarkar. The M.A.C.T.,
therefore, held that having regard to the evidence on record, the
insurance company cannot be absolved from its liability. Insofar as
the income of the deceased Yashwant is concerned, the M.A.C.T. held
that there was evidence on record to prove that the said Yashwant was
working as a coolie on the truck of the said Kesarkar. The M.A.C.T.,
therefore, held that having regard to the evidence on record, the
insurance company cannot be absolved from its liability. Insofar as
the income of deceased Yashwant is concerned, the M.A.C.T. held that
there was evidence on record to prove t hat the said Yashwant was
working as a coolie on the truck of said Kesarkar. However, there was
no documentary evidence to show that he had any additional income
as a broker in the business of selling sheep and goats. The M.A.C.T.
adverted to the fact that the deceased was 35 years of age when he
died and therefore assuming his monthly income as Rs.1,000/- and
discounting 50% amount for the personal expenses, the M.A.C.T. held
that the monthly dependency would be Rs.700/- and the yearly
dependency would be Rs.8,400/-. Hence by applying the multiplier of
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50, the amount comes to Rs.1,26,000/-. The M.A.C.T. granted
Rs.10,000/- for loss of consortium to the widow and Rs.2,000/- for
funeral expenses, thus totalling to Rs.1,38,000/- awarded as
compensation to the claimants. As indicated above, the M.A.C.T. has
partly allowed the petition to the extent mentioned in the early part of
this order.
6.
The learned Counsel Mr. Ketan Joshi for the respondent
no.1/ original appellant insurance company, seeks to reiterate the case
of the appellant - insurance company - before the M.A.C.T. It was the
submission of Mr. Joshi that the truck in question was a goods vehicle
and therefore, the truck driver was not entitled to carry any
passengers in the said vehicle. In the instant case, since the
passengers have expired in the accident, the insurance company
cannot be made liable. This was the main contention of the learned
Counsel for appellant.
7. Per Contra, Mr. A. S. Patil learned Counsel for
Applicants/Original Respondent Nos.2 and 3/original claimants,
would support the impugned award of the M.A.C.T. It was the
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submission of learned Counsel that the M.A.C.T. has allowed the claim
petition having regard to the material which has come on record.
8. Heard the learned Counsel for parties and considered the
rival contentions, the award passed by the M.A.C.T. has been
principally challenged by the insurance company on the ground that it
could not have been made liable for the payment of compensation as
the vehicle in question was being used contrary to the terms and
conditions of the policy. The said contention is urged on the basis that
the deceased were traveling in the said truck as passengers and
insofar as the manner in which the accident has occurred, as indicated
above, the insurance company did not question the manner in which
the accident has occurred. However, its principal grievance is that it
could not be made liable having regard to the terms of the policy.
Insofar as the terms of the policy are concerned, it has come on record
that the insurance policy covered the driver, cleaner and 5 coolies.
Insofar as whether the deceased Yashwant was a coolie or not, there
could not be any dispute in view of the fact that the evidence of his
wife Vimal has gone unchallenged. It was, therefore, proved that the
said Yashwant Kamble was a coolie who was traveling with the truck
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to Kolhapur so as to unload it at the said destination. The M.A.C.T.
has rightly discountenanced the evidence of the witnesses of the
appellant for the reasons mentioned in the impugned Judgment. The
learned Counsel for appellant relied upon the Judgment reported in
the case of Mallawwa and others Vs. Oriental Insurance Co. Ltd.
and others1. In the light of the evidence on record, the said Judgment
would not further the case of the appellant in so far as its liability is
concerned.
9. Insofar as the quantum is concerned, it is required to be
noted that there is no serious challenge to the quantum and therefore
this Court is not required to go into the said aspect. In any event, the
M.A.C.T. has rightly come to a conclusion that the income of the
deceased as a coolie was Rs.1,000/- per month and therefore, arrived
at the total dependency of Rs.1,26,000/- and adding the other
amounts by way of consortium and funeral expenses, has awarded the
total sum of Rs.1,38,000/-. It is required to be noted that the accident
has taken place in the year 1992. It seems that during the pendency
of the above first appeal, the claimant no.1 Vimal Kamble has expired.
1 1999 ACJ 1
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It seems that the claimant nos.2 and 3 have also got married during
the pendency of the appeal for which they have incurred expenses. In
my view, therefore, no case for interference in the impugned order
passed by the M.A.C.T., Kolhapur, is made out. The above First Appeal
is accordingly dismissed.
10. In view of the dismissal of the First Appeal, the above Civil
Application does not survive and to accordingly stand disposed of as
such.
(R. M. SAVANT, J.)
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