Bombay High Court
Sarjubai Vishnudas Manme And ... vs Deepak Balbhimrao Suryawanshi ... on 10 June, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 297 OF 2014
1. Sarjubai w/o Vishnudas Manme,
Age - 45 years, Occu. Household,
2. Laxmikant @ Sham s/o Vishnudas
Manme,
Age 13 years, Occu. Education,
Claimant No. 2 is minor child of
deceased, u/g of claimant No.1.
Both R/o. Basweshwar Chowk,
Ring Road, Latur,
Taluka and District Latur. ... Appellants
Versus
1. Deepak Balbhimrao Suryawanshi,
Age - 36 years, Occ. Pvt. Service,
R/o. Old Ausa Road,
Near Lal Bhadur School,
Choudhary Nivas, at Latur,
Taluka and District Latur.
2. Nawaz s/o Mainoddin Pathan,
Age - major, Occu. Driver,
R/o. Yerol, Taluka Shirur Anantpal,
District Latur (Driver of car)
3. The New India Assurance Co. Ltd.,
Through its Branch Manager,
Jeevan Suman LIC building,
Flat no.3, N-5, CIDCO,
Jalgaon Road, Aurangabad.
4. Satyabhamabai w/o Laxminarayan
Manme,
Age - 65 years, Occu. Nil,
R/o. Veer Hanuman Wadi,
Manjeet Road, Latur. ... Respondents.
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WITH
FIRST APPEAL NO. 298 OF 2014
1. Manisha w/o Raghvendra Shastri,
Age - 39 years, Occu. Household,
2. Mansi D/o Raghvendra Shastri,
Age - 13 years, Occu. Education,
3. Mayur S/o Raghvendra Shastri,
Age - 9 years, Occu. Education,
Appellant Nos. 2 and 3 are minors,
u/g of their natural mother i.e.
appellant No. 1.ig
All R/o. C/o. M. G. Pandey
House No. 1/272, Old Adarsh Colony,
Ausa Road, Latur. ... Appellants.
Versus
1. Deepak S/o Balbhimrao Suryawanshi,
Age-major, Occu. Business,
R/o Yeshwantrao Chavan Shoping
Complex, Main Road, Latur.
2. The New India Assurance Co. Ltd.,
Through its Branch Manager,
Opp. Shahu College, Latur.
3. Sudhakar S/o. Purshottam Shastri,
Age - 70 years, Occu. Nil,
4. Sau. Sudha w/o Sudhakar Shastri,
Age - 65 years, Occu. Household,
Both R/o Vijay Housing Society,
Near Shivaji School, Latur.
5. Maharashtra State Electricity
Distribution Co. Ltd.,
Through its Cheif Engineer,
First Floor, Old Power House,
Salle Galli, Latur.
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6. Nawaz s/o Mohaddinkhan Pathan,
Age - 25 years, Occu. Driver of Car,
R/o Yerol, Tq. Shirur (Anantpal)
District Latur. ... Respondents.
.....
Mr. R. P. Adgaonkar, Advocate for the appellants
Mr. A. S. Usmanpurkar, Advocate for respondent No.3-insurer in FA
No.297/14
Mr. V. R. Mundada, Advocate for respondent No.2-insurer in FA No.
298/14
Mr. A. M. Gaikwad, Advocate for respondent No.5-MSEDCL in FA
No.298/2014
.....
ig CORAM : V. K. JADHAV, J.
DATED : 10th JUNE, 2016
ORAL JUDGMENT:-
1. Heard finally by consent of learned counsel for the respective
parties.
2. Being aggrieved by the common judgment and award dated
21.10.2013 passed by learned Member, Motor Accident Claims
Tribunal, Latur in M.A.C.P. No. 106 of 2009 (Manisha w/o
Raghvendra Shastri and others v/s Deepak S/o Balbhimrao
Suryawanshi and others) and M.A.C.P. No. 225 of 2009 (Sarjubai
w/o Vishnudas Manme and another v/s Deepak Balbhimrao
Suryawanshi and others), the original claimants have preferred two
separate appeals, bearing First Appeal No. 298 of 2014 and 297 of
2014 respectively.
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3. Brief facts giving rise to the present appeals are as follows:
a) Deceased Raghvendra Shastri was serving as Junior Engineer
and deceased Vishnudas Manme was serving as Helper in
M.S.E.D.Co.Ltd. at Latur. On 25.03.2008, at about 8:30 a.m. on
Pune-Mumbai express Highway, near village Theku, District Thane,
both of them while travelling in Indica car bearing registration No.
MH-24-C-7486, met with vehicular accident as the said car dashed
against an unidentified moving container from its back side while the
said container was ahead of the Indica car. In consequence of
which, both of them sustained severe injuries and were admitted in
MGM Hospital at Kalambuli, District Thane. Deceased Vishnudas
Manme succumbed to the injuries on the day of the vehicular
accident while under treatment, whereas on the next day, deceased
Raghvendra Shastri, while undergoing treatment, died in the said
hospital. The legal representatives of both of them preferred two
separate claim petitions before the M.A.C.T., Latur for grant of
compensation under various heads. It is contended that the
vehicular accident has occurred on account of rash and negligent
driving of driver of said Indica car in which deceased Raghvendra
and deceased Vishnudas were travelling. It is further contended that
respondent No.1, who is the owner of said car involved in the
accident, was the friend of both the deceased, and out of said
friendly relationship, he had provided said car to them for travelling
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from Latur to Bombay. It is alternatively contended that the said
Indica car involved in the vehicular accident was hired by respondent
No.5-MSEDCL, Latur for official use and deceased Raghvendra
Shastri was heading to Bombay for official work in the said car. It is
therefore contended that respondents, i.e. the owner, the insurer and
the driver respectively, are jointly and severally liable to pay
compensation or, in the alternate, respondent No.5-MSEDCL is liable
to pay compensation. Respondent-owner and respondent-driver of
the car, though duly served with the notice of claim petitions,
remained absent and therefore, hearing of claim petition was ordered
to proceed ex-party. Respondent-insurer strongly resisted the claim
petitions by filing separate written statement in both the claim
petitions, however, the defence taken by respondent-insurer is
identical in both the claim petitions. It is contended that respondent
No.1 was the friend of deceased Raghvendra Shastri. It is further
contended that either deceased persons or respondent No.5-
MSEDCL, Latur hired the indica car for official work as both the
deceased, at the material time, being on duty, were heading to
Bombay for official work. It is also contended that the Indica car
involved in the vehicular accident is a private car and the same
cannot be provided on hire or reward basis and since the owner of
the said car had provided the car on hire to deceased or to MSEDCL,
Latur, though for official work, there has been breach of terms and
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conditions of the insurance contract, and as such, respondent-insurer
of the car is not liable to pay the compensation. It is also contended
that driver of the car, at the material time, was not holding valid and
effective driving licence.
b) Respondent No.5-MSEDCL has contested only the Motor
Accident Claim Petition No. 106 of 2009 by filing written statement. It
is contended that respondent No.5-MSEDCL never hired the car
involved in the accident for official work. It is also contended that if
deceased Raghvendra had hired said car for his journey, then his
individual act of hiring of the car does not fasten the liability on
respondent No.5-MSEDCL to pay compensation. It is also
contended that deceased Raghvendra was not authorized to hire any
vehicle for official use. As such, respondent No.5 is not liable to pay
compensation.
c) Parties have adduced oral and documentary evidence in
support of their rival contentions. Learned Member, M.A.C.T., Latur
has recorded findings that the accident took place due to rash and
negligent driving of the said indica car by its driver and deceased
Raghvendra and deceased Vishnudas died in the said vehicular
accident. Even learned Member of the tribunal has recorded the
finding that the insurance company has succeeded in proving that
owner of the car involved in accident committed breach of terms and
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conditions of the policy. Learned Member of the tribunal, by its
impugned judgment and award, allowed the MACP No. 106 of 2009
and held that the claimant Nos. 1 to 3 and respondent Nos. 3 and 4
in MACP No. 106 of 2009 are entitled for compensation of
Rs.39,97,740/- inclusive of amount of NFL, with interest from
respondent No.1-owner and respondent No.6-driver of the car, jointly
and severally. Similarly, in MACP No.225 of 2009, the claimant Nos.
1 and 2 and respondent No.4 are held to be entitled for
compensation of Rs.15,10,200/-, inclusive of amount of NFL, with
interest from respondent No.1-owner and Respondent No.2-driver of
the said car involved in the accident, jointly and severally. In both the
claim petitions, the claim against respondent-insurer came to be
dismissed. In MACP No.106 of 2009, MSEDCL is impleaded as a
party respondent No.5 and in the said claim petition, learned Member
of the tribunal dismissed the claim petition against respondent No.5-
MSEDCL. Being aggrieved by the same, the claimants in both the
claim petitions preferred two separate appeals to the extent of
exonerating respondent-insurer and also to some extent, the
quantum under the non-pecuniary heads.
4. Learned counsel for the appellants submits that learned
Member of the tribunal has erroneously exonerated respondent-
insurer in both the claim petitions. Learned Member of the tribunal
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exonerated respondent-insurer only on the basis of surmises and
conjectures. The tribunal has exonerated respondent-insurer on the
basis of conjectures drawn in the light of contents of the letter
Exh.59. Furthermore, the tribunal has also committed grave error
while relying on the police statement of respondent No.1.
Respondent No.1 has not contested the claim petitions by filing
written statement. On the other hand, he has failed to appear before
the tribunal in both the claim petitions though duly served. The police
statement is not a substantive part of evidence and the same is not
at all admissible in evidence. A police statement can be used to
contradict the witness and the same cannot be directly read in
evidence. Respondent-insurer has examined one witness Achyut
Purushottam Kulkarni, Administrative Officer of the insurer company.
He has admitted in his cross-examination that an investigator was
appointed by the insurance company to collect the details of the
vehicles involved in the accident and also the necessary information.
He has further admitted in his cross examination that during
investigation of crime and during the investigation by investigator
appointed by the insurance company, it was not revealed that the car
was hired or the passengers travelling therein had paid fare.
Further, he has not denied whether the claim of respondent No.1 in
respect of damage to the car has been satisfied by the insurance
company. He has further admitted that if there is a breach of
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insurance contract, then the insurance company invariably rejects the
own damage claim. The tribunal has not at all considered the
admissions given by this witness in his cross-examination.
Respondent No.5-MSEDCL, by examining the witnesses and by
calling before the tribunal the official record, proved that the vehicle
car involved in the accident was not hired by respondent No.5-
MSEDCL. Deceased Raghvendra was working as Junior Engineer
and deceased Vishnudas was working as Helper with respondent
No.5. Considering their official status, as also stated by respondent
No.5, none of them was entitled to hire a car for official work. If they
were not at all entitled to hire a car for official purpose, then there is
no question of reimbursement from the department. In that event,
deceased Raghvendra Shastri or deceased Vishnudas could not
have hired the car for going to Bombay from Latur for official work,
the probability, which is also not disputed by respondent No.1, is that
respondent No.1 being a friend of deceased Raghvendra, gave the
car to deceased Raghvendra for the said tour in friendly terms. The
approach of the tribunal is not proper, correct and legal, and
therefore, the impugned judgment and award to the extent of
exonerating respondent-insurer is liable to be quashed and set aside.
5. Learned counsel for the appellants further submits that though
the tribunal has rightly assessed the quantum of compensation, has
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awarded meager amount under the non-pecuniary heads such as,
loss of consortium, loss of love and affection and funeral expenses in
both the claim petitions. The tribunal has also committed error in
awarding interest at the rate of 6% p.a. Instead of 7.5% p.a.
6. Learned counsel for the appellants further submits that there is
no specific pleading by respondent-insurer about filing of the claim
petitions by the respective claimants in collusion with respondent
No.1. The burden is on respondent-insurer to prove the breach of
terms and conditions of the policy and in the given set of events,
respondent-insurer has failed to discharge the said burden. Learned
counsel, in order to substantiate his contentions, placed reliance of
the decision in following cases:
1. National Insurance Co. Ltd. vs. Swaran Singh and Ors,
reported in (2004) 3 SCC 297,
2. The New India Assurance Company Limited vs. Wahida
Bano and others, reported in 2013 (6) All MR 145,
3. Bajaj Allianz General Insurance Co. Ltd. vs. Ashwita
Arvind Poll, reported in 2015 (2) Bom.C.R. 359 and
4. Asha Verman and Ors. vs. Maharaj Singh and ors.,
reported in 2015 (4) SCALE 329.
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7. Learned counsel for respondent-insurer in both the appeals
submits that the letter Exh.59 is a material piece of evidence. Even
though the official record of respondent No.5-MSEDCL shows that
the vehicle involved in the accident was not hired by it, the contents
of the letter unmistakenly point out that the said vehicle was hired by
deceased Raghvendra Shastri for his visit to Bombay. Though the
burden is on respondent-insurer to prove breach of conditions of
policy, said burden can be discharged by leading oral/documentary
evidence or by way of cross-examination or by relying on the
documents tendered either by the claimants or any other respondent
before the tribunal. The respondent-owner has failed to appear
before the tribunal though duly served and that itself indicates that he
is supporting the case of the claimants. Even though there is no
direct pleading of collusion between the claimants on the one hand
and respondent-owner on the other, still then, conduct of respondent
No.1-owner in not contesting the claim petitions and the fact that the
same would be in his advantage, itself is sufficient to draw an
inference that there is a collusion between the claimants and the
respondent-owner. The tribunal has considered the police statement
of respondent No.1 to the extent that respondent No.1 is serving in
"Deepak Travels" in Latur, and therefore, there is every possibility
that he provided the vehicle to the customers on hire. The tribunal
has rightly considered the contents of the letter Exh. 59 and come to
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the conclusion that there has been breach of terms and conditions of
policy. Learned Member of the tribunal has correctly held that
providing of private vehicle on hire amounts to breach of terms and
conditions of the insurance policy. Respondent-owner has willfully
committed breach of terms of insurance contract and as such, the
tribunal has rightly exonerated respondent-insurer from paying
compensation to the claimants. Learned counsel submits that the
tribunal has correctly assessed the compensation even under the
non-pecuniary heads. There is no substance in the appeals and
thus, both the appeals are liable to be dismissed.
8. I have also heard learned counsel for respondent No.5-
MSEDCL.
9. It appears that the tribunal has given weightage to the contents
of letter Exh.59. It appears from the contents of the letter Exh.59 that
the same is addressed to the claimants in claim petition No. 106 of
2009 and issued by Deputy Chief Industrial Relation Officer,
Bombay. It is stated in the said letter that certain amount is payable
to the legal representatives of deceased Raghvendra under the
Workmen's Compensation Act in respect of his accidental death. By
the said letter, the claimants were called upon to state on bond
whether they intend to file claim petition before the Motor Accident
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Claims Tribunal or they are ready to accept the amount under the
Workmen's Compensation Act. What is material in the said letter, as
observed by learned Member of the tribunal, is the reference about
the vehicle stated to have been "hired for official work". There is no
reference in the said letter Exh.59 as to who has hired the said
vehicle car involved in the accident. There is a passing reference in
the said letter about hiring of the vehicle for official work.
Respondent No.5-MSEDCL has come with a specific pleading and
evidence that deceased Raghvendra, being a Junior Engineer and
deceased Vishnudas, being the helper, are not entitled by their
official status to reimbursement of the conveyance by using car.
Thus, the only possibility would remain that the vehicle must have
been hired by respondent No.5-MSEDCL for providing it to its
employees. Even the official record placed before the tribunal, on
perusal of the same, and considering the oral evidence of respondent
No.5 in this regard, the tribunal has come to the conclusion that
respondent No.5 has not hired the said car involved in the vehicular
accident. Learned counsel for the appellants-claimants has rightly
pointed out that in absence of entitlement for reimbursement of
expenses incurred in travelling by a car, the deceased persons were
not likely to hire the car for travelling such a long distance i.e. from
Latur to Mumbai.
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10. Learned Member of the Tribunal has observed that
respondent-owner is the best person to state that he had provided
the said vehicle out of friendship to the deceased for travelling from
Latur to Bombay, however, he has chosen not to contest the claim
petition. Learned Member of the tribunal, in para No. 46 of the
impugned judgment, has observed that the possibility cannot be
ruled out that both the deceased or one of them hired the car,
involved in the accident, for their journey from Latur to Bombay.
Learned Member of the Tribunal has further considered the police
statement of respondent No.1. It is well settled that police statement
can be used only for the purpose of contradiction and the same
cannot be used as a substantive piece of evidence. On the basis of
the said statement, learned Member of the tribunal has drawn a far
fetched conclusion that since respondent No.1-owner is serving in
Deepak Travels" at Latur and since first name of respondent No.1-
owner is "Deepak", there is every possibility that respondent-owner
had provided the said Indica car to the deceased on hire. Learned
counsel for the appellants/original claimants has rightly pointed out
that learned Member of the tribunal has drawn the said conclusion
only on the basis of presumption, assumption and conjectures.
11. Learned Member of the tribunal has given no reference at all to
the admissions given by the administrative officer of respondent-
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insurer. The said witness Achyut Kulkarni has admitted in his cross-
examination that even during the police investigation and the
investigation of private investigator appointed by respondent-insurer,
it was not revealed that the car involved in the accident was hired or
the passengers travelling therein had paid fare. Furthermore, if the
claim of own damage for the said car is submitted by respondent-
owner and if the same is accepted by respondent-insurer, then there
is no question of breach of insurance contract. Thus, considering the
case from any angle, I do not find that respondent-insurer has
discharged the burden of proving breach of conditions of insurance
contract. Learned Member of the tribunal has committed a grave
error to exonerate respondent-insurer from paying compensation
jointly and severally along with respondent-owner of the vehicle
involved in the vehicular accident.
12. Since this Court finds the respondent-insurer liable to pay
compensation jointly and severally with respondent-owner, I have
also heard learned counsel for respondent-insurer on the point of
quantum of compensation. Learned counsel submits that the tribunal
has awarded exorbitant amount of compensation, however, having
gone through the impugned judgment and award carefully, I do not
find that the tribunal has awarded compensation exorbitantly. It
appears that the tribunal has considered salaried income of both the
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deceased persons and by applying correct multiplier, assessed the
compensation.
13. So far as the compensation awarded under non-pecuniary
heads is concerned, it appears that the tribunal has awarded very
meager amount for loss of consortium, loss of love and affection and
funeral expenses. Claimant No.1 in MACP No.106 of 2009 was 35
years old at the time of accidental death of her husband, whereas,
claimant No.1 in MACP No.225 of 2009 was 45 years old at the time
of accidental death of her husband. In both the claim petitions, the
minor children are also the claimants. Considering the age of
claimant No.1 in respective claim petitions, it would be just and
proper if the amount of compensation for loss of consortium is
enhanced to Rs.50,000/- in MACP No. 106 of 2009 and to
Rs.25,000/- in MACP No.225 of 2009. The tribunal has awarded
Rs.5,000/- each for the minor claimants towards loss of love and
affection. It would be proper if the amount of Rs.10,000/- each is
awarded under the head of loss of love and affection. It would be
proper to award Rs.25,000/- towards funeral expenses in both the
claim petitions. In view of this, recalculation of compensation
awarded by the tribunal is necessary. Thus, the breakup of
compensation which can be broadly categorized as under:
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IN MACP No.106 of 2009
1. Loss of future income/ - Rs.39,64,740=00
dependency (as awarded by the tribunal)
2. Loss of consortium - Rs.00,50,000=00
3. Loss of love and affection for - Rs.00,20,000=00
(Rs.10,000/- each)
4. Loss of Estate - Rs.00,05,000=00
(as awarded by the tribunal)
5. Funeral expenses - Rs.00,25,000=00
---------------------------------
ig Total Rs.40,64,740=00
---------------------------------
IN MACP No. 225 of 2009
1. Loss of future income/ - Rs.14,87,200=00
dependency (as awarded by the tribunal)
2. Loss of consortium - Rs.00,25,000=00
3. Loss of love and affection for - Rs.00,10,000=00
4. Loss of Estate - Rs.00,05,000=00
(as awarded by the tribunal)
5. Funeral expenses - Rs.00,25,000=00
---------------------------------
Total Rs.15,52,200=00
---------------------------------
14. So far as the rate of interest is concerned, the appellants-
claimants are entitled for the interest at the rate of 7.5% p.a. from the
date of application till realization of the entire amount.
15. With these modifications, I proceed to pass the following
order :
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ORDER
I. First Appeal No. 297 of 2014 (Sarjubai w/o Vishnudas
Manme and another v/s Deepak Balbhimrao
Suryawanshi and others) and First Appeal No. 298 of
2014 (Manisha w/o Raghvendra Shastri and others v/s
Deepak S/o Balbhimrao Suryawanshi and others) are
hereby partly allowed with proportionate costs.
II.
The common judgment and award impugned in both the
claim petitions is hereby quashed and set aside to the
extent of dismissal of claim petitions against respondent-
New India Assurance Co. Ltd.
III The impugned common judgment and award passed by
the Member, MACT, Latur dated 21.10.2013 in MACP
No. 106 of 2009 (Manisha W/o Raghvendra Shastri and
others vs. Deepak S/o Balbhimrao Suryawanshi and
others) and MACP No. 225 of 2009 (Sarjubai W/o
Vishnudas Manme and another vs. Deepak S/o
Balbhimrao Suryawanshi and others) is hereby modified
in the following manner.
"In MACP No. 106 of 2009, the claimants are entitled for
the compensation of Rs.40,64,740/- and respondent
No.1/owner, respondent No.2/insurer and respondent
No.6/driver are jointly and severally liable to pay
compensation to the claimants with interest at the rate of
7.5% p.a. from the date of application till realization of
the entire amount.
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In MACP No. 225 of 2009 the claimants are entitled for the
compensation of Rs.15,52,200/- and respondent
No.1/owner, respondent No.2/driver and respondent
No.3/insurer are jointly and severally liable to pay
compensation to the claimants with interest at the rate of
7.5% p.a. from the date of application till realization of
the entire amount."
IV. Rest of the common judgment and award passed by the
tribunal stands confirmed.
V. Award be drawn up in tune with the modifications as
aforesaid.
VI Both the appeals are accordingly disposed of.
( V. K. JADHAV, J.)
vre/
