Icici Lombard General Insurance ... vs Vishnudas Pandu Malwad And Others
2016 Latest Caselaw 2823 Bom

                                                                                 fa61.15
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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                     
                                FIRST APPEAL NO. 61 OF 2015
                               WITH CA/206/2015 IN FA/61/2015


     ICICI Lombard Genera




                                                    
     Insurance Company Limited
     Through its Legal Manager
     At Adalat Road, Aurangabad                               ...Appellant

              versus




                                          
     1.       Vishnudas s/o Pandu Malwad,
                             
              Age 46 years, Occ. Nil

     2.       Muktabai w/o Vishnudas Malwad
              Age 41 years, Occ. Household
                            
              Both R/o. Selu, Tq. Renapur
              District latur                                  (Ori. Claimants)

     3.       Rajabhau s/o Janardhan Dhakpade
              Age major, Occ. Business,
      


              owner of Vehicle No. MH-25-R-0897
              R/o. Dhoki,
   



              Tq. and District Osmanabad

     4.       Belapan s/o Bhaurao Kaste
              Age major, Occ. Driver of Vehicle





              No. MH-25-0897
              R/o. Dhanora, Tq. Ausa,
              District Latur                                  ...Respondents

                                            ...
                     Advocate for Appellant : Mr. Choudhari Abhijit G





                    Advocate for Respondents 1 and 2: Mr. S.S. Shinde
                      Advocate for Respondent No.3 : Mr. D.S. Mali
                                           .....

                                                  CORAM : V. K. JADHAV, J.

DATED : 14th JUNE, 2016 ORAL JUDGMENT :-

1. Being aggrieved by the judgment and award dated 26.8.2014,

passed by the learned Ex-Officio Member, M.A.C.T. Latur in

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M.A.C.P. No. 82 of 2013, the original respondent No.3 insurer

preferred this appeal to the extent of quantum.

2. Brief facts, giving rise to the present appeal, are as follows:-

a) On 03.02.2013, at about 10.30 p.m. deceased Sachin was

riding his motor cycle bearing registration No. MH-14-6585 from

Nilanga to Renapur. On way, within the limits of village Lodga, near

Tondwali Mode, one Tata Indica car bearing registration No. MH-25-

R-0897 came in high speed from opposite direction and gave a dash

to the motor cycle of deceased Sachin by coming on wrong side. In

consequence of which, deceased Sachin, who was riding the motor

cycle and one Khalid, who was pillion rider, sustained multiple

injuries. They were immediately taken to Civil Hospital Latur, where

the Medical Officer, on arrival declared them dead.

b) The claimants/the parents of deceased Sachin preferred claim

petition before the M.A.C.T. Latur for grant of compensation under

various heads. It is contended that deceased Sachin died due to rash

and negligent driving of car by respondent No.2, owned by

respondent No.1 and insured with respondent No.3. Deceased

Sachin was working as driver on monthly salary of Rs.7000/- p.m.

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c) Respondent Nos. 1 and 2 have strongly resisted the claim

petition by filing written statement. According to them, accident took

place on account of rash and negligent driving of motor cycle by

deceased. Respondent No.3 insurer has also strongly resisted the

claim petition by filing written statement at Exh.22. It is contended

that the deceased Sachin himself was responsible for his death. It is

contended that he was driving the motor cycle in rash and negligent

manner and in high and excessive speed. It is also contended that

respondent No.2 has committed breach of condition of policy.

d) On the basis of rival pleadings of the parties to the claim

petition, the learned Member of M.A.C.T. Latur framed issues and

after considering the evidence led by the parties, the learned

Member of Tribunal allowed the claim petition with costs and thereby

directed the respondents to pay Rs.11,38,500/- jointly and severally

to the claimants with interest. Hence, this appeal.

3. Learned counsel for the appellant-insurer submits that the

claimants have failed to prove the salaried income of deceased

Sachin. The Tribunal has committed error by relying upon oral

evidence of son of so called employer of deceased Sachin and

without any documents placed on record about salary being paid to

the deceased, the tribunal has considered the income of deceased

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Sachin as Rs.7000/- p.m. Even the Tribunal erroneously considered

the future prospects of deceased Sachin and accordingly enhanced

the income of deceased to the extent of 50% for computation of

compensation. Learned counsel for the appellant, in order to

substantiate his submissions, placed reliance on the following

cases:-

i. National Insurance Co. Ltd. Vs. Pushpa, reported in

(2015) 9 SCC 166;

ii. Shashikala and Ors. vs. Gangalakshmamma and ors., reported in (2015) 9 SCC 150;

iii. Rajesh and others vs. Rajbir Singh and others,

reported in (2013) 9 SCC 54

iv. National Insurance Co. Ltd. vs. Vaishali Harish

Devare and Ors, reported in 2013 (4) Bom.C.R. 782

v. The New India Assurance Co. Ltd. vs. Smt. Alpa

Rajesh Shah and Ors, reported in 2014 94) ALL MR

4. Learned counsel for the respondents-original claimants

submits that the claimants have examined son of employer of

deceased Sachin. The original employer of deceased Sachin is no

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more and therefore, the claimants have examined his son. P.W.2

Abhishek has deposed that deceased Sachin was in his service as

driver of the car and the said car was in the name of his father. He

has further deposed that they were giving salary of Rs.7000/- p.m. to

deceased Sachin. Deceased was in private job and usually in such

private jobs, no record is maintained about the salary being paid to

the driver employed for the purpose of driving the private car owned

by the employer. The Tribunal has rightly considered the oral

evidence of P.W.2 Abhishek and after considering the future

prospects enhanced the actual income of deceased to the extent of

50% for computation of compensation. Deceased Sachin met with

accidental death at young age and the tribunal has therefore, rightly

considered his future prospects. Learned counsel submits that there

is no substance in the appeal and the appeal is liable to be

dismissed.

5. P.W.2 Abhishek has admitted in his cross examination that his

father was paying salary to Sachin. He has further stated in his cross

examination that they have not maintained the account of salary paid

to Sachin and they have also not taken receipt from deceased

Sachin for payment of salary. He has further admitted that deceased

Sachin belongs to his community. It appears that he has deposed

about the salary being paid to deceased Sachin on some higher side.

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Deceased Sachin was serving as driver on private car and at the

most he might be getting salary in between Rs.5000/- to Rs.6000/-

considering the day to day activities of his employer. In absence of

any documentary evidence, at the most, the salary of deceased

Sachin can be considered to the extent of Rs.6000/- p.m. and no

more than that. Deceased Sachin was 23 years old at the time of

accident. The Tribunal has considered the actual income of

deceased and enhanced the same by addition 50% for the purpose

of computation of compensation by considering the future prospects.

In the case of Rajesh vs. Rajbir Singh (supra) such addition in

income by considering future prospects is also extended to self

employed or a person on fixed wages.

6. It is true that in the case of New India Assurance Co. Ltd. vs.

Smt. Alpa Rajesh Shah, (supra), this court has observed that there

is no prohibition on considering future prospects of increase in

earning of deceased, who was self employed. However, claimants

must produce satisfactory evidence to show that there were genuine

prospects of increase in earning of deceased. In the case in hand,

deceased Sachin was only 23 years old at the time of accident. He

was having permanent driving licence to drive the light motor vehicle.

Certified copy of the same is placed on record and marked Exh.42. I

do not find any error in the impugned judgment and award in

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considering the future prospects of deceased Sachin by the Tribunal.

7. In view of the above discussion, if the salary of deceased

Sachin is considered as Rs.6000/- p.m. then recalculation of

compensation is required to be done. Considering the addition of

income to the extent of 50%, it can be said that there is loss of

income to the extent of Rs.9000/- p.m. corresponds to Rs.1,08,000/-

per year. From his yearly income, half of income is required to be

deducted towards personal expenses of deceased Sachin. Thus

yearly contribution to the family would be Rs.54,000/-. If this amount

is multiplied by 18, the total compensation comes to Rs.9,72,000/-. It

further appears that the tribunal has awarded very meager amount

towards loss of estate, funeral expenses. It has come on record that

after the accident, Sachin was taken to the Hospital at Latur where

he was declared dead on arrival. Thus, the dead body thereafter

brought to his village i.e. at Selu, Tq. Renapur. Thus, considering this

aspects, Rs.25,000/- would be just and appropriate for funeral

expenses. Further the Tribunal has awarded only Rs.2500/- for loss

of estate. Considering the age of deceased Sachin, the same is

increased by Rs.10,000/-. Thus, the claimants are entitled for total

amount of Rs.10,07,000/-. The appeal succeeds to that extent.

Hence, following order is passed:-

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ORDER

I. The appeal is hereby partly allowed.

II. The judgment and award dated 26.8.2014, passed by the

Ex Officio Member, M.A.C.T. Latur in M.A.C.P. No. 82 of 2013 is modified in the following manner;-

"The original respondent Nos. 1 and 3 shall jointly and severally pay an amount of Rs.10,07,000/- (Rupees Ten

lacs seven thousand only) inclusive of "no fault liability" under Section 140 of Motor Vehicles Act, with interest @

7.5% p.a. from the date of petition till realization of entire amount."

III. Rest of judgment and award stands confirmed.

IV. The award be drawn up in tune with the modification, as aforesaid,

V. Appeal is accordingly disposed of. No costs.

VI. Needless to add that the claimants are at liberty to

withdraw the amount deposited by the appellant-insurer before the Tribunal.

VII. In view of disposal of first appeal, civil application No. 206 of 2016 is also disposed of.

( V. K. JADHAV, J.)

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