Bombay High Court
The New India Assurance Co. Ltd. ... vs Shahinbee Shalik Rauf And Others on 16 June, 2016
Bench: V.K. Jadhav
1 FA 3343.2015+CA.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3343 OF 2015
WITH
CA/16302/2015 IN FA/3343/2015
WITH
CA/2238/2016 IN FA/3343/2015
The New India Assurance Co. Ltd.,
Through its Manager (Legal Hub),
D.O. No. I, Adalat Road, Aurangabad,
R/o Aurangabad.
Through its authorized signatory
...Appellant
(Orig. Res. No.3)
Versus
1. Shahinbee w/o Shalik Rauf,
Age 41 years, Occ. Household,
R/o Tanda Bazar, Tq. Sillod,
District Aurangabad.
2. Shaikh Rauf Shaikh Kankar,
Age 43 years, Occ. Labour,
R/o Tanda Bazar, Tq. Sillod,
District Aurangabad.
3. Shahnurkha Noorkha Pathan,
Age 48 years, Occ. Driver,
R/o Phulambri, Tq. Phulambri,
District Aurangabad.
4. Sandu s/o Punjaba Warkad,
Age Major, Occ. Business,
R/o Lasurgaon, Tq. Vaijapur,
District Aurangabad. ...Respondents
(R.1&2 Ori.Claimants
R.3&4 Ori. R.1&2)
::: Uploaded on - 18/06/2016 ::: Downloaded on - 30/07/2016 05:37:55 :::
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...
Advocate for Appellant : Mr M M Ambhore
Advocate for Respondent Nos. 1 & 2 : Mr P C Mayure
Advocate for Respondent Nos. 3 & 4 : Mr P S Pande and
Mr. K K Choudhry
...
CORAM : V.K. JADHAV, J.
Dated: June 16, 2016
...
ORAL JUDGMENT :-
1. With the consent of learned counsel for respective
parties, heard finally.
2. Being aggrieved by the Judgment and Award
passed by the Member, Motor Accident Claims Tribunal,
Aurangabad dated 15.7.2015 in MACP No.527/2012,
original respondent no.3/Insurer has preferred this
appeal.
3. Brief facts, giving rise to the present appeal are as
follows :-
a] On 20.1.2012 deceased Shaikh Naveed and one
Shaikh Abdul Rauf were proceeding by motorcycle
bearing registration No. MH-20/BE-8311 towards village
Tanda (Bazar) on Khultabad-Phulambri road. At that
time, Shaikh Abdul Rauf was driving the motorcycle and
3 FA 3343.2015+CA.odt
deceased Shaikh Naveed was the pillion rider. On way,
near Wadod Bazar, their motorcycle slipped due to
bricks scattered on the road. One tempo bearing
registration No.MH-20/BT-4485 was turned turtled
some hours prior to this accident and the rider of the
motorcycle could not see the bricks scattered on the
road due to night time. In consequence of which, both
of them fell down on the ground and deceased Shaikh
Naveed sustained injuries on his head, both legs,
backbone and other parts of the body. He was
immediately taken to the Primary Health Center, Sillod
and thereafter shifted to Dunakhe Hospital at
Aurangabad. He was hospitalized and remained under
treatment till 11.2.2012. Even thereafter, he had taken
treatment at MGM Hospital, Aurangabad and also in
Government Hospital till 17.3.2012. However, on
28.5.2012 he died at PHC, Sillod while under treatment.
The claimants have incurred huge expenses towards
treatment of deceased Naveed. The accident said to
have been occurred on account of the negligence of
respondent no.1 who had not taken care to remove the
bricks scattered on the road, nor marked any sign etc.
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on the road indicating that bricks are scattered on the
road. It is further contended that respondent no.1 was
solely responsible for the accident. Respondents-
claimants preferred claim petition before the Motor
Accident Claims Tribunal, Aurangabad for grant of
compensation under various heads. It is also contended
in the claim petition that prior to the accident, deceased
Naveed was serving as a supervisor in one Jay Bhadra
Traders, Sillod on monthly salary of Rs.6,000/- and
claimants (present respondent nos. 1 and 2) were
entirely depending on his income.
b] Original respondent nos.1 and 2 have strongly
resisted the claim petition by filing their written
statement. According to them, accident had taken place
on account of negligence of the motorcycle rider Sk.
Abdul Rauf and he was not holding valid and effective
driving licence at the relevant time. It is further
contended that, offending tempo was going from Lonar
to Phulambri loaded with bricks and at about 03.30
p.m., as one small boy suddenly came on road,
respondent no.1 applied brakes to the tempo, however,
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said tempo turned turtled and bricks loaded on the said
tempo scattered on the road. It is also contended that,
respondent no.1, with the help of labours present in the
tempo, removed the bricks scattered on the road and
made the road clear for traffic on 4.00 pm onwards.
c] Appellant/insurer (original respondent no.3) has
strongly resisted the claim petition by filing written
statement. It is contended that Abdul Rauf, who was
riding the motorcycle at the time of accident, alone was
responsible for the accident. He was not holding valid
and effective driving licence. It is also contended that,
while driving the motorcycle, Abdul Rauf did not take
care and he tried to drive the motor cycle on bricks and
therefore, accident had taken place. It is also contended
that, claimants have claimed exorbitant amount of
compensation.
d] In the light of the pleadings of the parties, learned
Member of the Tribunal framed issues. The
respondents, in support of their rival contentions
adduced oral as well as documentary evidence. Learned
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Member of the Tribunal Aurangabad, by its impugned
judgment and award dated 15.07.2015, partly allowed
the claim petition with proportionate costs and thereby
held respondent nos.1 to 3 jointly and severally liable to
pay an amount of Rs.13,72,000/- towards compensation
to the claimants. Being aggrieved by the same, original
respondent no.3/insurer has preferred this appeal.
4.
The learned counsel for the appellant/insurer
submits that said accident involving the tempo bearing
registration No. MH-20/BT-4485 occurred at about
03.30 p.m./04.00 p.m. on 20.1.2012 and the accident
giving rise to the present claim petition occurred at
about 07.15 p.m. Learned counsel submits that if the
proximity test is applied, then there is no nexus between
the earlier accident and later accident which is the
subject matter of the present appeal/claim. Learned
counsel submits that claimants have not impleaded the
owner and insurer of the said motor cycle involved in the
accident. Learned counsel submits that rider of the
motorcycle is responsible for the accident and said
accident has not taken place out of the use of the motor
7 FA 3343.2015+CA.odt
vehicle tempo. Learned counsel submits that the
claimants have failed to prove income of deceased
Shaikh Naveed. Learned counsel submits that, deceased
Shaikh Naveed was 20 years of age at the time of his
accident and it is difficult to believe that at such young
age, he was serving as supervisor in Jai Bhadra
Traders, Sillod. Learned counsel submits that, the
claimants have examined employer of the deceased, who
has admitted in his cross examination that at the
request of the claimants, he had appeared before the
Tribunal for giving his evidence. Learned counsel
submits that claimants have produced on record false
salary certificate and in fact, deceased was not serving
as supervisor in the said private trading company.
Learned counsel submits that even though employer of
the deceased has not deposed anything about future
prospects of the deceased Naveed, the Tribunal has
made addition of income by considering future
prospects and awarded exorbitant amount of
compensation under the heads of loss of future income.
Learned counsel submits that, even the Tribunal has
awarded Rs.75,000/- towards loss of love and affection
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and Rs.50,000/- towards mental agony and pains and
sufferings, erroneously.
5. Learned counsel for the appellant, in order to
substantiate his contentions, places reliance on the
decision of this Court in the case of The New India
Assurance Co. Ltd. vs. Smt. Alpa Rajesh Shah &
Ors., reported in 2014(4) ALL MR 172.
6] Learned counsel appearing for the
respondents/original claimants submits that FIR
Exh.33 and Crime Details Report at Exh.34,
unmistakenly point out that even at about 8/8.30 p.m.,
number of bricks were found scattered everywhere at
the spot of accident. There is no substance in the
evidence of respondent no.1 that he alongwith others
removed bricks from the road and made the road clear
for traffic from 4.00 p.m. onward. Learned counsel
submits that subsequent accident, which is the subject
matter of the present appeal, occurred in between 7.15
p.m. to 8.00 p.m. It was almost a night time and in
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absence of any sign, marks placed on road, it was not
possible for rider of the motor cycle to notice the bricks
lying on the road. Learned counsel submits that, it
cannot be expected from the rider of the motor cycle to
anticipate without any signal or indicator that bricks
are lying on the road and the vehicle is required to be
driven carefully. Learned counsel submits that the
claimants have established the casual relation between
the initial accident occurred to the tempo and the
subsequent accident to the motorcycle. Learned counsel
submits that the Tribunal has rightly come to the
conclusion that the accident, which is subject matter of
the present claim, occurred out of the use of the motor
vehicle tempo bearing registration No. No.MH-20/BT-
4485. Learned counsel submits that, deceased Shaikh
Naveed was 20 years old at the time of his accidental
death. He was working as a supervisor in the trading
company since two years prior to his death.
7. Learned counsel for the respondents/original
claimants submits that PW5-Gavande, who was the
employer of deceased Shaikh Naveed, has deposed that
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deceased Naveed was working in his shop as supervisor
since 2 years on monthly salary of Rs.6,000/-. Salary
certificate is placed on record and the same is marked
as Exh.82. Learned counsel submits that, considering
the young age of deceased Shaikh Naveed, Tribunal has
rightly made addition of income by considering his
future prospects. Learned counsel submits that, by
considering the age and income of deceased, Tribunal
has awarded just and reasonable compensation. There
is no substance in the appeal and thus, the appeal is
liable to be dismissed.
8. Learned counsel for respondents/original
claimants, in order to substantiate his contentions,
placed reliance on a judgment delivered by the Supreme
Court in the case of New India Assurance Co. Ltd. vs.
Yadu Sambhaji More & Ors., reported in 2011 (2) SCC
416.
9. I have also heard learned counsel for respondents
No.3 and 4.
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10. On careful perusal of the contents of the FIR
Exh.33, it appears that after the accident, API has
lodged the complaint on behalf of the State in the
concerned police station. He himself has drawn spot
panchnama. It is specifically mentioned in the spot
panchnama that in the after noon time, at the spot of
accident, one tempo bearing registration No.MH-20/BT-
4485 turned turtled and bricks loaded in the said tempo
were scattered on road. It is further mentioned in the
FIR that, said bricks were scattered on the road and
driver of the said tempo has not bothered to remove the
bricks in order to clear the road for traffic. On the basis
of said complaint, crime came to be registered against
the respondent driver of the tempo. Furthermore, on
perusal of the contents of the spot panchnama Exh.34,
which was drawn in between 8.00 to 8.30 p.m. on the
same day, it appears that there is specific mention that
number of bricks were lying on the road in scattered
condition. It further appears from the boundaries of the
spot of accident that, there is no village or any other
residential or commercial complex near the spot and
even the street lights were also not there on the road
12 FA 3343.2015+CA.odt
near the spot of accident. Even said tempo was found
there near the spot in damaged condition. It thus
appears that respondents had not removed scattered
bricks from the spot.
11. In light of the above evidence, in my considered
opinion, respondents-claimants have established the
casual relation between the earlier accident to the tempo
and subsequent accident involving the motorcycle.
Motorcycle rider was not in a position to notice in the
night time, the bricks lying on the road and
consequently, the motorcycle slipped on road. In
consequence of which, deceased Shaikh Naveed had
sustained injuries and succumbed to the said injuries
after taking treatment in various hospitals. The learned
Member of the Tribunal has therefore, rightly recorded
findings in the affirmative to issue no.1 that said
accident occurred on account of rash and negligent
driving of the tempo bearing registration No.MH-20/BT-
4485 by its driver, and as a consequence of which,
Shaikh Naveed sustained injuries and died.
13 FA 3343.2015+CA.odt
12. So far as quantum of compensation is concerned, I
do not find any fault in the finding recorded by the
Tribunal. The respondents-claimants have duly proved
the salary certificate Exh.82. PW 5-Anil Gavande, who
was the employer of the deceased, has stated in his
cross examination that he is having a shop and deals in
the business of selling building materials. He has
further stated in cross examination that, he is having
registration certificate and further he is maintaining
books of accounts and also paying income tax. Simply
because he has admitted that entry was not taken in
account book about the salary being paid to deceased
Shaikh Naveed, his oral evidence cannot be discarded.
Deceased Naveed was his employee till his accidental
death. In view of the same, at the request of the
claimants-parents, PW 5-Anil Gavande has appeared
before the Tribunal to prove contents of salary certificate
issued by him. I do not think that only on that count
his oral evidence is liable to be discarded.
13. The learned Judge of the Tribunal has rightly
considered young age of deceased Shaikh Naveed and
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accordingly made addition of income by considering his
future prospects. Deceased Shaikh Naveed was 20 years
old at the time of his accidental death. At such an
young age, he was working as a Supervisor in the said
Trading Company and maintaining his family consisting
of his old aged parents. This Court, in a case The New
India Assurance Co. Ltd. vs. Smt. Alpa Rajesh Shah
(supra), in paragraph no.12 of the Judgment, has made
following observations :-
"12. Thus, there is no prohibition on considering the
future prospects of increase in the earning of the
deceased who was self employed. However, the
claimants must produce satisfactory evidence to
show that there were genuine prospects of
increase or enhancement in the earnings of the
deceased. The observation of the Apex Court in
case of Reshma Kumari, [2013(3) ALL MR
460 (S.C.)] (supra) means that normally in case
of a deceased who was self employed, the
Tribunal cannot take int account the future
prospects of increase in earnings of the
deceased. However, only when there is strong
and positive evidence on record to show that
there were definite prospects of increase in the
income of the deceased in future, such a case
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can be treated as an exceptional case in which
future prospects of increase in the earning can
be considered by the Tribunal."
14. Thus there is no prohibition for considering the
increase in the earning capacity of deceased. In the case
in hand, considering the young age of deceased Shaikh
Naveed and the fact that he was working as a
Supervisor in the said trading company at such young
age, itself indicates genuine prospects of increase or
increment of his earnings in future. Tribunal has rightly
considered this case as an exceptional case and
accordingly made addition in income by considering the
future prospects.
15. It further appears from the impugned judgment
and award that the tribunal has considered medical
expenses. Respondents-claimants have proved medical
bills, etc., by examining the accountant in Dunakhe
Hospital and one shop keeper of a medical shop.
However, it appears that, Tribunal has erroneously
awarded compensation under the heads of love and
affection and towards mental agony and pains and
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sufferings. The Tribunal has not awarded compensation
under the head of loss of estate. Instead of awarding
Rs.75,000/- under the head of love and affection,
Rs.25,000/- can be awarded to the claimants as a
compensation towards loss of estate. It is well settled
that in case of death claim, compensation towards
mental agony and pains and sufferings of the claimants
cannot be assessed and compensation cannot be
awarded under the same. In view of the same,
compensation of Rs.50,000/- awarded by the Tribunal
under that head is quashed and set aside.
16. In view of the above, re-calculation of the
compensation is therefore necessary. Thus, the brake
up of compensation which can be broadly categorized is
as under :-
1. Loss of future income
/dependency Rs.9,72,000/- (awarded by tribunal)
2. Loss of Estate Rs.0,25,000/-
3. Medical and incentives Rs.2,50,000/- (awarded by tribunal)
4. Funeral expenses Rs.0,25,000/- (awarded by tribunal)
============
Rs.12,72,000/-
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In view of the above discussion, I proceed to pass
the following order.
O R D E R
I. Appeal is hereby partly allowed with
proportionate costs.
II. The impugned Judgment and Award passed by
the Member, Motor Accident Claims Tribunal,
Aurangabad dated 15.07.2015 in MACP
No.527/2012 is hereby modified in the
following manner :-
"The claimants are entitled for the
compensation of Rs.12,72,000/- (Rs Twelve
Lacs seventy two thousand only) and
respondents No.1 to 3 are jointly and severally
liable to pay the same with interest as awarded
by the Tribunal."
III. Rest of the Judgment and Award passed by the
Tribunal stands confirmed.
IV. Award be drawn up in tune with the above
modification.
V. Needless to say that the respondents-claimants
are at liberty to withdraw the compensation
amount deposited by the appellant-insurer
before this Court.
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VI. Appeal is accordingly disposed of. Pending civil
applications also stand disposed of.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
