Bombay High Court
The New India Assurance Co. Ltd vs Mrs. Sushila Harendra Bahadur ... on 24 June, 2016
Bench: R.M. Savant
(901)-FA-1283-14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1283 OF 2014
ALONGWITH
CIVIL APPLICATION NO.3748 OF 2014
The New India Assurance Co. Ltd. ]
8, New India Centre, Cooperage, ]
Mumbai-400 021. ]
Through Mumbai Regional Office-I, ]
New India Bhavan, 2nd Floor, 34/38,
ig ].. Appellant
Bank Street, Fort, Mumbai-400 023 ].. Applicant
Versus
1. Smt. Sushila Harendra Bahadur Singh ]
Aged 40 years presently, widow of deceased, ]
2. Mast. Vipin Harendra Bahadur Singh ]
Aged 17 years presently, son of deceased, ]
3. Mast. Vivek Harendra Bahadur Singh ]
Aged 16 years presently, son of deceased, ]
4. Mr. Lal Bahadur Singh ]
Aged 70 years presently, father of deceased, ]
5. Mrs. Manbhawati Lal Bahadur Singh ]
Aged 68 years presently, mother of deceased, ]
Respondent Nos.2 and 3 being minors ]
through their legal and natural guardian ]
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mother/Respondent No.1, ]
All residing at Sukar Makan Chawl, ]
Tanaji Nagar, Dhobighat, Kurar Village, ]
Malad (E), Mumbai-400 097 ]
6. Mr. Himonshu M. Shah ]
24, Kuber Kunj, Karan Lane, ]
Ghatkopar (W), Mumbai-400 067. ]
(Owner of M/Truck No.MH-04-H-1137) ].. Respondents
Mr. D. S. Joshi for the Appellant/Applicant.
Mr. S. N. Sheth for the Respondent Nos.1 to 3.
CORAM : R.M. SAVANT, J.
DATE : 24th JUNE 2016
ORAL JUDGMENT
1. Admit. With the consent of the Learned Counsel for the
parties heard forthwith.
2. The above First Appeal challenges the judgment and order
dated 19.09.2013 passed by the Learned Member of the Motor Accident
Claims Tribunal, Mumbai ("MACT" for short), by which order, the
application in question being Application No.3534 of 2005 came to be
allowed and the claimants were held entitled to compensation of
Rs.8,01,000/- which was directed to be paid jointly and severally by the
owner of the vehicle and the Insurance Company i.e. Appellant herein.
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3. The facts involved in the above First Appeal can in brief be
stated thus :-
The Respondent Nos.1 to 5 herein are the original claimants
and are the widow of the deceased one Harendra Singh Lal Bahadur
Singh, children of the deceased and the parents of the deceased. The said
Harendra was driving a motorcycle bearing No. MH-04-T-7744 on
19.03.2000 from Mumbai towards Panvel. A motor truck bearing No. MH-
04-H-1137 came from the Poynad side of the Panvel-Mumbra road and
proceeding towards Virar in fast speed and in a rash and negligent manner
knocked down the said Harendra. As a result the said Harendra sustained
serious injuries and was removed to the MGM, Kamane hospital but he
succumbed to the injuries in the hospital. The accident was reported to the
Taloja Police Station by PSI Yashwant Chawan and upon his report offence
was registered at Taloja Police Station being C.R. No.32 of 2000 against
the driver of the truck. The said offence was registered under Section 304-
A, 279, 338 and 427 of the IPC. During the course of the investigation,
the investigating officer drew spot panchanama, inquest panchanama and
recorded statement of the witnesses. The doctor who conducted the
autopsy of the deceased gave the reason of the death of the deceased as
'Cardio respiratory failure due to head injury neurological shock due to
vehicle accident'. The Applicants thereafter filed instant Application
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No.3534 of 2005. After narrating the aforesaid incidents in the said
application, it was the case of the Applicants that the deceased Harendra
was 35 years of age and was doing business of crane hiring and earning
Rs.5000/- per month. It was further the case of the Applicants that due to
the accidental death of the deceased, they have sustained heavy financial
loss and mental agony. They therefore prayed that they be compensated in
the sum of Rs.7,00,000/- and that the insurer and the owner of the vehicle
be held jointly and severally liable for the same.
4. In the proceedings before the Trial Court the owner of the
vehicle who was the opposite party did not appear and therefore the claim
was proceeded ex-parte against him.
5. On behalf of the Insurance Company a written statement
came to be filed wherein the case of the Applicants was denied that the
accident took place on account of the rash and negligent driving of the
driver of the truck in question and it was sought to be contended that the
deceased was driving the motorcycle No. MH-04-T-7744 in a rash and
negligent manner. On the basis of the pleadings on record, the Trial Court
framed two issues which were inter-alia to the following effect :-
"1. Whether the applicants prove that deceased had
sustained severe injuries on 19.03.2000 at about 5.30 hrs at
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Village Dharna, on Panvel-Mumbra Road, Opposite Hotel
Goodluck on account of rash and negligent driving by
driver of offending vehicle bearing No. MH-04-H-1137
death of deceased was caused ?
2. Whether applicants are entitled to claim compensation as
prayed for ? If yes, from whom and what order ?"
6. The claimants led their evidence in support of their assertions.
The Applicant No.1 examined herself and produced certified copies of the
FIR at Exh.21, spot panchanama at Exh.22, inquest panchanama at
Exh.23, copy of insurance policy at Exh.24, cause of death certificate at
Exh.25, original death certificate at Exh.26, Ration Card at Exh.27,
certified copies of Income Tax Returns at Exh.28, character certificate at
Exh.29, true copies of Adhar Cards of Applicant Nos.1 to 3 at Exh.30.
7. The MACT on the basis of the material on record came to a
conclusion that the accident had occurred on account of the rash and
negligent driving of the driver of the truck and thereafter held that the
Applicants would be entitled to compensation of Rs.8,01,000/-. In so far
as whether the accident had occurred on account of the rash and negligent
driving of the driver of the truck is concerned, the MACT relied upon the
judgment of the Apex Court reported in II(2009) ACC page 444 (SC) in
the matter of Vimala Devi and others Vs. H.P.S.R.T.C. And others,
wherein the Apex Court has held that strict proof of accident caused by
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particular bus in particular manner may not be possible to be done by
claimant but the claimants are merely to establish their case on touchstone
of preponderance of probabilities.
8. In the instant case, the MACT held that the circumstantial
evidence which was brought on record by way of FIR, spot panchanama
and other police papers coupled with the fact that the said fact was not
denied or disputed by the owner of the vehicle as he has failed to appear
in the proceedings and filed his say, the MACT therefore held that the said
issue was proved against driver of the vehicle. In so far as to whose
liability would be to pay the compensation is concerned, the MACT held
that since the truck was admittedly insured with the Insurance Company,
the owner of the offending truck as well as the Insurance Company would
be jointly and severally liable to pay compensation. The MACT thereafter
proceeded to determine just compensation that would be payable to the
claimants. The MACT observed that on the basis of the material on record
it could be taken that the deceased was 35 years of age at the time of his
death. In so far as the earning capacity of the deceased was concerned, the
MACT adverted to the Income Tax Returns for the assessment year 1997-
98 and 1998-99 of the deceased. In so far as the assessment year 1997-98
is concerned, the taxable income was Rs.38,950/- and for the subsequent
assessment year 1998-99, the taxable income shown was Rs.42,560/-. On
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the said basis, the MACT observed that the deceased was earning
approximately Rs.3000/- per month by carrying out the business of Crane
Hiring under the name and style of Kaushal Crane Hiring which was his
proprietorship concern. In so far as the future prospects are concerned, the
MACT relied upon the judgment of the Apex Court reported in II(2012)
ACC 377 (SC) in the matter of Santosh Devi Vs. National Ins. Co. Ltd.
and others, wherein the Apex Court has held that in respect of self
employment, it would be reasonable to say that a person would get a 30%
increase in his total income over a period of time. The MACT on the said
basis observed Rs.900/- would have to be added to Rs.3000/- which
makes the figure of Rs.3900/- per month and rounded it up to Rs.4000/-
and by deducting 1/4th amount for the personal expenses held that the
monthly contribution to the family would come to Rs.3000/- and therefore
the yearly dependency would be in the sum of Rs.36,000/- then applying
the multiplier of 16, the MACT came to a conclusion that the total
dependency would be in the sum of Rs.5,76,000/- for which the
Applicants would be entitled to. The MACT also granted Rs.1,00,000/- for
the loss of consortium and Rs.1,00,000/- for loss of love and affection and
Rs.25,000/- for funeral expenses. The MACT therefore as indicated above
granted compensation of Rs.8,01,000/- to the claimants. As indicated
above, it is the said Award dated 19.09.2013 passed by the Learned
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Member of the MACT, Mumbai which is taken exception to by way of the
above Petition.
9. Heard the Learned Counsel for the parties.
10. The Learned Counsel appearing for the Appellant/Insurance
Company Mr. D. S. Joshi would contend that though the accident took
place on 19.03.2000, the instant claim Petition was filed only in the year
2005 and therefore was barred by limitation. It was next contended that
the MACT had erred in Awarding compensation that it had Awarded
without considering the fact that there was contributory negligence on the
part of the deceased. It was also contended that the MACT had erred in
computing the income as well as future prospects without there being any
evidence on record and that the same was also on the higher rate and that
the MACT had erred in granting Rs.1,00,000/- for loss of consortium and
also for loss of love and affection.
11. Per contra, the Learned Counsel appearing on behalf of the
Respondent Nos.1 to 3 herein Mr. S. N. Sheth would support the
impugned Award. The Learned Counsel would draw this Court's attention
to the fact that the owner of the vehicle has not even participated in the
proceedings and Appellant Insurance Company has not led any evidence.
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It was the submission of Mr. S. N. Sheth that in so far as the issue of
limitation which is sought to be raised by the Learned Counsel appearing
for the Appellant, the said issue is no more res-integra being covered by
the judgment of the Apex Court reported in 1996 ACJ 1013 (SC) in the
matter of Dhannamal Vs. D. P. Vijayvargiya and others. The Learned
Counsel would next contend that in so far as future prospects are
concerned, it is well settled by the judgment in Santosh Devi's case (supra)
that even in cases of self employment 30% increase is reasonable. In so far
as the last submission of Mr. D. S. Joshi is concerned, the Learned Counsel
Mr. S. N. Sheth relied upon the judgment of the Apex Court reported in
2013 ACJ 1403 (SC) in the matter of Rajesh and others Vs. Rajbir Singh
and others, wherein the Apex Court has deemed it appropriate to grant
Rs.1,00,000/- for loss of consortium and also for loss of love and affection.
It was therefore the submission of the Learned Counsel Mr. S. N. Sheth
that the amount awarded is reasonable and therefore does not require any
interference from this Court in its Appellate Jurisdiction.
12. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. The first issue that is required to be
addressed is the issue of limitation which is sought to be raised by the
Learned Counsel for the Appellant Mr. D. S. Joshi. No doubt, in the instant
case, the accident took place on 19.03.2000 and the claim Petition was
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filed in the year 2005. In so far as the claim Petitions are concerned, the
limitation was prescribed by Section 166(3) of the said Act. In so far as
Section 166(3) is concerned, a limitation of one year was provided in the
said provision as it stood till the year 1994. In the year 1994, an
amendment took place to the said provision. By virtue of which the
limitation was removed. The issue of limitation in so far as the filing of
claim Petition is concerned was subject matter before the Apex Court in
Dhannamal's case (supra). The Apex Court having regard to the
amendment which came into force on 14.11.1994 held that from the said
date there is no limitation for filing claims before the Tribunal in respect of
any accident. The Apex Court observed that the period of limitation was
removed in view of the fact that the Parliament realised the grave injustice
and injury which was being caused to the heirs and legal representatives
of the victims who died in accidents by rejecting their claim petitions only
on the ground of limitation. Hence, in so far as the said issue is concerned,
the same has been concluded by the judgment of the Apex Court in
Dhannamal's case (supra) and therefore the contention urged by Mr. D. S.
Joshi is required to be rejected.
13. The next contention is of the contributory negligence of the
deceased. However, though the said case was sought to be set up by the
Insurance Company in the Tribunal neither the Insurance Company led
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any evidence nor the owner participated in the proceeding before the
MACT. Hence, in the absence of any evidence being led by the Insurance
Company, the MACT was right in relying upon the FIR, spot panchanama
and other police papers to come to a conclusion that accident had
occurred on account of the rash and negligent driving of the driver of the
truck. Considering the nature of the proceedings involved, the MACT was
also right in holding that the manner as to how the accident has occurred
can be concluded on the basis of preponderance of probabilities. Hence,
the finding of the MACT on account of the rash and negligent driving of
the driver of the truck cannot be taken exception to.
14. Now coming to the third contention urged on behalf of the
Appellant Insurance Company as regards computation of income and
future prospects. In the said context, it is required to be noted that there is
evidence on record to show that the deceased was doing business of Crane
Hiring. The Income Tax Returns for the assessment year 1997-98 and
1998-99 were placed on record. The said Income Tax Returns disclose the
taxable income of the deceased. The MACT on the said basis has come to a
conclusion that the monthly income of the deceased was in the region of
Rs.3000/- per month from the said business. In so far as future prospects
are concerned, though a contention was sought to be raised that in respect
of self employment, there cannot be any future prospects. The MACT
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having regard to the judgment in Santosh Devi's case (supra) held that
even in respect of self employment, it would be reasonable to hold that
there would be 30% increase in income. The MACT on the said basis held
that Rs.900/- would have to be added to the monthly income of Rs.3000/-
making the total of Rs.3900/- and rounded up the same to Rs.4000/-. The
MACT thereafter deducting 1/4th amount for personal expenses held that
the monthly dependency would be Rs.3000/- per month and Rs.36,000/-
per year and considering age of the deceased which was 35 years applied
the multiplied by 16 and held that the dependency would be the sum of
Rs.5,76,000/-.
15. In my view, having regard to the fact that there was evidence
by way of Income Tax Returns which was filed on behalf of the claimants
as well as considering the law laid down by the Apex Court in Santosh
Devi's case (supra), the amount arrived at by the MACT on account of
total dependency can be said to be just and reasonable. In so far as the last
contention of the Learned Counsel Mr. D. S. Joshi that Awarding
Rs.1,00,000/- each for loss of consortium and also loss of love and
affection, in my view, the said contention cannot be accepted in the light
of the judgment of the Apex Court in Rajesh's case (supra). In the said case
also the deceased were in the age group of 30 to 35 and the Apex Court
therefore deemed it appropriate to grant Rs.1,00,000/- on account of loss
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of consortium as also for the loss of love and affection . The award of the
said amounts therefore cannot be said to be exorbitant or excessive.
Hence, taking an overall view of the matter and considering the fact that
the deceased was 35 years old, the amount Awarded by the MACT
aggregating to Rs.8,01,000/- can be said to be just compensation. In that
view of the matter, no case for interference is made out. The First Appeal
is accordingly dismissed.
16.
In view of the dismissal of the First Appeal, the Civil
Application does not survive and to accordingly stand disposed of as such.
[R.M. SAVANT, J]
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