Oriental Insurance Company, ... vs Premkumar S/O Dwarkadas Mishra ...
2016 Latest Caselaw 619 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                                                   
                                                           
                               FIRST APPEAL NO.1059 OF 2012


                Oriental Insurance Company,




                                                          
                Through its Manager,
                T.P.Hub, Dharampeth, Nagpur                                  APPELLANT




                                            
                                    ...VERSUS...


     1]
                             
                Premkumar Dwarkadas Mishra,
                aged 60 years, Occ. Nil.
                            
     2]         Sau. Shantadevi Premkumar Mishra,
                aged 49 years, Occ. Nil.
      

                Both residents of Nehru Ward,
                Hinganghat, Tahsil Hinganghat,
   



                Distt. Wardha.

     3]         Bhupendra Singh Rupal Singh Tutheja,
                aged about 55 yeas, Occ. Business,





                R/o. Deori, Distt. Gonida.

     4]         Sarang Vijay Bakre,
                aged 30 years, Occ. Business,
                R/o. Mahindra Apartments,





                Near Padole Layout, Nagpur.                         RESPONDENTS

     -------------------------------------------------------------------------------------------
     Shri A.R.Kaplay, Advocate with Shri A.M.Quazi, Advocate,for appellant.
     Shri D.M.Surjuse, Advocate, for Respondent nos. 1 and 2
     None for other respondents.
     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 15 MARCH, 2016 .

                                                          2               fa1059.12.odt

     ORAL JUDGMENT




                                                                                       
              1]               The challenge in this appeal is to the award dated




                                                               

09.04.2012 passed by the Motor Accident Claims Tribunal in

Motor Accident Claim Petition No. 194 of 2007, for total

compensation of Rs.7,25,000/- inclusive of 'no fault liability'

along with interest at the rate of 8% per annum from the date of

filing of the petition i.e. 25.10.2007 till its realization. The

Insurance Company is before this Court in this appeal to

challenge the quantum of compensation awarded by the

Tribunal.

2] On 03.06.2007 at about 10 p.m. deceased Rupesh

along with his friend Sameer Bakre were proceeding towards

Hinganghat from Jam on motor cycle bearing registration No.

MH-31-AN-7161. Sameer was the rider whereas Rupesh was

the pillion rider. One TATA Indica car bearing registration

No.MH-35-M-0331 coming from the opposite direction dashed

the motor cycle as a result of which Sameer and Rupesh, both

died. The contention of the appellant is that the insurer of the

motor cycle was not joined as party in the claim petition.

3] The following are the points for determination by

this Court.

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                        (I)    Whether the claim petition was required to

be dismissed by the Tribunal on the ground

of non joinder of insurer of the motor cycle bearing Registration No. MH-31-AN-

7161 as party respondent in the claim

petition?

(II) Whether the award of compensation of

Rs.7,25,000/- passed by the Tribunal is

required to be modified and reduced?

4] The deceased Rupesh being a pillion rider, was a

third party so far as Indica Car bearing registration No. MH-35-

M-0331 is concerned, which was insured with the appellant

Insurance Company. It is a case of composite negligence and

hence, it was not necessary for the dependents of the

deceased Rupesh, to have joined the insurer of the motor cycle

as party respondent in the claim petition. The point No. 1 is

answered accordingly.

5] So far as second point is concerned, the Tribunal

has recorded the finding that on the guess work, the income of

the deceased can be determined at Rs.5,000/- per month. At

the time of death, the deceased was aged about 24 years and

4 fa1059.12.odt

was unmarried. Though Salary Certificate at Exh. 38 is

produced on record showing the salary of Rs.7,500/- per month

in April, 2006 and thereafter in March, 2007 just before the

death, the monthly income was shown to be Rs.8000/-, the

Tribunal has refused to accept this amount of salary contained

in the certificate at Exh. 38, but has determined the notional

income at Rs.5,000/-.

6]

In the claim petition, the averment is that the

deceased was working as Supervisor in the construction

company of one Shri Somani and was earning Rs.8,000/- per

month. The complainant who is the father of the deceased has

filed an affidavit in lieu of examination-in-chief stating that his

son was working as Supervisor in the Company of Shri Somani

on the salary of Rs.8,000/- per month. No documentary

evidence is produced on record to substantiate this version. On

the contrary, one Shri Ritesh Subhashchand Surana, a Railway

Contractor, was examined who stated that the deceased was

working with him as Supervisor for 3 to 4 years before his

demise and was getting salary of Rs.8,000/- per month. He has

produced in his evidence the salary certificate at Exh. 38

showing the salary paid to the deceased for the financial year

2006-07. It is shown in the said salary certificate that in the

5 fa1059.12.odt

month of April 2006 to September 2006, the deceased was paid

Rs.7,500/-, whereas from October 2006 to May 2007, he was

paid Rs.8000/- per month towards salary. In his cross

examination, this witness has stated that he has not brought the

balance sheet for the financial year 2006-07 and though he

used to prepare the salary voucher by obtaining signatures of

the concerned employees, he has not brought those vouchers.

7]

It is thus, apparent that there is no consistency in

the pleadings and proof. The pleading and the evidence of the

claimant shows that the deceased was working with one Shri

Somani, but the said employer has not been examined. It is not

the case of the claimant that the deceased was working with

Shri Surana, but Shri Surana has been examined. The Tribunal

has not believed the evidence of income of the deceased at

Rs.8,000/- per month on the basis of the salary certificate at

Exh. 38, but has decided the notional income of Rs. 5,000/-.

The notional income will be considered at Rs.3,000/-.

8] The deceased was aged about 24 years at the

time of death and his yearly income would be Rs.36.,000/-. The

deceased being bachelor, 50% deduction will have to be

allowed. Hence, the total yearly income of Rs.18,000/- is to be

6 fa1059.12.odt

multiplied by the multiplicant of 17. Thus, the total dependency

can be worked out to Rs.3,06,000/-. In addition to it, the funeral

expenses and loss of love and affection, an amount of

Rs.25,000/- and on account of loss of estate, an amount of

Rs.20,000/- will have to be made admissible. Thus, the total

compensation payable to the dependents would be

Rs.3,51,000/- along with interest at the rate of 8% per annum

from the date of filing of petition till its realization. Hence, the

award of the Tribunal is modified accordingly.

9] It is informed that the appellant Insurance

Company has deposited the amount with the Tribunal. The

claimants shall be entitled to withdraw the amount along with

proportionate interest accrued thereon till this date and the

balance amount, if any, is permitted to be withdrawn by the

appellant Insurance Company along with the interest accrued

thereon.

JUDGE

Rvjalit