Bombay High Court
Icici Lombard Motor Insurance Co. ... vs Shabana Navindulla Khan And Ors on 15 March, 2016
Bench: V.K. Jadhav
1 FA 836.2012.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 836 OF 2012
...
ICICI Lombard Motor Insurance Co.,
Office @ 414, Veer Savarkar Marg,
Nera Siddhi Vinayak Temple Prabhavati
Mumbai, Branch Office Nanded
and Divisional Office, Aurangabad.
..Appellant/
(Orig Resp No.2.)
VERSUS
1.
Shabana Begum w/o Navidulla Khan
age 35 years, Occ. Household.
2. Uzma Khan d/o Navidulla Khan,
age 18 years, Occ. Education.
3. Shahjadulla Khan s/o Navidulla Khan,
age 13 years, Occ. Minor, Education.
4. Sanaullaha Khan s/o Navidulla Khan,
age 11 years, Occ. Education
Petitioner Nos. 3 and 4 are minors and
U/g of their real mother i.e. petitioner
No.1, All R/o Habibiya Colony, Nanded.
5. Ziyaul Raheman Khan s/o Mohd. Khan,
age 52 years, Occ. Business,
R/o Hingoli Gate, Ashraf Nagar,
Nanded, Tq. & Dist. Nanded. ..Respondents..
...
Advocate for Appellants : Mr V N Upadhye
Advocate for Respondents 1-4 : Mr G R Syed
Respondent No.5 - served absent.
...
CORAM : V.K. JADHAV, J.
Dated: March 15, 2016
...
2 FA 836.2012.odt
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and award
passed by learned Member, MACT, Nanded on 19.1.2012
in MACP No.285/2008, the original respondent no.2-
Insurer has preferred this appeal.
2. Brief facts giving rise to the present appeal are as
follows :-
On 19.2.2008 at about 07.30 p.m. deceased
Navidulla Khan was proceeding on bicycle from
Dhanegaon to Nanded. On the way, a truck bearing
registration No.MH-26/H-6324 came from his back side
in high speed and gave dash to his bicycle, in
consequence of which, Navidulla Khan died on the spot.
On the same day, Crime No.56/2008 came to be
registered at Police Station Cidco (Rural). The
respondents/original claimants 1 to 4 filed MACP
No.285 of 2008 for grant of compensation. Learned
Member of the Tribunal, Nanded, by impugned order
dated 19.1.2012 partly allowed the said petition and
thereby directed the present appellant and respondent
no.5-owner of the vehicle involved in the accident to pay
3 FA 836.2012.odt
compensation amount of Rs.7,45,000/- to the claimants
alongwith proportionate interest @ 9% p.a. inclusive of
"No Fault Liability" amount. Hence, this First Appeal.
3. Learned counsel for the appellant submits that,
the alleged accident had taken place on 19.2.2008 and
on the same day, brother of the deceased had lodged
complaint in the concerned police station against
unknown vehicle. Learned counsel submits that, on
28.2.2008, the complainant/brother of deceased has
further informed to the police that, he got information
from one other person about the involvement of truck
bearing registration No.MH-26/H-6324 in the accident.
On its basis charge sheet came to be submitted before
the Court. Learned counsel further submits that, the
respondent/original claimant no.1 has only examined
herself on oath before the Tribunal, however, she was
not an eye witness to the incident. So far as the accident
in question is concerned, claimants have not examined
any witness to the accident. Learned counsel further
submits that even the police papers such as FIR, Spot
Panchnama, Inquest Panchnama, Postmortem report,
4 FA 836.2012.odt
Charge Sheet were not exhibited before the Tribunal.
Learned counsel submits that said documents cannot
be read in evidence. Learned counsel further submits
that the respondents/claimants have examined one
witness to prove the income of the deceased. According
to the claimants, deceased Navidulla Khan was working
as Maintenance In-charge in the office of a Govt.
Transport contractor i.e. the witness Abdul Shahed s/o
Abdul Hamid on monthly salary of Rs.5,500/- p.m.
Learned counsel submits that, said certificate is false
and there is absolutely no evidence to substantiate the
income of deceased Navidulla as claimed by the
respondents-claimants. Learned counsel submits that
the Tribunal has committed a grave mistake while
assessing the compensation by relying upon the so
called income proof.
4. Learned counsel for respondents-claimants
submits that the owner of the vehicle involved in the
accident has not contested the claim petition in any
manner. Learned counsel submits that after due
investigation, the concerned police station has
5 FA 836.2012.odt
submitted charge sheet against the driver of the said
truck. Learned counsel submits that certified copies of
all the police papers came to be submitted before the
Tribunal. Learned counsel further submits that, even
the Tribunal has referred the said documents in the
judgment. Learned counsel submits that even the
appellant-insurer never raised objection before the
Tribunal as to the police papers produced before the
Tribunal. Even during the course of arguments it was
not submitted before the tribunal that the said police
papers cannot be read in evidence as the same were not
exhibited. Learned counsel further submits that the
claimants have examined the witness for proving income
of the deceased. Said witness has stated on oath before
the tribunal that deceased Navidulla was under his
employment as Maintenance In-charge on monthly
salary of Rs.5,500/-. There is no reason to disbelieve
his evidence. Learned counsel submits that the Tribunal
has rightly considered the income proof and accordingly
awarded just and reasonable compensation. Learned
counsel submits that there is no merit in the appeal and
the appeal is, thus, liable to be dismissed with costs.
6 FA 836.2012.odt
5. Following points arises for my determination and I
have recorded my findings thereon for the reasons given
below :-
POINTS FINDINGS
1.Whether the appellant prove
involvement of the vehicle bearing
Registration No.MH-26/H-6324
in the accident dated 19.2.2008 ? Affirmative.
2.Whether the respondents prove that,
the driver of the said motor vehicle
bearing Registration No.MH-26/H-6324
was driving it in rash and negligent
manner and caused the accident ? Affirmative.
3.Whether the respondents are entitled
for compensation ? If Yes, to what Affirmative
extent and from whom ? From appellant &
Resp.No.5 (orig
Resp Nos. 1 & 2)
4.What order ? As per final order.
R E A S O N S
6. So far as the accident in question is concerned, it
is not disputed that deceased Navidulla Khan met with
an accidental death. On the day of incident itself, the
matter was reported to the police and on the basis of
F.I.R submitted to the police, Crime was registered.
Furthermore, deceased Navidulla died on the spot on
account of the said accident and, accordingly, on the
7 FA 836.2012.odt
same day postmortem was conducted on his dead body.
Even on the day of accident itself or subsequent to it,
spot panchnama and inquest panchnama also came to
be drawn by the Police. So far as involvement of the
vehicle truck bearing registration No.MH-26/H-6324 in
the accident is concerned, though Crime was registered
against unknown vehicle, during the course of
investigation, it was transpired that, said vehicle was
involved in the accident and, accordingly, charge sheet
came to be submitted against the driver of the said
truck. Even though, respondent-owner of the truck
duly served, he remained absent before the Tribunal.
Thus, respondent-owner has not disputed the
involvement of his vehicle in the accident. The
appellant-insurer has also not examined any witness
including the respondent-owner or his driver before the
Tribunal to substantiate its contention that the accident
had not taken place on that day and said vehicle truck
was not involved in the accident. Furthermore, the
Tribunal has referred almost all the police papers in the
impugned Judgment. Learned counsel for respondents-
claimants has rightly pointed out that the appellant-
8 FA 836.2012.odt
insurer had never raised any objection so far as the
police papers including the charge-sheet before the
Tribunal. Even the Tribunal has observed in the
impugned judgment that, as per the contents of the spot
panchnama, blood was lying on the spot and bicycle
found lying in damaged condition on the spot itself.
Even the brake marks of the vehicle were also found on
the spot. As per the postmortem report, probable cause
of death is due to hemorrhagic shock due to head
injuries. The learned Member of the Tribunal has
observed that, not a single question is put to the
claimant no.1 denying the involvement of the vehicle
truck in the accident. Considering the brake marks on
the road and bicycle found lying on the road in the
damaged condition, it can be safely inferred that the
dash was given from backside. The same is sufficient to
draw a conclusion that the driver of the vehicle truck
involved in the accident had driven it in rash and
negligent manner. Accordingly, I answer the point nos.
1 and 2 in the affirmative.
7. So far as the point of breach of policy condition on
9 FA 836.2012.odt
the part of respondent no.1 is concerned, there is no
evidence about the breach of policy condition and the
learned counsel for the appellant-insurer has also
accepted the same.
8. So far as the income proof in this case is
concerned, it appears that the claimants have examined
one Abdul Shahed Abdul Hamid at Exh.27. According
to him, he is working as Government Transport. He has
further deposed that deceased Navidulla Khan was
working as maintenance incharge in his office on
monthly salary of Rs.5,500/-. He was subjected to
cross examination by the counsel for respondent no.2
insurer. Said witness has admitted in his cross
examination that, he do not have government
registration number as the Government Transport
Contractor. He maintains the register of employees. He
did not sent it to the Labour office. Said certificate is
also on letter pad. This witness has not come before the
Tribunal alongwith attendance and pay register. If the
deceased Navidulla Khan is regular employee then, his
name should have been forwarded to the Labour Office
10 FA 836.2012.odt
by the employer. Even, it is also not mentioned in the
certificate since when and up to what period deceased
was working with the said witness as maintenance
supervisor. It appears that, the learned Member of the
Tribunal has placed reliance on such income proof for
assessing the compensation.
9. So far as the age of the deceased and application
of the relevant multiplier is concerned, the same is not
disputed. I find that the learned Member of the Tribunal
has committed mistake while considering the monthly
salary of the deceased as Rs.5,000/-. In the absence of
any reliable income proof the notional income of the
deceased is required to be considered as Rs.3,000/-(Rs.
Three Thousand) per month and nothing more than
that. So far as the personal deduction is concerned,
considering the dependency, the learned Member of the
Tribunal has rightly accepted 1/4th deduction towards
personal expenses of the deceased. Thus, after
deducting 1/4th amount as personal expenses of the
deceased, yearly income of the deceased comes to
Rs.3,000 X 12 = Rs. 36,000 divided by 1/4 = Rs.9,000/-
11 FA 836.2012.odt
thus, annual income of the deceased would comes to
Rs.36,000 - 9,000 = Rs.27,000/-. If Rs. 27,000/- is
multiplied by the relevant multiplier '16', it comes to
Rs.27,000 x 16 = 4,32,000/-. It also appears from the
impugned judgment and award that the learned
Member of the Tribunal has awarded very meager
amount for funeral expenses, loss of consortium and
loss of love and affection. It would be appropriate if the
funeral expenses are awarded Rs.15,000/-. Thus, break
up of compensation, can be as under.
1. Loss of Dependency Rs. 4,32,000/-
2. Funeral expenses Rs. 15,000/-
3. Loss of Consortium Rs. 20,000/-
4. Love of love and Affection. Rs. 20,000/-
=========================================
TOTAL Rs. 4,87,000/-
=========================================
(Rs. Four lacs eighty seven thousand only)
10. Thus, the respondents/claimants are entitled for
the total compensation of Rs. Four lacs eighty seven
thousand only and, the respondents no.1 and 2 jointly
and severally are liable to pay the compensation amount
of Rs.4,87,000/- alongwith proportionate interest @ 9%
12 FA 836.2012.odt
p.a. from the date of filing of the application till the
realization of the entire amount. This amount is
inclusive of "No Fault Liability" amount.
11. So far as apportionment of compensation amount
interse made by the learned Member of the Tribunal is
concerned, same stands confirmed. I accordingly,
answer the points accordingly and proceed to pass the
following order.
O R D E R
I. The appeal is hereby partly allowed.
II. The Judgment and Award dated 19.1.2012
passed by the learned Member, Motor Accident
Claims Tribunal, Nanded in M.A.C.P
No.285/2008 is hereby modified as under :-
a] The appellant and respondent No.5
(original respondent nos.1 and 2) jointly
and severally do pay compensation of
Rs.4,87,000/- (Rs. Four lac eighty seven
thousand only) inclusive of 'No Fault
Liability' amount to the applicants
alongwith interest @ 9% p.a. from the
date of filing of the application till its
realization.
13 FA 836.2012.odt
III. The apportionment interse as directed by the
Tribunal stands confirmed.
IV. In the circumstances there shall be no order as
to costs.
V. Award be drawn up accordingly.
VI. In response to the order passed by this Court,
the appellant-insurer has deposited the entire
amount under the Award. Office to calculate
the compensation alongwith interest as per the
modified order of this Court and pay the
amount to the respondents-claimants 1 to 4.
Rest of the amount, if any, be refunded to the
Appellant-Insurer.
VI. Record and Proceeding be sent back to the
concerned court.
( V.K. JADHAV )
JUDGE
...
aaa/-
