Bombay High Court
Hausabai Baburao Karjule & Ors vs Vijay Janardhan Koli & Ors on 22 September, 2016
Bench: P.R. Bora
1 FA NO.825/2004
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.825 OF 2004
1) Housabai Baburao Karjule,
(Died) Through her L.Rs.
Anandrao Krishnaji Mutkule,
Age: Major, Occu.: Agril,
R/o. Mandve, Post, Belgaon,
Tq. Ashti, Dist. Beed.
2) Rakhmabai W/o. Anandrao Butkule
Age:42 years, died through her
legal heirs;
a)
Anandrao Krishnaji Mutkule,
Age: Major, Occu.: Agril,
R/o. Mandve, Post, Belgaon,
Tq. Ashti, Dist. Beed.
b) Shankar Anandrao Mutkule,
Age: Major, Occu.: Agril,
R/o. as above,
c) Sangeeta Balu Shrikhande,
Age: Major, Occu.: Household,
R/o. as above. = APPELLANTS
(Orig. Petitioner
Nos. 1 & 2)
VERSUS
1) Vijay Janardhan Koli,
Age: Major, Occu.: S.T. Service,
R/o. C/o. Maharashtra State Road
Transport Corporation, Beed,
Depot Beed,
2) Divisional Controller, M.S.R.T.
Corporation, Beed Depot, Beed.
3) The General Manager, M.S.R.T.
Corporation, Bombay,
4. Ghanashyam Tukaram Jasud,
Age: 30 years, Occu: Service,
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2 FA NO.825/2004
R/o. C/o. Ashti, Tq. Police
Station, Ashti, Dist. Beed,
5. Sahebrao Shamrao Mutukule,
Age: Major, Occu.: Agril,
R/o. Mandave, Tq. Ashti,
Dist. Beed,
6. The Branch Manager,
The Oriental Insurance Co. Ltd.,
Kishan Kranti Bldg. Ahmednagar,
7. Sau. Hirabai W/o. Ghansham Jasud,
Age:30 years, Occu.: Household,
R/o. Imamgaon, Tq. Ashti,
Dist. Beed.
ig = RESPONDENTS
(Resp.Nos.1 to 6 are
Ori.Resp.Nos.1 to 6
and Resp.No.7 Ori.
Pet.No.3)
-----
Mr. P.P. Dawalkar, Advocate h/for
Mr. C.S. Deshmukh, Advocate for Appellants;
Mr. R.C. Bora, Advocate h/ for
Mr. P.P. Bafna, Advocate for Respondent No.6.
-----
CORAM : P.R.BORA, J.
RESERVED ON : 23
rd
August,2016.
PRONOUNCED ON:22
nd
SEPTEMBER,2016.
JUDGMENT:
1) Heard. The present Appeal is filed
against the Judgment and award passed by the
Motor Accident Claims Tribunal, Ahmednagar (for
short the "Tribunal") on 4th March, 1996 in
M.A.C.P.No.119/1985.
3 FA NO.825/2004
2) The aforesaid claim petition was filed
by one Ansabai Kishanrao Pokale, claiming
compensation on account of death of her son
namely Maruti Pokale in a vehicular Accident
happened on 13th July, 1985 having involvement of
a motor-cycle bearing registration No. MTH-4620
owned by present Respondent No.5 and insured with
present Respondent No.6. Deceased Maruti Pokale
was proceeding towards Beed along with one
Ghansham Jasud (Respondent No.4) on the aforesaid
motor-cycle as a pillion rider. In Aathwad Ghat
the motor-cycle colluded with ST bus coming from
the opposite direction and in the accident so
happened, Maruti Pokhale suffered grievous
injuries and ultimately died because of the said
injuries.
3) In the claim petition filed by mother of
deceased Maruti Pokhale, it was her contention
that the alleged accident had happened because of
negligence on part of the driver of ST bus as
well as Respondent No.4, who was plying the
4 FA NO.825/2004
motor-cycle when the accident happened. Claiming
that she was wholly dependent upon the income of
deceased Maruti, she had claimed compensation of
Rs.50,000/- from the driver and owner of ST bus
as well as the driver, owner and the insurer of
the motor-cycle.
. During the pendency of the aforesaid
claim petition, Ansabai expired and her two
daughters, viz. Hausabai and Rakhamabai, being
the legal heirs of deceased Ansabai, prosecuted
the claim petition further.
4) The claim petition was resisted by the
respondents on various grounds. In support of
the contentions raised in the claim petition,
Rakhamabai, deposed on behalf of the claimants.
Opponent No.1, i.e. driver of the ST bus, had
also adduced his oral evidence in order to
substantiate that the alleged accident had
happened not because of his negligence, but
because of the negligence of Respondent No.4, who
was plying the motor-cycle at the relevant time.
5 FA NO.825/2004
5) The learned Tribunal, after having
assessed the oral as well as documentary evidence
brought on record, dismissed the claim petition
vide the impugned Judgment and Award.
6) Learned Counsel appearing for the
appellants assailed the judgment of the Tribunal
on various grounds. The learned Counsel
submitted that the Tribunal has erred in holding
that the daughters of deceased Ansabai, who
prosecuted the claim petition further, did not
prove that they were dependent upon the income of
deceased Maruti and hence were not entitled for
any compensation. The learned Counsel further
submitted that the dependency of the legal
representatives is not a sine qua non for the
purpose of entitlement to the compensation under
the provisions of the Motor Vehicles Act.
. The learned Counsel further submitted
that had the compensation been awarded by the
Tribunal before death of Ansabai, the said estate
would have obviously devolved upon her daughters
6 FA NO.825/2004
being her legal representatives. To buttress his
contention, the learned Counsel relied upon the
judgment of the Delhi High Court in the case of
Budh Singh Vs. Vijender Singh & Ors.- ACJ 2013
19; and the Division Bench Judgment of Andhra
Pradesh High Court in the case of Dr.GangaRaju
Sowmini Vs. Alvala Sidhakar Reddy & Anr. - 2016
(5) All MR 45.
7) The learned Counsel further submitted
that there was no reason for the Tribunal to
dismiss the claim petition even against the owner
of the motor-cycle (Respondent No.5) when the
claimants have successfully proved that the
alleged accident had happened because of the
negligence of the motor-cycle rider. The learned
Counsel, therefore, prayed for setting aside the
impugned Judgment and Award and consequently to
allow the claim petition at least against
Respondent No.5.
8) Though all the respondents are duly
7 FA NO.825/2004
served, when the matter was finally heard,
learned Counsel representing Respondent No.6 was
only present. Since the appellants did not press
any relief against Respondent No.6, learned
Counsel appearing for Respondent No.6, did not
make any submission and prayed for passing
appropriate orders.
9)
I have carefully considered the
submissions advanced by the learned Counsel
appearing for the appellants. I have also
perused the impugned judgment and the other
material on record. The Tribunal has recorded a
finding that the alleged accident had happened
because of the negligent driving of Respondent
No.4, who was plying the motor-cycle bearing
registration No.MTH-4620 when the alleged
accident happened. However, since the Tribunal
has further held that the petitioners failed in
proving that they were the Dependants of deceased
Maruti Pokale, has ultimately dismissed the claim
petition. The finding so recorded by the
8 FA NO.825/2004
Tribunal cannot be sustained in view of the ratio
laid down by Delhi High Court in the case of
Budhsingh (cited supra). In the aforesaid matter
before the Delhi High Court, the claim petition
was filed by mother of the deceased, who expired
after about nine months from the accidental death
of the deceased. Though, father and brothers of
the deceased were alive and were taken on record
as legal representatives of mother of the
deceased, who had filed the claim petition, the
Tribunal declined to grant any compensation to
them on account of loss of dependency, holding
that mother of the deceased only was entitled to
compensation during her life time for loss of
dependency and no compensation was liable to be
paid to father of the deceased or to brothers of
the deceased since they were not the dependants
on the income of the deceased.
. The Delhi High Court in the aforesaid
matter negated the finding so recorded by the
Tribunal with the following observations, -
9 FA NO.825/2004
"9. In view of the aforesaid
legal position, the inescapable
conclusion is that the learned
Tribunal has not assessed the amount
of compensation payable to the
appellants by following the correct
legal principles. The mother of the
deceased was alive at the time of the
death of the deceased and the amount
of compensation, most certainly, fell
due on the date of the accident. She
died nine months after the demise of
the deceased and her share of the
compensation, had it been awarded by
the Claims Tribunal before her death,
would have obviously devolved upon
her legal representatives viz., her
husband and her children. The learned
Tribunal did not at all consider this
aspect of the matter. Even otherwise,
as discussed above, the dependency of
the legal representatives is not a
sine qua non for the purpose of
entitlement of the claimants to
compensation, that is to say, even if
the claimants are found not to be
dependant upon the income of the
deceased, they are entitled to the
loss to the estate of the deceased as
10 FA NO.825/2004
a result of his death. Such loss to
the estate of the deceased would have
to be ascertained keeping in view the
income of the deceased and the amount
the deceased would have spent on
himself and the savings of the
deceased which would then have to be
quantified by the use of an
appropriate multiplier with reference
to the age of the claimants.
ig In the instant case, the
claim petition has been presented by
the mother and the father of the
deceased. The quantum of compensation
must, therefore, be ascertained on
the basis of the fact that the mother
of the deceased was alive on the date
of the accident, and the right to sue
for compensation accrued on said
date. Had the Tribunal decided the
claim petition instituted by her
during her lifetime, in the event of
her death, the entire amount would
have devolved upon her legal
representatives. Merely because she
died during the pendency of the claim
petition, by no stretch can be
construed to mean that her claim
11 FA NO.825/2004
abated.
10) The facts of the present case are quite
identical to the facts which were involved in the
aforesaid matter before the Delhi High Court. In
view of the aforesaid judgment of the Delhi High
Court, it has to be held that had compensation
been awarded by the Tribunal to Ansabai before
her death, the same would have obviously devolved
upon her legal representatives. It cannot be
disputed that the amount of compensation must
certainly fell due on the date of the accident
when Ansabai was alive. In the said matter, the
Delhi High Court had held that mother of the
deceased was entitled to compensation during her
life time for loss of dependency. Adopting the
said course, I am also inclined to hold that
deceased Ansabai was entitled for compensation
during her life time for the loss of dependency
and I quantify the said compensation on the
similar line as was assessed by the Delhi High
Court in the aforesaid matter to the extent of
the compensation awardable under no fault
12 FA NO.825/2004
liability.
11) Admittedly, the alleged accident had
happened in the year 1985. At the relevant time,
the compensation payable under no fault liability
was Rs.25,000/-. I, therefore, hold that the
deceased Ansabai was entitled to the compensation
of Rs.25,000/-. I further hold that the present
appellant Nos. 1 and 2 are entitled to receive
the said compensation, being the legal
representatives of deceased Ansabai,
12) Now, the next question arises as to from
whom the compensation is payable. It is not in
dispute that Respondent No.4 was plying the
motor-cycle at the relevant time, which was owned
by Respondent No.5. As noted earlier, the
Tribunal has recorded a finding that the accident
in question happened because of the negligent
driving of Respondent No.4. For the negligence
of Respondent No.4, Respondent No.5, being owner
of the motor-cycle is thus vicariously liable to
13 FA NO.825/2004
pay the amount of compensation to the claimants
along with Respondent No.4. It is further not in
dispute that the offending motor cycle was
insured with Respondent No.6. The Tribunal has,
however, declined to pass any order against the
insurance company by holding that the insurance
policy of the said motor-cycle was covering the
risk of third party only and not of the driver or
owner of the motor-cycle. During the course of
the arguments before this court the appellants
have not assailed the aforesaid finding recorded
by the Tribunal and have consequently not pressed
any relief against the insurance company. I,
therefore, do not see any error in the finding
recorded by the Tribunal whereby it has
exonerated the insurance company from its
liability. Thus, Respondent Nos. 4 and 5 only
can be held liable for payment of compensation as
aforesaid.
13) In the result, the following order, -
ORDER
14 FA NO.825/2004
i) The impugned Judgment and Award is
quashed and set aside;
ii) Appellant Nos.1 & 2 are held entitled to
receive compensation amounting to
Rs.25,000/- jointly and severally from
Respondent Nos. 4 and 5;
iii) Respondent Nos.4 and 5 shall jointly and
severally pay the aforesaid amount of
together with interest thereon @ 6% per
annum from the date of filing of the
present appeal before this Court till
its realization;
iv) The appeal is allowed in the aforesaid
terms. Pending Civil Application, if
any, stands disposed of.
sd/-
(P.R.BORA)
JUDGE
TITLE -KODGIRE
bdv/Jt.
fldr 15.9.16
