Bombay High Court

Shriram General Insurance ... vs Rahimabi Wd/O Ayyub Khan And ... on 17 April, 2017

Bench: N.W. Sambre

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 FIRST APPEAL NO.1252 OF 2016


 Shriram General Insurance Company Ltd., 
 though its Authorised Officer, 
 E-8, EPIP, RIICO Industrial Area, Sitapura,
 Jaipur (Rajasthan).                                    ....       APPELLANT


                     VERSUS


 1) Rahimabi wd/o Ayyub Khan,
     Aged about 32 years, 
     Occupation - Household, 

 2) Affan Ahmed s/o Ayyub Khan,
     Aged about 11 years, 
     Occupation - Education,

 3) Hassan Ahmed Khan s/o Ayyub Khan,
     Aged about 7 years, 
     Occupation - Education,

 4) Dayyan Ahmed Khan s/o Ayyub Khan,
     Aged about 4 years, Occupation - Nil, 
     (Respondent Nos. 2 to 4 being Minor, 
     through their natural guardian mother
     i.e. respondent No.1.)

 5) Shakila Khatoon wd/o Shabbir Khan,
     Aged about 59 years, 
     Occupation - Household, 
     
     All Respondent Nos.1 to 5 R/o Qasidpura,
     Patur, Tq. Patur, District Akola.




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 6) Mr. Imam Shah Mohammed,
     Aged Major, Occupation - Owner,
     R/o 1613, Eidgah Maidan, Zaidi Gate, 
     Ahmednagar, Tq. and Dist. Ahmednagar.                        ....       RESPONDENTS


 ______________________________________________________________

               Shri H.N. Verma, Counsel for the appellant, 
         Shri S.A. Mohta, Counsel for the respondent Nos.1 to 5.
  ______________________________________________________________


                               CORAM : N.W. SAMBRE, J.

DATED : 17-04-2017.

ORAL JUDGMENT :

This appeal under Section 173 of the Motor Vehicles Act

by Insurance company questioning the award delivered by the Motor

Accident Claims Tribunal, Akola in M.A.C.P. No.65/2012 awarding

compensation of Rs.44,21,000/-. Deceased Ayyub Khan was serving as

a Shikshan Sewak with Zilla Parishad from 6 th May, 2008 to 6th May,

2011 at an honorarium of Rs.3,000/- per month. Said Ayyub Khan, on

26-11-2011, while proceeding from Akola to Patur on a motorcycle

was hit by a truck, which came from the wrong side resulting into his

death.

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2. The claim petition is filed by his dependents being

M.A.C.P.No.65/2012 seeking compensation of Rs.48,00,000/-.

Amongst other the basis for claim alleged is salary of Rs.19,000/- per

month as per 6th Pay Commission and the income from the irrigated

land, etc. The claimant No.1 is his widow, claimant Nos.2 to 4 are his

minor children and claimant No.5 is his mother.

3. Exhibit No.10 is the written statement filed by the owner

of the offending vehicle denying all the contentions viz., age of

deceased, his occupation, income and negligence of the driver of the

offending vehicle. The appellant/original respondent No.2/Insurance

Company filed written statement at Exhibit No.12 and amongst other

raised issue of non-joinder of necessary party i.e. Insurance Company

of motorcycle and alleged that the deceased himself was negligent. A

case of composite negligence of driver of both the vehicles was also

pleaded alleging that there was 70% negligence on the part of the

motorcycle driver.

4. The Tribunal framed issues which reads thus :

1) Do the claimants prove that on 26-11-2011, Ayyubkhan Shabbirkhan died in a vehicular accident arising out of use of vehicle Truck bearing registration No.MH-04-CU-3904 ?

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        2)       Whether the claimants prove that the accident occurred due

to rash and negligent act of driver of offending vehicle ?

3) Are claimants entitled for compensation ? If yes, what amount?

4) What award ?

5. Feeling aggrieved thereby the present appeal.

6. Amongst other the Insurance Company has urged that the

M.A.C.T., Akola while delivering the judgment has committed error of

law in appreciating the evidence, particularly in the backdrop of the

claim made. According to him, what was taken into account is the

salary of a teacher and not honorarium of the Shikshan Seweak. He

would then urge that the exorbitant award of compensation is not

sustainable and as such matter be remanded back. He would also urge

that the Tribunal has not examined the issue of composite negligence.

Per contra, the learned Counsel for the respondents/claimants would

urge that the Tribunal has dealt with the claim in its true perspective

after appreciating the pleadings and material brought on record and

sought dismissal.

7. The learned Counsel for the appellant so as to get rid of

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liability and shift the same on the vehicle owner would place reliance

upon the judgment of the Apex Court in the matter of Gopal Krishnaji

Ketkar vs. Mohamed Haji Latif and others reported in AIR 1968 SC

1413, so as to submit that since the vehicle owner was in possession of

the driving licence of the driver, it was his bounden duty to produce

the same. He has also invited attention of this Court to the efforts

made by the appellant by issuing notice to the vehicle owner for

production of the driving licence of the driver. Based on the same,

according to the appellant there should be proportionate liability of the

Insurance Company or the owner or there should be a blanket order of

pay and recovery. Per contra, learned Counsel for the claimants by

inviting attention of this Court upon the judgment of the Apex Court in

the matter of Narcinva V. Kamat and another vs. Alfredo Antonio

Doe Martins and others reported in (1985) 2 SCC 574, to urge that

non production of the driving licence would not amount to breach of

the contract of Insurance Company. According to him, mere failure to

produce driving licence in the Court will not absolve the Insurance

Company.

8. In view of the submissions made, following points fall for

consideration :

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          i)       Whether   the   Motor   Accident   Claims   Tribunal   has

committed an error in appreciating the monthly/annual income of the deceased Ayyub Khan ?

ii) Whether the case of composite negligence is proved ?

iii) Whether non production of Driving Licence by owners of offending vehicle amounts to breach of policy condition ? In my opinion, both the points are required to be answered in negative.

9. So as to establish claim for compensation, widow of

deceased Ayyub Khan Rehimabee is examined at Exhibit No.16 and

Form AA at Exhibit No.19, First Information Report at Exhibit No.20,

Spot Panchanama at Exhibit No.21, Inquest Panchanama at Exhibit

No.22, Post-Mortem Report at Exhibit No.23, Insurance Policy of the

offending truck at Exhibit No.24, Death Certificate at Exhibit No.25 are

produced on record. The claimant then examined P.W.2-Madhukar,

Head Master of Zilla Parishad School, Jalgaon Jamod at Exhibit No.27

so as to prove appointment of deceased Ayyub Khan, which is at

Exhibit No.28, extract of Service Book at Exhibit No.29 and Salary

Certificate at Exhibit No.30. P.W.3-Muktarkhan, who is examined at

Exhibit No.33 by the claimant was motorcycle rider with the deceased.

The other documentary evidence reveals the certificate of education

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qualifications is relied upon.

10. The appellant i.e. original respondent No.2 before the

Tribunal has not adduced any evidence.

11. Upon analysis of the evidence as is brought before the

learned Tribunal, the Tribunal proceeded to infer that the offending

truck was driven in rash and negligent manner, hit the motorcycle of

Ayyub Khan from opposite direction and as such it has ordered of

payment of compensation. For the said purpose even the final charge-

sheet at Exhibit No.45 and registration certificate of the offending

truck at Exhibit No.46 were taken into consideration.

12. At the outset, it is required to be noted that the Insurance

Company and also the vehicle owner has neither examined any witness

nor brought on record any evidence. It is then to be noted that the

document at Exhibit No.45 i.e. copy of final charge-sheet speaks of

prosecution of the driver of the truck for the accident/offence in

question. The ownership of the vehicle and the insurance thereof with

the present appellant, which is not an issue in dispute.

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13. So far as the submission of the learned Counsel for the

appellant as regards composite negligence is concerned, First

Information Report at Exhibit No.20, Spot Panchanama at Exhibit

No.21 and the Charge-sheet at Exhibit No.45 is required to be

appreciated though both the witnesses are not eyewitnesses. In this

background, their testimony and the documentary evidence referred

supra are required to be appreciated. The spot panchanama speaks of

collusion and damage was noticed to the headlight of the truck on the

driver side i.e. right side of the truck. The sketch of the spot as is

noticed in the spot panchanama at Exhibit No.21 speaks of offending

truck proceeding on the wrong side of the road whereas deceased

Ayyub Khan was traveling on the motorcycle on the left side of the

road i.e. his side and it is the offending truck which came on its

extreem right side and gave dash, as could be inferred from the said

document. The interference that could be drawn from these

documents speaks of the negligence on the part of the truck driver only

and no case of composite negligence could be inferred from the

evidence available on the record.

14. The evidence of P.W.1-Rehimabee at Exhibit No.16 and

P.W.2-Madhukar, Head Master of the Zilla Parishad School, Jalgaon

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Jamod where deceased Ayyub Khan was working is required to be

appreciated for the said purpose. The appointment letter at Exhibit

No.28, the extract of Service Book at Exhibit No.29 and the Certificate

for the salary to be drawn by deceased Ayyub Khan as Rs.19,235/- is

proved by witness P.W.2-Madhukar, Head Master of the school. The

salary of Rs.19,235/- is found to be a basis for calculating and

awarding the compensation. The scheme of Shikshan Sewak speaks of

appointment of a person for three years on an honorarium of

Rs.3,000/- per month and thereafter there is a deemed confirmation of

such Shikshan Sewak as an Assistant Teacher. Such Assistant Teacher

from the date of completion of three years of period of Shikshan Sewak

is entitled for the full salary of Assistant Teacher as per the 6 th Pay

Commission. Relevant dates if are appreciated, deceased Ayyub Khan

was appointed as Shikshan Sewak on 6th May, 2008 and he has

completed his period of three years as Shikshan Sewak on 6 th May,

2011. Accident in question took place on 26-11-2011 i.e. after

completion of three years of his term as a Shikshan Sewak, as such he

has already acquired the status of Assistant Teacher. Though Shri H.N.

Verma, learned Counsel has tried to impress upon the Court that even

on the date of accident deceased Ayyub Khan was drawing salary of

Rs.3,000/- per month, however, said contention is liable to be rejected

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in view of the fact that while processing of Salary bill of a Shikshan

Sewak as an Assistant Teacher there are certain procedural

compliances are required which take substantial time. It is then to be

noted that so as to counter the evidence of P.W.1-Rahimabee and

P.W.2-Madhukar neither the Insurance Company nor the owner of

vehicle has examined any witness nor has extracted any material in the

cross-examination so as to demolish the case that deceased was not

working on the post of Assistant Teacher and was not entitled for

salary of Rs.19,235/- per month. His qualification as reflected in

Exhibit Nos.51 52, 53 speaks voluminous about his lawful entitlement

for being getting selected to such a post of Assistant Teacher. He was in

law entitled for salary as Teacher on the date of accident in the above

factual background.

15. Appropriate reliance can be placed on the Full Bench

Judgment of this Court in the matter of Ram Avadh Mahel Pal vs.

Shivdutta Educational Trust & ors. reported in 2007(6) Bom.C.R.

23. The Full Bench of this Court had an occasion to consider the issue

as regards status of Shikshan Sewak, after a period of completion of

period of probation or completion of period of three years. The

question that was dealt with by the Full Bench in paragraph No.6 of

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the judgment is as under :

"Q. Whether the Shikshan Sevak on completion of three years or 30 months service appointed on regular basis as an Assistant Teacher in a school in terms of Clause 8 of the Government resolution dated 13th October, 2000 is required to be appointed as a confirmed teacher or a teacher on probation ?"

"6. The reference before the Full Bench will now stand covered by the amendments made by Maharashtra Act XIV of 2007. As a result of the amendment, it has been provided that every person appointed as Shikshan Sevak shall be on probation for a period of three years. Moreover, subject to the provisions of sub-section (3) and (4) of section 5 a Shikshan Sevak shall on completion of the probation period of three years be deemed to have been appointed and confirmed as a teacher. Incidently, it may be necessary to note that gazette notification dated 15th February, 2007 which is referred to in the definition of the expression Shikshan Sevak in Clause (24-A) of sub-section (2) as amended incorporates the Government Resolution dated 13 th October, 2000."

16. The other documentary evidence and the evidence of

P.W.2-Madhukar, Head Master as such if appreciated, takes this Court

only to the conclusion that on the date of accident, deceased Ayyub

Khan had already completed three years of his posting as a Shikshan

Sewak and has termed as an Assistant Teacher and was entitled for

salary of Rs.19,235/-.

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17. Though Shri Verma, learned Advocate has relied upon the

judgment of the Apex Court in the matter of Smt. Sarla Verma and

others vs. Delhi Transport Corporation and another reported in AIR

2009 SC 3104 on the issue of consideration of the last income by

relying upon the observations made in the said judgment in paragraph

No.24, which reads thus :

"24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill-health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-99 itself and if the appeal had been decided by the High Court in the year 1989-90, they obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could only reply upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised

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higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation."

However, it is required to be noted that there is enough

material available on record in the form of evidence that immediately

after the completion of period of three years of Shikshan Sewak

posting, deceased Ayyub Khan was entitled to full salary. The process

of drawing full/complete salary has taken sometime and as such same

cannot form to be a basis so as to accept the contention of the

appellant that deceased was drawing salary of Rs.3,000/- on the date

of death. The pay as was entitled to him before the date is taken into

account by the Tribunal for the purpose of calculating the

compensation.

18. The issue raised about breach of policy conditions

particularly on the issue of discharge of burden by the vehicle owner in

response to the application to produce driving licence if analised, it

was never the case of the appellant/Insurance Company that the owner

was not in possession of the driving licence of the driver. Apart from

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above such application to produce the driving licence by the vehicle

owner was never served on the vehicle owner or the driver. As such

the futile attempt is made by the appellant relying upon a non-existent

ground so as to demonstrate the breach of policy.

19. Once the appellant/Company has not discharged its

burden that they have made enough efforts to demonstrate that the