Bombay High Court
New India Assurance Company ... vs Smt. Samindrabai Wd/O Bhagwan ... on 10 August, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 637 of 2005
Appellant : The New India Assurance Company Limited,
Sharda Centre, 2nd floor, Behind Nal Shop,
Karve Road, Pune, through the Regional
Manager, New India Assurance Co. Ltd., having
its Office at Dr Ambedkar Bhawan, MECL
Office Building, Sitabuldi, Nagpur
versus
Respondents : 1) Smt Samindrabai wd/o Bhagwan Kharde,
aged about 37 years, Occ: Household
2) Santosh s/o Bhagwan Kharde, aged about
21 years, Occ: Education/Student
3) Kum Savitri d/o Bhagwan Kharde, aged
about 15 years, Occ: Education/Student,
4) Kum Tulsabai d/o Bhagwan Kharde, aged
about 13 years, Occ: Education/Student,
5) Kum Ujwala d/o Bhagwan Kharde, aged
about 11 years, Occ: Education/Student,
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6) Machhindra s/o Bhagwan Kharde, aged
about 7 years, Occ: Education/Student
Respondents no. 3 to 6 being minors, through
their natural guardian mother, respondent no. 1
Smt Samindrabai wd/o Bhagwan Kharde,
7) Smt Kalabai w/o Abhaji Kharde, aged about
72 years, Occ: Household
Respondents no. 1 to 7 all residents of Alad,
Tahsil Deolgaonraja, Dist. Buldana
8) Prithvi s/o Harlal Lot, ... Deleted
9) M/s Pandit Auto Limited, S. No. 49/2-B,
Tathewada, Taluka Minshi, Dist. Pune
10) Smt Kausalyabai wd/o Bhagwan Kharde,
aged about 47 years, Occ: Agriculturist,
resident of Delkheda (Khurda), Taluka Jatrabad,
District Jalna
Shri A. J. Pophaly, Advocate for appellant
Shri R. L. Khapre, Advocate for respondents no. 1 to 7
Respondent no. 8 deleted
Respondents no. 9 and 10 served
-----
Cross Objection (St) No. 2175/2006
Appellant : The New India Assurance Company Limited,
Sharda Centre, 2nd floor, Behind Nal Shop,
Karve Road, Pune, through the Regional
Manager, New India Assurance Co. Ltd., having
its Office at Dr Ambedkar Bhawan, MECL
Office Building, Sitabuldi, Nagpur
versus
Respondents : 1) Smt Samindrabai wd/o Bhagwan Kharde,
aged about 37 years, Occ: Household
2) Santosh s/o Bhagwan Kharde, aged about
21 years, Occ: Education/Student
3) Kum Savitri d/o Bhagwan Kharde, aged
about 15 years, Occ: Education/Student,
4) Kum Tulsabai d/o Bhagwan Kharde, aged
about 13 years, Occ: Education/Student,
5) Kum Ujwala d/o Bhagwan Kharde, aged
about 11 years, Occ: Education/Student,
6) Machhindra s/o Bhagwan Kharde, aged
about 7 years, Occ: Education/Student
Respondents no. 3 to 6 being minors, through
their natural guardian mother, respondent no. 1
Smt Samindrabai wd/o Bhagwan Kharde,
7) Smt Kalabai w/o Abhaji Kharde, aged about
72 years, Occ: Household .... Deleted
Respondents no. 1 to 7 all residents of Alad,
Tahsil Deolgaonraja, Dist. Buldana
Respondents No. 1 to 7 are X-objectors
8) Prithvi s/o Harlal Lot, ... Deleted
9) M/s Pandit Auto Limited, S. No. 49/2-B,
Tathewada, Taluka Minshi, Dist. Pune
10) Smt Kausalyabai wd/o Bhagwan Kharde,
aged about 47 years, Occ: Agriculturist,
resident of Delkheda (Khurda), Taluka Jatrabad,
District Jalna
Shri A. J. Pophaly, Advocate for appellant
Shri R. L. Khapre, Advocate for X-objectors
Respondent no. 8 deleted
Respondents no. 9 and 10 served
-----
Coram : S. B. Shukre, J
Dated : 9/10th August 2017
Oral Judgment
1. This judgment disposes of First Appeal filed by the insurer
and the X-Objection preferred by original claimants (respondents no. 1 to
7). Parties shall be hereinafter referred to as per their status in first
appeal.
2. Appellant is the insurer of TATA chasis bearing temporary
registration No. MH-12/623 which was involved in the accident. It was
owned by respondent no. 9. Respondent no. 1 is the widow of deceased
Bhagwan Kharde; respondents no. 2 to 6 are the children of the
deceased and respondent no. 7 is the mother of the deceased.
Respondent no. 10 is also joined as party-respondent to the claim petition.
As per her case, she was the first wife of the deceased. The Award has
been passed for Rs. 1,82,500/- in favour of respondents no. 1 to 7 and
respondent no. 10. The liability to pay the amount of the Award has
been fastened jointly and severally upon the appellant-insurer and
respondent no. 8 Prithvi, driver of the TATA Chasis involved in the
accident.
3. On 3.7.1997 at about 02.30 pm, deceased Bhagwan, wanting
to return home as soon as possible in order to see his sick mother, was
waiting for ST Bus to arrive at the spot where he was standing. This spot
was on Jalna-Deulgaonraja Road. The ST Bus did not arrive, but one
TATA chassis, the vehicle involved in the accident, did come from jalna
side. Deceased Bhagwan raised his hand and stopped the TATA chassis.
Deceased requested the driver of the TATA chasis to give him lift and
started boarding the chasis. But, the driver, it appears, refused to oblige
the deceased. Not only this, the driver of TATA chasis suddenly
accelerated the speed of the vehicle and the deceased lost his balance and
fell off the chasis. Even the truck driver lost control over the steering
wheel and the chasis dashed against a road side tree situated near-by. In
this accident, deceased Bhagwan sustained grievous injuries. It is claimed
by respondents no. 1 to 7 that deceased Bhagwan at the time of accident
was 35 years old and earned handsomely, about Rs. 4000-5000 per
month from his agriculture and allied activities including dairy business.
The claimants submitted that they were dependents upon income of the
deceased and, therefore, they filed claim petition for compensating their
loss. Respondent no. 10 was also later on allowed to be added to the
claim petition as, according to her, she was the first wife of the deceased
and, therefore, interested in receiving the compensation. As a result of
such intervention, respondent no. 10 withdrew the claim petition filed by
her at Jalna and presented her claim in this matter.
4. The claim petition was opposed by the appellant on the
ground that the driver of the TATA chais did not hold valid driving licence
at the relevant time to drive heavy motor vehicle and he held driving
licence only to drive light motor vehicle. According to it, there was
breach of the terms and conditions of the insurance policy and, therefore,
driver and owner of the TATA chasis truck were responsible to pay
compensation to the claimants.
5. On merits, the Tribunal rejected such opposition of the
appellant and found that it was along with the driver of the truck, liable
to pay the compensation to the claimants as well as the first wife of the
deceased on account of loss they suffered owing to the death of Bhagwan.
Accordingly, by the Award dated 1st August 2005, the claim petition was
partly allowed. Not being satisfied with the same, the insurer is before
this Court in the appeal. Respondents no. 1 to 7 are also not satisfied
with the compensation that is awarded by the Tribunal and they have
preferred cross-objection claiming compensation of Rs. 3,00,000/- upon
modification of the Award.
6. I have heard learned counsel for the appellant and learned
counsel for respondents no. 1 to 7/cross-objectors. Shri Khapre submits
that respondent no. 7 Smt Kalabai, mother of the deceased, as per his
information very recently received, has died. He, therefore, prays for
deletion of the name of respondent no. 7 from the array of respondents.
Learned counsel for the appellant submits that suitable orders be passed.
Accepting the statement of Shri Khapre, name of respondent no. 7 Smt
Kalabai is directed to be deleted at the risk of these respondents from the
array of parties. Deletion be caused forthwith. Respondent no. 8 is
deleted from the array of parties. None appears for respondents no. 9 and
10. I have gone through the record of the case.
7. Now, the following points arise for my determination:
(1) Whether the appellant has proved that it is not liable to pay any
compensation in the present case ?
(2) Whether the compensation awarded by the Tribunal is just and
proper ?
8. Shri Pophaly, learned counsel for the appellant in his detailed
arguments has made a valiant effort to convince this Court that the
Insurance Company is not liable to pay compensation in the present case.
In the process, however, learned counsel for the appellant has graciously
conceded to the fact that the vehicle involved in the present case is a light
motor vehicle as defined under Section 2 (21) of the Motor Vehicles Act,
1988 with its admitted weight of not exceeding 7500 kilograms and that
the driver on the vehicle was holding valid driving licence for light motor
vehicle. Now, that it is clear that the vehicle involved in the present case
was light motor vehicle, the defence of the insurance company taken in
this regard holds no water.
9. It is the submission of learned counsel for the appellant the
accident had occurred at the time when the process of boarding the truck
was completed and thus, the deceased could be treated as a gratuitous
passenger. Alternatively, he submits that even if it is assumed just for the
sake of argument that there was no permission given by the driver of the
chasis to the deceased to get on to the chasis, it would have to be
accepted that since the process of boarding the chasis was completed and
the accident had occurred about 300 feet away from the spot where the
deceased was standing, it was owing to the complete negligence on the
part of the deceased who was a gratuitous passenger. He has invited my
attention to the evidence brought on record by the parties. This evidence
is of PW 3 Santosh Deshmukh, the pancha witness, evidence of PW 1
Samindrabai, widow of the deceased, First Information Report (exhibit
26) and spot panchanama (exhibit 27). He also invited my attention to
the pleadings made in the petition under Section 166 of the Motor
Vehicles Act wherein the claimants had contended that the accident had
occurred when the deceased was clinging on to the body of the chasis.
10. Shri Khapre, learned counsel for respondents no. 1 to 7
submits that the evidence brought on record by the parties does not lead
to any such inference that the process of boarding was complete and that
it was with the permission of the driver of the chasis truck. He submits
that on the contrary, the evidence is of such nature as would show that
the driver had refused entry of deceased Bhagwan into the chasis truck
and that he had accelerated the speed of the truck so as to get rid of the
deceased because of which deceased was thrown off the chasis and
perhaps came under the wheels of the chasis and met with his
instantaneous death. He submits that the pleadings under Section 166
would also not show any such facts as would give any indication that
deceased Bhagwan had already got into the truck when the accident
occurred. He further submits, even otherwise, there being no specific
defence taken in the Written Statement of the appellant in this regard,
now the appellant cannot be permitted to take the same. He has also
placed reliance upon the same evidence as has been relied upon by
learned counsel for the appellant.
11. It is true that no specific defence that the deceased himself
being negligent, was taken by the appellant. The law on the point is also
clear. So, now the appellant cannot be heard on the issue. Even otherwise,
if one considers the evidence available on record, one would see that this
defence now raised at appellate stage is not worth its salt.
12. But, let us first consider the issue of the deceased being or
not being the gratuitous passenger. The contents of spot panchanama of
accident (exhibit 27) show that the spot of accident was situated about
300 feet away from Anil Dhaba, the alleged boarding point of the
deceased and that even the pancha witness P.W. 3 Santosh has admitted
in his evidence that he had seen some brake marks on the road and
according to him, portion marked 'A' in the spot panchanama about tyre
marks being present upto the distance of 80 feet is correct. This evidence,
however, does not throw any light on the crucial aspects of the case as to
whether or not deceased Bhagwan had really succeeded in boarding the
chasis and if yes, whether or not it was with the consent of the driver.
Then, it is also a specific case of the claimants that in fact, the boarding
was never over, rather an attempt was made to climb over the frame of
the chasis, but the driver of the chasis foiled it by giving a blow to the
deceased and then he sped away with the chasis because of which
deceased fell down on the road and sustained fatal injury. This is also the
evidence given by P.W. 2 Rodba. In examination-in-chief he has stated
that after the chasis came to a halt, he saw that there was a talk between
Bhagwan and the driver. He further states that he saw Bhagwan getting
into the chasis, but the driver drove his vehicle fast and it dashed against
a tree and Bhagwan fell down. There was a suggestion given to this
witness by the appellant to the effect that the accident occurred at the
time when the deceased was clinging on to the chasis and this suggestion
was denied by P. W. 3 Rodba. But denial of this suggestion would not
positively prove the fact that the accident occurred when deceased
Bhagwan had already with the consent of the driver got on to the chasis.
It can also mean that attempt to climb over the body of the chasis was
possibly curbed at the initial stage and the deceased even did not get an
opportunity to hang on to the frame of the chasis. So, some more
circumstances to clarify the position should have been brought on record,
but they were not. It is significant to note at this juncture that the case of
the claimants that the accident occurred when deceased Bhagwan was in
the process of boarding the chasis and that there was sudden acceleration
of the chasis has not been specifically denied by the appellant. The
cumulative effect of such evidence would be that there was a refusal of
the driver to accede to the request of deceased Bhagwan to allow him to
board the chasis and travel by the same. This would then mean that
deceased Bhagwan was not a gratuitous passenger and was in the
category of "third party".
13. Now, the alternate submission of learned counsel for the
appellant that deceased himself was responsible for causing of the
accident as he had tried to force his entry into the body of the chasis
needs attention. On merits, the submission has no force in it, because the
evidence suggests, as discussed earlier, that the accident occurred not
because the deceased tried to enter the chasis, but because of the fact
that the driver of the chasis upon his refusal to board the chasis by
Bhagwan, accelerated it as he wanted to show to the deceased that he
was not welcome on board the chasis. Then, as stated earlier, such
defence would also not be available to the appellant in view of the fact
that no direction was passed by the Tribunal under Section 170 of the
Motor Vehicles Act, as rightly pointed out by learned counsel for the
respondents, conferring right on the appellant to contest the claim on this
ground.
14. In view of the foregoing discussion, what I clearly see is that
the finding recorded by the Tribunal that the accident occurred only
because of the negligence shown by the chasis driver is neither perverse
nor illogical nor of the nature which does not naturally arise from the
evidence available on record. I do not see any error in such a finding by
the Tribunal and the same is confirmed.
15. Once it is found that the accident occurred only because of
the negligence on the part of the chasis driver and it is also seen that the
deceased was third-party, the appellant being insurer of the chasis would
be liable to make good the loss suffered by the claimant as a result of
death of Bhagwan, their solitary bread-earner. Therefore, appellant
cannot escape from its liability to pay compensation in the present case to
the claimants. First point is answered accordingly.
16. Now, it would have to be decided as to whether or not the
compensation awarded by the Tribunal was just and proper. Shri
Pophaly, learned counsel for the appellant has submitted that there was
no documentary evidence brought on record proving the income of the
deceased. He also submits that no receipts for sale of goods or any other
agricultural produce were adduced in evidence. Thus, according to him,
the oral testimony of P.W. 1 Samindrabai on the point of income of the
deceased in the absence of necessary documentary proof cannot be relied
upon and at the most, the notional income of the deceased can be
considered. Learned counsel for the claimants, however, does not agree.
According to him, 7/12 extract (exhibit 32) would show that deceased
owned two large pieces of land - one admeasuring 4.35 HR and the
other 1.98 HR and that the deceased himself used to cultivate the
agricultural lands. He submits that apart from the cultivation of lands,
the deceased also owned 4-5 buffaloes from which he used to get
supplementary income. Thus, according to him, at any rate, the income
of the deceased could not be considered to be less than Rs. 4000/- per
month.
17. It is true that no documentary evidence in the nature of crop
sale or agricultural produce sale receipts has been tendered in evidence by
the claimants. It is also true that no receipts whatsoever in respect of
purchase or sale of buffaloes or their milk were adduced in evidence by
the claimants. But, it is not disputed that the deceased was able-bodied
man and was not sitting idle. 7/12 extracts show that the deceased was
the owner of two large pieces of agricultural lands together comprising
16 acres and that deceased himself used to till and cultivate these lands
by taking such crops as cotton, tur (gram) etc. This would certainly show
that the deceased was engaged in activity of earning and he himself was
a tiller. If this is so, it would be very easy for this Court to visualize the
annual income of the deceased which could be about Rs. 48,000/- per
annum. At the time of accident, as per the 7/12 extracts, deceased
appeared to be taking crops only for one season i.e. kharip season. One
does not know whether or not he would have intensified his activity of
cultivation in future. But, considering the fact that he had large family
to support, it would be reasonable to expect that the deceased would have
been fain to expand the agricultural activity and, therefore, some
provision for future prospects, in these facts, can be reasonably made.
As per Sarla Verma v. Delhi Transport Corporation reported in (2009)
6 SCC 121, such future prospects would be @ 50% of the annual income.
Learned counsel for the appellant at this stage points out that out of the
above 16 acres of land, land admeasuring 4 acres had fallen to the share
of the deceased. There is no evidence available in this regard.
Nevertheless, if it is accepted as true, still, the position on the point of
income and future prospects would not change, if one considers the
evidence that the deceased himself was the tiller of all the lands.
Therefore, it may not be unjust to draw an inference that in the present
case the deceased must be earning annual income of Rs. 48,000/- from
his agricultural activities.
18. Learned counsel for the appellant submits that the income of
Rs. 48,000/- per annum cannot be taken to be actual loss of the
claimants, because the lands are still available for cultivation and can
certainly be cultivated by the claimants or any of them or near relatives. I
would have accepted the argument had there been effective cross-
examination on his issue made by learned counsel for the appellant before
the Tribunal or some suggestions given by him in that regard. But, that is
not the case here. It is not known as to whether or not the responents or
any of sons or any relative were or would be in a position to cultivate the
land in the absence of the deceased. Only because the deceased left
behind some legal heirs would not by itself be sufficient to infer that any
of the legal heirs possessed the inclination, skill and capability to cultivate
the lands. There has to be some positive evidence brought on record in
this regard. Of course, the claimants on their part have also not said
anything about the possibility of the lands being cultivated or otherwise.
There are no 7/12 extracts placed on record by the appellant either
showing the position about cultivation of lands after the death of
Bhagwan. If the appellant wishes to put forward the point of cultivability
of lands after Bhagwan, it should have brought on record some
circumstances showing such possibility. But, it has not. So, this Court
would have to decide this issue on the basis of facts and circumstances
presently available on record. Admittedly, the children were minor at the
time when the claim petition was filed and one does not know, when they
would have attained the inclination and skill to cultivate the lands, if at
all. In these circumstances, this Court would have to conclude that what
used to be earned by deceased Bhagwan from the cultivation of lands, is
now a loss of income for respondents no. 1 to 7. Argument of learned
counsel for the appellant is, therefore, rejected.
19. Although it is submitted by learned counsel for the appellant
that on the basis of Sarla Varma (supra), addition of 50% by way of
future prospects is not permissible, law in this regard has been clarified
by the Hon'ble Supreme Court in the case of Rajesh & ors v. Rajbir Singh
& ors reported in (2013) 9 SCC 54 when it observed in paragraph 8 that
in the case of self-employed one or a person with fixed wages where the
age of the deceased was below 40 years, there must be an addition of
50% to the actual income of the deceased while computing future
prospects. So, addition of future prospects even in case of a self-
employed person is a must and that is the law which is no longer res
integra.
20. Thus calculated, the annual income (Rs. 4,000/-) along with
future prospects of the deceased (Rs. 2000/-) would have to be taken at
Rs. 72,000/- (Rs. 6000 x 12). From this amount, considering the large
family of the deceased in which there were at least six members, 1/5th
amount would have to be deducted on account of personal expenses of
the deceased. There is no dispute that at the time of accident, deceased
Bhagwan was 35 years old. As per Sarla Verma (supra), the appropriate
multiplier for the age group of 31-35 years is "16". By applying this
multiplier, total loss of dependency in the instant case can be calculated.
To this amount, further addition of the amounts on account of such heads
as loss of consortium for respondent no. 1 at Rs. 1,00,000/- and loss of
love and affection for five children @ Rs. 100,000/- per child, will have
to be added.
19. The compensation payable to the respondents computed in
the manner stated above, would be in the following terms :
(1) Annual income of the deceased of Rs. 48,000/- plus
Rs. 24,000/- on account of 50% future prospects, would
come to Rs. 72,000/-
(2) Deduct Rs. 14,400/- (1/5th of annual income)
from the above on account of personal
expenses and the annual loss of dependency would come to
Rs. 57,600/-
(3) Appropriate multiplier for the age group of 31-35 years
would be "16".
(4) Hence, the total loss of dependency would come to
Rs. 9,21,600/- ... (A).
(5) Loss of consortium for respondent .. Rs. 1,00,000/-
no. 1
(6) Loss of love and affection for five .. Rs. 5,00,000/-
children @ Rs. 100,000/- each child'
(7) Total of (5) and (6) .. Rs. 6,00,000/- .. (B)
Total of (A) and (B) viz. Rs.8,64,000
+ Rs. 6,00,000/- Rs. 15,21,600/-
Thus, I find that the total compensation payable to the
original claimants (respondents no. 1 to 7) would be of Rs. 15,21,600/-.
22. Respondent no. 10 Kaushalyabai is the first wife of deceased.
But, the evidence available on record does not show that she was in any
manner dependent upon the deceased. The compensation granted under
Section 166 of the Motor Vehicles Act is for indemnifying the loss suffered
by the legal heirs who were dependent upon the deceased. Therefore, the
compensation payable under Section 166 cannot be equated with a right
a legal heir may have in the property left by the deceased. In fact, for the
purposes of inheritance and succession, the compensation awarded under
such claim could not be considered as the property which, as a matter of
right, the legal heirs would inherit. The law of compensation as
developed under the Motor Vehicles Act arises from a claim based on the
principle of indemnity and not on the principle of inheritance and
succession, and a person can be indemnified only when he or she directly
or indirectly suffered loss for the wrong committed by another. A person
who is not a dependent upon the deceased who has expired in an
accident, cannot be said to be a person who has suffered any loss.
Therefore, I do not think that respondent no. 10 Kaushalyabai (widow)
would be entitled to receive any compensation in law in the facts and
circumstances of the present case and as such, her claim deserves to be
rejected.
23. The compensation determined under this order shall be
payable by the appellant-The New India Assurance Company Limited
together with interest @ 7% per annum from the date of application till
actual realization together with respondent no. 9 jointly and severally, the
owner of the TATA chasis. This amount shall be paid after adjusting the
amount already deposited in this Court or in the Tribunal by the appellant
Insurance Company, within one month from the date of payment of
requisite court fees on the enhanced compensation by the respondents
no. 1 to 7. The respondents/cross-objectors shall pay the requisite court
fees on the enhanced compensation amount within one month from the
date of this order.
24. First Appeal is dismissed and X-Objection is partly allowed in
the above terms. The impugned award stands modified accoefingly.
Parties to bear their own costs of this appeal and x-objection.
S. B. SHUKRE, J
joshi
