Bajaj Allianz General Insurance ... vs Smt. Sukhshala Babasaheb @ ...
2017 Latest Caselaw 6667 Bom

                                                                                  FA284_2016.doc

Vidya Amin

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION

                                     FIRST APPEAL No. 284 OF 2016

             Bajaj Alliance General Insurance Co. Ltd.            ... Appellant
                   Vs.
             Smt. Sukhshala B. Funde & Ors.                        ... Respondents

             Mr. M.M. Sathaye, Advocate for the appellant.
             Mr. Yuvraj P. Narvankar, Advocate for respondent nos. 1 to 3.

                                                 CORAM: MRS.MRIDULA BHATKAR, J.
                                                   DATE: 31st August, 2017.

             ORDER:

Admit. By consent, the First Appeal is heard finally at the

stage of admission.

2. This First Appeal is directed against the judgment and award

dated 15th June, 2013 passed by the learned Chairman, Motor

Accident Claims Tribunal, Pune in M.A.C.P. No. 1071 of 2008

granting compensation of Rs.14,40,715/- to the original claimants

@ 9% p.a. from the date of filing of the Petition, i.e., 22 nd September,

2008.

3. The respondents/original claimants are the wife, two major

children and one minor child. Out of them, one daughter is of

FA284_2016.doc

marriageable age. These respondents/original claimants have filed

an Application under section 166 of M.V. Act against the owner of the

truck and the appellant/insurance company claiming compensation of

Rs.12 lakhs.

4. On 23rd August, 2008 at about 7.15 a.m. Babasaheb @

Dadasaheb Funde was driving his tempo bearing No. MH-12/AU-

4310 from Katraj Kondhwa road, Pune. One truck bearing No. MH-

12/AQ5949 was proceeding ahead of the tempo of Babasaheb. The

truck was fully loaded with iron bars and major portion of the iron

rods was protruding out from the back side of the truck. Babasaheb

was driving the tempo with a moderate speed. However, the truck

driver suddenly stopped the truck, due to which the tempo dashed on

the pointed ends of iron rods. This caused severe head and body

injuries to Babasaheb. He was admitted to the hospital and was in

I.C.U. for 9 to 10 days. Thereafter, Babasaheb Funde succumbed to

the injuries on 2nd September, 2008.

5. It was pleaded in the application that the accident has caused

due to rash and negligent driving of the truck driver. It was

contended that the deceased was earning Rs.10,000/- p.m. from his

tempo business and was having agricultural income to the extent of

FA284_2016.doc

Rs.5,000/- to Rs.6,000/- and thus, the applicants made a claim of

compensation of Rs.12 lakhs.

6. The insurance company appeared in the proceedings and filed

its written statement opposing the claim. The respondent-company

had challenged its liability mainly on the ground of contributory

negligence and also on the point that the driver of the truck was not

holding a valid licence.

7. The claimant stepped in the witness box and one Pravin

Jadhav from Bharati Hospital, where deceased Babasaheb was

admitted from 23rd August, 2008 to 2nd September, 2008, was

examined as a witness. The opponent examined Shashikant kale,

Junior Clerk in R.T.O., Mumbai. He produced the papers and driving

licence of truck driver Chandrakant. After considering the oral as well

as documentary evidence of the witness, the learned Chairman,

Motor Accident Claims Tribunal allowed the application wholly.

Hence, this Appeal.

8. The learned counsel for the appellant company has submitted

that the deceased Babasaheb was driving tempo and the tempo

dashed the truck which was proceeding ahead. Babasaheb died due

FA284_2016.doc

to injuries caused to him from the iron rods which were protruded out

of the truck. However, this accident was due of the rash and

negligent driving of the deceased and the driver of the truck cannot

be held responsible for this. At the most, it is a case of contributory

negligence and the trial Court has failed to appreciate this defence.

He further argued that the insurance company has challenged the

impugned judgment and award on the ground of quantum also. The

learned Chairman, Motor Accident Claims Tribunal has erred in

accepting Rs.10,400/- as a monthly income and granted excessive

compensation to the claimants. He further submitted that the

deceased was in the business of transport, however, his own tempo

was not insured and thus he was negligent and this ought to have

been considered as a contributory negligence. The learned counsel

has further argued that the learned Chairman, Motor Accident Claims

Tribunal has erred in granting 30% increase in the monthly income

towards the future prospectus. He submitted that the judgment and

award dated 15th June, 2013 passed by the learned Chairman, Motor

Accident Claims Tribunal, Pune is to be set aside.

9. The learned counsel Mr. Narvankar appearing for the

respondents/original claimants opposed this Appeal and justified the

FA284_2016.doc

judgment and award passed by the learned Chairman of Motor

Accident Claims Tribunal.

10. Heard the submissions. Perused the impugned order and the

evidence. The deceased followed the truck involved in the accident.

The truck was loaded with iron rods and major portion of the iron

rods was protruding out from the back side of the truck. The truck

driver applied the break, therefore, the truck stopped and the tempo

driven by the deceased had impact with the rods. The deceased had

sustained injuries due to the rods which were coming out of the body

of the truck. Though it was rear side dash, the deceased cannot be

held responsible for the accident for the reason that the rods loaded

in the truck were protruding out from the body of the truck. A goods

carrier is expected to take minimum precaution that the goods loaded

in the vehicle should not come out the body of the vehicle or should

not fall on others. The loading should not be such that it should

cause any physical harm to passerby or other commuters. It is an

absolute responsibility of the owner, driver of the goods carrier.

While driving, correct judgment of the distance is a major factor. If

any part of the goods is coming out of the body of the truck, then it is

difficult for the driver of the rear side vehicle to have correct judgment

FA284_2016.doc

of the distance while applying the break. Therefore, this is not a case

of the contributory negligence.

11. In the evidence, the original claimant PW-1 in the cross-

examination has admitted that the tempo of the deceased was not

insured, however, this cannot be said as contributory negligence. If it

would have been insured, then the liability of the insurance company

would have been shared and reduced but that cannot be a ground to

bring down the amount of compensation which is awarded by the

learned Chairman, Motor Accident Claims Tribunal. Thus, the

judgment and award passed by the learned Member, Motor Accident

Claims Tribunal is found well reasoned and legal. The amount

awarded is just and adequate. Hence, the Appeal fails.

12. First Appeal is dismissed. Parties to bear the costs.

(MRIDULA BHATKAR, J.)