United India Insurance Company ... vs Purnima Anand Pathak & Ors
2017 Latest Caselaw 4027 Bom

                                    1                                     FA976.2004

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      BENCH AT AURANGABAD.


                          FIRST APPEAL NO.976 OF 2004



The United India Insurance Company Limited, 
through its Branch Manager, 
Dhule Branch, Dhule                                       ..Appellant
                                            (Original Respondent No.3)

              Versus

1.            Smt. Purnima Anand Phatak
              Age : 47 years, Occu : Household

2.            Kum. Neeta Anand Phatak
              Age : 24 years, Occu : Education

3.            Kum. Deepa Anand Phatak
              Age : 22 years, Occu : Education

4.            Chetan Anand Phatak
              Age : 20 years, Occu : Education

              All residents of Sathe Chawl, 
              Bhide Bang, Deopur, Dhule, 
              Taluka & Dist. Dhule                    (Respondent nos.1 to 4/
                                                        Original petitioners)

5.            Pappu Rama Ramis
              Age : 41 years, Occu : Motor Driver, 
              Resident of Chote Bijasan, 
              Highway Road, Sendhawa, 
              Madhya Pradesh

6.            Mehabub Abdul Rehman (deleted)
                                               (Respondents No.5 & 6 /
                                                Original respondents 
                                                No.1 & 2)

                                                           .. Respondents 
                                     ..........




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                                       2                                 FA976.2004

                   Mr Soman, Advocate for appellant
          Mr. Mukul Kulkarni, Advocate for respondents no.1 to 4
                                .............


                                                CORAM  :  P.R. BORA, J.

                                                DATE      :  JULY 5, 2017.

 ORAL JUDGMENT : 

1. The present appeal is filed against the Judgment and

Award passed by the Motor Accident Claims Tribunal at Dhule on

17.10.2003 in Motor Accident Claim Petition No.105/1998.

2. The aforesaid claim petition was filed by the present

respondent nos.1 to 4 claiming compensation on account of the death

of one Anand Phatak alleging that, he died as a result of injuries

caused to him in a vehicular accident happened on 07.11.1997

having involvement of a truck bearing registration no.

MP/09/KA/8860 (hereinafter referred to as the 'offending truck')

insured with the appellant/Insurance Company. It was the case of

the respondent nos.1 to 4 (hereinafter referred to as the 'claimants')

that deceased Anand Phatak while proceeding on his Bajaj M-80

motorcycle was dashed by the offending truck and in the accident so

happened deceased Anand Phatak died on the spot.

3. The claimants had alleged that, the accident happened

3 FA976.2004

because of negligence on the part of the driver of the offending truck.

As was contended in the petition, deceased Anand Phatak was aged

about 47 years at the time of his death and was serving in

Maharashtra State Electricity Board. Deceased Anand Phatak was

getting monthly salary of Rs.8,684/-. The learned tribunal after

having assessed the oral and documentary evidence brought before it

held the claimants entitled for the total compensation of

Rs.8,49,000/- inclusive of the NFL amount and held the owner and

insurer of the offending truck liable to pay the amount of

compensation. Being aggrieved by the judgment and award, the

appellant/Insurance Company has preferred the present appeal.

4. Shri. Soman, the learned Counsel appearing for the

appellant / Insurance Company assailed the impugned award on

various grounds. The learned Counsel submitted that, though a

specific plea was raised by the appellant / Insurance Company

alleging negligence on the part of deceased Anand Phatak also and as

such though it was the case of contributory negligence, the learned

tribunal has altogether ignored the said objection and has failed in

appreciating the evidence on the said count.

5. The learned Counsel for the appellant / Insurance

4 FA976.2004

Company further submitted that, had deceased Anand Phatak driven

his motorcycle with due diligence at the relevant time, perhaps the

accident could not have taken place. The learned Counsel submitted

that having regard to the circumstances in which the alleged accident

had happened, the driver of the offending truck cannot be held solely

responsible for occurrence of the accident and hundred percent

negligence cannot be attributed to him. The learned Counsel

submitted that, the tribunal while scrutinizing the evidence on record

has failed in considering these aspects. The learned Counsel further

submitted that, the circumstances on the spot show that, deceased

Anand Phatak was equally negligent in driving his vehicle. The

learned Counsel further submitted that, while determining the

amount of compensation also, the tribunal has committed an error in

not determining the amount of compensation on the take home

salary of deceased which in fact was the amount which deceased was

spending for the welfare of his dependents. The learned Counsel

therefore, submitted that, the award needs to be modified on the

aforesaid two grounds.

6. Shri. Mukul Kulkarni learned Counsel appearing for the

claimants supported the impugned Judgment and award. The

learned Counsel submitted that, when a plea was taken by the

5 FA976.2004

Insurance Company alleging negligence on the part of the deceased,

the burden was on the Insurance Company to prove the said defence

by adducing positive evidence in that regard. The learned Counsel

submitted that, the Insurance Company has admittedly not adduced

any oral or documentary evidence. The learned Counsel further

submitted that, the police papers clearly reveal that, deceased Anand

Phatak while proceeding on his M-80 motorcycle was dashed from

his behind by the offending truck and in the accident so happened, he

died on the spot. The learned Counsel submitted that, considering the

situation on the spot and the manner in which the alleged accident

had happened, no negligence was liable to be attributed on the part

of the deceased and the tribunal has rightly held the driver of the

offending truck solely responsible for occurrence of the alleged

accident.

7. I have carefully considered the submissions advanced by

the learned Counsel appearing for the respective parties. I have

perused the impugned Judgment and the evidence on record. It is

the first objection raised by the appellant that, though present was

the case of contributory negligence, the tribunal has held the driver

of the truck insured with the appellant solely responsible for causing

the accident in question. As was submitted by the learned Counsel

6 FA976.2004

for the appellant there was evidence on record showing that, in

occurrence of the alleged accident negligence on part of deceased

motorcyclist was also responsible. The contention so raised by the

learned Counsel cannot be accepted in view of the evidence on

record. I have carefully perused the spot panchanama revealing the

situation on the spot. The evidence on record clearly reveals that,

deceased motorcyclist was dashed by the offending truck from his

behind. No evidence has been adduced on behalf of the Insurance

Company to substantiate its contention that, the deceased

motorcyclist was plying his motorcycle in rash and negligent manner

so as to attribute some negligence on part of the deceased

motorcyclist. When a specific plea was raised by the Insurance

Company alleging negligence on the part of the deceased

motorcyclist, it was incumbent on the part of the Insurance Company

to substantiate the defence so raised by it by adducing proper

evidence therefor. In absence of any such evidence and having

regard to the evidence existing on record, there appears no substance

in the objection so raised by the appellant. I therefore reject the said

objection.

8. The second objection raised by the Insurance Company is

as about the quantum of compensation. It is the contention of the

7 FA976.2004

appellant that, the tribunal must have determined the amount of

dependency compensation on the basis of the take home salary of

deceased and not on the basis of his gross salary. The contention so

raised is also liable to be rejected at the threshold in view of the

settled legal position in this regard. The claimants had sufficiently

proved that, the monthly salary of deceased was Rs.8,684/-. After

deducting the amounts of Provident Fund contribution, LIC premium,

society, debt etc., the net take home salary of deceased was

Rs.4,297/-. However the deductions towards PF contribution, LIC

premium were not liable to be deducted from the gross salary of

deceased while computing the amount of compensation payable to

his dependents. The amount of Professional Tax, Income Tax, if any,

and the amount paid to deceased for his personal convenience were

only liable be deducted from his gross salary. In the circumstances

the tribunal has rightly assessed the amount of compensation by

holding the salary of deceased to the tune of Rs.8,500/- per month

after having deducted permissible amounts from his gross salary of

Rs.8,684/-. I, therefore, do not see any infirmity in the amount of

compensation as has been determined by the tribunal.

9. After having considered the entire material on record, it

does not appear to me that, the appellant has made out any ground

8 FA976.2004

for causing interference in the impugned Judgment and Award. The

appeal being devoid of any merit deserves to be dismissed and is

accordingly dismissed, however without any order as to the costs.

[ P.R. BORA ] JUDGE

ggp