Oriental Insurance Co. Ltd., ... vs Anandrao S/O Sitaram Tembhare & ...
2017 Latest Caselaw 4326 Bom

                                               1




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No.  528 of 2005



Appellant               :          Oriental Insurance Company Limited, 

                                   through its Divisional Manager, Division

                                   No. 3, Wardhaman Nagar, Nagpur

                                   versus

Respondents             :          1)   Mrs Amruta w/o Narayan Kumbhalkar,

aged about 52 years, Occ: Nil,

2) Narayan s/o Raoji Kumbahlakar, aged

about 57 years, Occ: Business

Both residents of Gangla, Tahsil Tiroda,

District Gondia

3) Ravanlal s/o Mohanlal Basane, aged

about 46 years, Occ: Driver, resident of

Dehutola, District Balaghat, MP

4) Anup s/o Hemraj Wegad, aged Major,

Occ: Hanuman Chowk, Balaghat, MP

Shri A. M. Quazi, Advocate for appellant

None appears for respondents though served

First Appeal No. 536 of 2005

Appellant : Oriental Insurance Company Limited,

through its Divisional Manager, Division

No. 3, Wardhaman Nagar, Nagpur

versus

Respondents : 1) Anandrao son of Sitaram Tembhare,

aged about 59 years,

2) Shakuntala w/o Anandrao Tembhare,

aged 51 years

3) Hemlata wd/o Shivkumar Tembhare,

aged 21 years,

4) Bali @ Mayuri d/o Shivkumar Tembhare,

aged 3 years, being minor through her

guardian-mother Respondent no. 3 Hemlata

All residents of Gangala, Tahsil Tiroda,

District Gondia

5) Ravanlal s/o Mohanlal Basane, aged

about 46 years, Occ: Driver, resident of

Dehutola, District Balaghat, MP

6) Anup s/o Hemraj Wegad, aged Major,

Occ: Hanuman Chowk, Balaghat, MP

Shri A. M. Quazi, Advocate for appellant

None appears for respondents though served

Coram : S. B. Shukre, J

Dated : 11th July 2017

Oral Judgment

1. Feeling aggrieved by the common judgment and order dated

9th May 2005 delivered by the Member, Motor Accident Claims Tribunal,

Gondia in Claim Petitions No. 11 of 2004 and 12 of 2004, the appellant

has filed these appeals.

2. Heard learned counsel for the appellant. None appears for

respondents though duly served.

3. The points that arise for my consideration are thus -

(1) Whether the compensation granted by the Tribunal

is just and proper ?

(2) Whether the appellant is liable to pay compensation ?

4. Although it is submitted by learned counsel for the appellant

that deceased driver, one Naresh Kumbhalkar, son of the claimants in

First Appeal No. 528 of 2005 was driving the car in a drunken state in the

night of 31st December 2003 and, therefore, he was solely responsible for

the accident, the evidence available on record suggests otherwise. In this

accident, not only driver Naresh died, but other occupant viz. Shivkumar,

son of respondents no. 1 & 2; husband of respondent no. 3 and father of

respondent in First Appeal No. 536 of 2005 also died due to grievous

injuries sustained in the accident. The accident was in the nature of a

collision between Fiat Car bearing registration No. MHV-3762 and the

Truck bearing registration No. MP-20-B/7340. No offence had been

registered against deceased Naresh, the driver of Fiat Car involved in the

accident. The spot panchanama proved in evidence vide Exhibit 22 clearly

shows that deceased Naresh died because of the run-over by the truck

involved in the accident. The report in respect of the accident was lodged

with police by some unknown person . The driver of the truck says that he

was present on the spot of accident for almost two hours. When he tried

to lodge report with the concerned Police Station, Goregaon, he could

not do so because no police personnel was available at the Police Station.

The truck driver has not given any particular time at which he allegedly

went to the Police Station. He has not stated about the distance between

the spot of accident and the Police Station and the time taken by him for

reaching the Police Station. He also did not clarify as to by what mode he

allegedly went to the Police Station. Not giving of these necessary

details would make one believe that this truck driver cannot be relied

upon for what he says regarding his going to the Police Station and

inability to file First Information Report in respect of the accident due to

the absence of police staff at the Police Station All these facts

cumulatively show that the finding recorded by the Tribunal regarding

rashness and negligence on the part of the truck driver is consistent with

the established facts and no error could be noticed in the same.

5. It is also the contention of learned counsel for the appellant

that there was at aleast composite neglignce and since the owner and

insurer of the Fiat car were not joined as necessary party, the impugned

Award has been vitiated. I am not inclined to accept this argument for

the reason that I have already found that it were the truck driver who was

solely responsible for the occurrence of the accident.

6. Learned counsel for the appellant submits that the deduction

of 1/3rd income in First Appeal No. 528 of 2005 is inconsistent with the

settled principles of law as it should have been at least one-half instead of

1/3rd of the total income. Although it is true that when a claim for

compensation on account of loss suffered because of the death of a

bachelor is to be determined, the income that is required to be deducted

on account of personal expenses would be to the extent of 50%. In First

Appeal No. 528 of 2005, deceased was bachelor and, therefore, one-half

deduction from his total annual income should have been made. But, that

has not been done by the Tribunal. The question would whether the

Court can now do so or not. I think in the facts and circumstances of this

case which appear to be quite peculiar, doing of such an exercise would

bring further injustice to the claimant as the Tribunal has already not

granted to the claimants the compensation under non-pecuniary heads.

Therefore, the submission deserves to be rejected and it is rejected

accordingly. However, the deduction made on account of personal

expenses by the Tribunal in the other appeal viz. First Appeal No. 536 of

2005 appears to be just and proper, and no further adjudication

thereupon is necessary.

7. Sofar as annual income considered by the Tribunal in order

to award compensation to the claimants in these appeals is concerned, I

do not think, any interference in the same is required. The consideration

of the annual income is based upon the evidence available on record. No

circumstances have been brought on record by the appellant so as to

express any doubt about the claim made by the claimants regarding

annual income of their dependence. Learned counsel for the appellant, in

particular, submits that in First Appeal No. 536 of 2005, claimants could

not be said to have lost any income because what has been considered by

the Tribunal is the annual income earned by deceased Shivkumar from

the cultivation of the agricultural field. In support, he places his reliance

upon the case of Vandana w/o Suryakant Solav & ors v. Gundappa s/o

Mandolappa Samangave & ors reported in 2016 (5) ALL MR 250

wherein a view has been taken, when evidence is available showing that

deceased was personally cultivating the land owned by him, there would

be no total loss of agricultural income as the claimant can always cultivate

the land even after the death of the deceased. In the instant case, the facts

are quite different. Claimants Anandrao and Smt Shakuntala who are

parents of the deceased, are aged persons and it cannot be presumed by

any logic that the aged persons would be able to personally go to the

agricultural field, withstand the rigor and vagaries of the nature and till

the land. Inability to cultivate the land by widow Hemlata and Mayuri, a

minor daughter of deceased Shivkumar can very well be taken for

granted. This aspect, it appears, has not been considered in the case of

Vandana w/o Suryakant Solav & ors v. Gundappa s/o Mandolappa

Samangave & ors (supra) relied upon by learned counsel for the appellant.

That apart, the income that used to be earned by deceased Shivkumar was

not only from the cultivation of land owned by him. Another source of

his income was also from the business of contractorship. Learned counsel

for the appellant submits that no evidence in this regard has been

adduced by the claimants on record. It is true that as regards the other

source of income no evidence has been brought on record by the

claimants. But, the fact remains that the parents of Shivkumar being old

and aged persons, no assumption can be made that they straightway in

absence of their son, could still cultivate the land and earn income from

that source.

Learned counsel for the appellant also submits that in First

Appeal No. 528 of 2005, there is evidence to show that the parents were

not dependent on deceased Naresh as the claimants have admitted in

their cross-examination that they have two more sons. A perusal of the

cross-examination discloses that no suggestion has been given to the

witness that the parents were solely dependent upon the other sons.

Therefore, all these contentions made on behalf of the appellant cannot

be accepted and they are rejected accordingly.

8. In the results, I do not find any substance in these appeals

and they deserve to be dismissed. Appeals stand dismissed. Parties to

bear their own costs.

S. B. SHUKRE, J

joshi