Bombay High Court
United India Insurance Co Ltd vs Chandrakala Vishnu Kokate And Ors on 12 July, 2017
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 291 OF 2007
WITH
CIVIL APPLICATION NO. 3867 OF 2008
United India Insurance Co. Ltd.
through its Divisional Manager
Office at Vinayakrao Patil Chowk,
Station Road, Aurangabad ...Appellant
versus
1. Chandrakala w/o Vishnu Kokate
Age 35 years, Occ. Household
R/o. Khodas, Tq. Kaij, District Beed
2. Bhagyashree d/o Vishnu Kokate
Age 14 years, minor U/g
mother, respondent No.1
3. Neha d/o Vishnu Kokate
Age 11 years, minor U/g
mother, respondent No.1
4. Parag s/o Vishnu Kokate
Age 5 years, minor U/g
mother, respondent No.1 ...Respondents
5. Bhagwan s/o Nanasaheb Kadam
6. Shyamrao Madhavrao Salunke
(Appeal is dismissed as against
respondent Nos. 5 and 6 by order
dated 28.7.2009)
.....
Mr. S.G. Chapalgaonkar, advocate for the appellant
Mr. R.R. Imale, advocate for respondent Nos. 1 to 4.
....
CORAM : V. K. JADHAV, J.
DATED : 12th JULY, 2017
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 12.12.2006
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passed by the learned Member, M.A.C.T. Ambajogai, in M.A.C.P. No.
96 of 2002, the original respondent No.3 insurer has preferred this
appeal.
2. Brief facts giving rise to the present appeal are as follows:-
a) Deceased Vishnu Narayan Kokate was in Government service as
an Agriculture Superintendent at Aurangabad. On 9.12.2001, at about
00.15 he was returning to his house after having dinner at Kale Hotel, in
a car bearing registration No. MH-20-U-998, alongwith his officers.
Respondent No.2 was driving the said car owned by the respondent
No.1 at the relevant time. On way, when the car reached near
Cambridge school, respondent No.2 had tried to overtake one unknown
truck, which was proceeding in the same directions. In that process, the
said car dashed against the back portion of the truck. In consequence of
which, deceased Vishnu had sustained head injury. He was immediately
shifted to the Hospital, where he succumbed to the injuries, while under
treatment.
b) Legal representatives/claimants approached the Tribunal by filing
M.A.C.P. No. 96 of 2002 for grant of compensation under various
heads. It has been contended in the claim petition that the accident was
caused due to rash and negligent driving on the part of driver of the car
i.e. respondent No.2. It has been contended that the driver of car failed
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to take proper care while driving the car on the road. Accordingly, the
claimants have claimed compensation of Rs.15,00,000/- with interest
and costs of the petition.
c) Respondent Nos. 1 and 2 have not filed their written statement
and the claim petition was ordered to be proceeded without their written
statement.
d) The appellant insurer has strongly resisted the claim petition by
filing written statement. It has been contended that the claimants have
not impleaded the truck owner and its insurance company as party to
the claim petition and as such, the claim petition is bad for non joinder of
necessary parties. It has also been contended that it is a case of
contributory negligence. The claimants have claimed exorbitant amount
of compensation.
e) The claimants have adduced oral as well as documentary
evidence in support of their contentions. The appellant insurer has not
adduced any evidence. The learned Member of the Tribunal by its
impugned judgment and award dated 12.12.2006, partly allowed the
claim petition and thereby directed the respondents alongwith the
appellant insurer to pay jointly and severally an amount of
Rs.10,51,000/- (inclusive of N.F.L. amount) to the petitioners together
with interest and costs. Hence, this appeal.
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3. Learned counsel for the appellant/insurer submits that the
respondents claimants have placed their reliance on the police
documents, such as F.I.R. Exh.23, spot panchnama Exh.24, inquest
panchnama Exh.25 and complaint Exh.26. Learned counsel submits
that after the accident, driver of car had lodged the complaint against
driver of said unknown truck, alleging in his complaint that the driver of
the said truck suddenly took the truck on the middle portion of the road
and as such car being driven by him dashed against back side portion
of the said truck. Learned counsel submits that once the document is
placed on record and it is exhibited, the claimants cannot be resiled
from the contents of the said documents. The claimants cannot place
their reliance on part of the documents and not upon the rest. Learned
counsel submits that the accident had taken place on account of rash
and negligent driving of driver of the truck alone and in the alternate the
aforesaid documents on record point out that driver of the said truck had
also contributed the negligence to certain extent. Learned counsel
submits that so far as the quantum of compensation is concerned, the
Tribunal has erroneously applied the multiplier 17 instead of 14.
Deceased Vishnu was 41 years of age at the time of his accidental
death and as such, relevant multiplier would be 14 and not 17. Learned
counsel for the appellant insurer fairly concedes the legal position that in
terms of comprehensive policy Exh.29, issued by the appellant insurer,
the risk of the occupier of the car is covered under the policy.
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4. Learned counsel for the appellant in order to substantiate his
submissions, placed reliance on the judgment of Supreme Court in the
case of Oriental Insurance Company Ltd. vs. Premlata Shukla and
others, reported in (2007) 13 SCC 476.
5. Learned counsel for the respondents original claimants submits
that on the basis of documents placed on record, the Tribunal has
correctly recorded the finding to the effect that driver of the car alone
was responsible for the accident and accident occurred due to rash and
negligent driving on the part of driver of the car. So far as the F.I.R.
Exh.23 and complaint Exh.26 are concerned, respondent No.2, who
was driving the car has made certain allegations against the driver of
said truck. However, as per the contents of spot panchnama, it appears
that spot of accident is towards northern side of tar road. It has also
been mentioned in the spot panchnama Exh.24 that the width of tar
road, at the spot of accident is 90 ft. Learned counsel submits that the
map drawn on spot panchnama, unmistakenly points out that said truck
was at the correct and extreme left side of the road. Thus, the fact that
dash was given from back side is sufficient to draw inference that driver
of the car had driven the car in rash and negligent manner. Learned
counsel submits that the Tribunal has awarded just and reasonable
compensation under the head of loss of future income, after considering
the salaried income of deceased Vishnu, however, learned counsel
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submits that the Tribunal has not awarded compensation under the
head of loss of consortium to respondent claimant No.1 and loss of love
and affection to minor claimants and also for funeral expenses. Learned
counsel submits that though the respondents claimants have not
preferred any appeal or cross appeal, they are entitled for just and
reasonable compensation under all permissible heads.
6. On perusal of the evidence and judgment and award passed by
the Tribunal, it appears that the appellant insurer though raised defence
of contributory negligence, however, in order to substantiate the same,
the appellant insurer has not adduced any oral or documentary
evidence. On the other hand, the appellant insurer has placed its
reliance on some police documents, such as F.I.R., spot panchnama
etc. On careful perusal of spot panchnama Exh.24 and map drawn on
it, it appears that considering the position of the car, the position of the
truck was assumed in the map drawn on the spot panchnama and it
appears that the position of the said truck was at the extreme left side of
tar road. It further appears from the contents of spot panchnama,
mostly the damage caused to the car on its cleaner side. Further dash
was given on the back side of the truck and same is sufficient to draw
inference that driver of the car had driven it in rash and negligent
manner. Such irresistible inference could be drawn when the cleaner
side portion of the car mostly got damaged in the accident and
deceased Vishnu sat on front cleaner side portion of the car. The
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appellant insurer has not examined respondent No.2 to substantiate its
contentions about the contributory negligence on the part of driver of the
truck nor examined any other eye witness. Respondent No.2, who was
driving the car at the time of accident is bound to make certain
allegations in the complaint lodged at the relevant time against the
driver of truck. However, it is for the Court to marshal the evidence and
arrive at correct conclusion. In the given set of facts, I do not find that
the Tribunal has recorded incorrect finding to the effect that accident
had taken place on account of rash and negligent driving of the driver of
car alone. So far as the reliance placed by learned counsel for the
appellant on the judgment of Supreme court in the case of Oriental
Insurance Company Ltd. vs. Premlata Shukla and others (supra) is
concerned, in my opinion, the same is not applicable to the facts and
circumstances of this case.
7. So far as the quantum of compensation is concerned, the
Tribunal has observed in para 13 of the judgment that deceased Vishnu
was 41 years and 4 months old at the time of his accidental death. In
view of same, relevant multiplier would be 14 instead of 17. The
claimants are also entitled for the compensation under the head of loss
of consortium and loss of love and affection and funeral expenses.
Though the claimants have not preferred any appeal or cross appeal,
the claimants are entitled for just and reasonable compensation under
the permissible heads. Respondents claimants are entitled for
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Rs.1,00,000/- under loss of consortium as against Rs.20,000/- and total
amount of Rs.1,00,000/- towards loss of love and affection for the minor
claimants Nos.2 to 4 as against Rs.15,000/- awarded by the Tribunal.
The claimants are also entitled for amount of Rs.19,400/- towards
funeral expenses as against Rs.3,000/- as awarded by the Tribunal.
8. In view of above, redetermination of compensation is required to
be made. Thus the break up of compensation under different heads
awardable to the claimants which can be broadly categorized is as
under:-
I. Loss of future income/dependency Rs. 8,31,600.00
(As against Rs.10,09,800/- as
awarded by the Tribunal)
II. Loss of consortium Rs. 1,00,000.00
(As against Rs.10,000/- as
awarded by the Tribunal)
III. Loss of love and affection Rs. 1,00,000.00
(Lump sum amount)
(As against Rs.15,000/- as
awarded by the Tribunal)
IV. Funeral expenses Rs. 19,400.00
(As against Rs.3,000/- as
awarded by the Tribunal)
----------------------
Total Rs.10,51,000.00
============
(Rupees Ten lacs fifty one thousand only)
9. Since the amount after redetermination is the same, there is no
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need to modify the operative part of order. There is no substance in the
appeal, except the application of relevant multiplier. The appeal is thus
liable to dismissed. Hence, I proceed to pass the following order.
ORDER
I. The appeal is hereby dismissed with costs.
II. The appeal is accordingly disposed of.
III. Pending civil application is also disposed of.
( V. K. JADHAV, J.)
rlj/
