Icici General Insurance Company ... vs Leela Raosaheb Navgire
2017 Latest Caselaw 4509 Bom

                                      1                  FA NO.517 of 2010


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                       FIRST APPEAL NO. 517 OF 2010


           ICICI General Insurance
           Company Limited,
           ICICI Lombard General
           Insurance Company,
           Zenith House, Keshavrao Khadye
           Marg, Mahalaxmi, Mumbai,
           Through Its Legal Manager.

                                              ...APPELLANT
                                              (Ori.Resp.No.3)
           VERSUS

  1.       Leela w/d Raosaheb Navgire,
           Age 47 years, Occ.HH.

  2.       Kapil s/o Raosaheb Navgire,
           Age 20 years, Occ: Student.

  3.       Suvidha d/o Raosaheb Navgire,
           Age 22, Occu. Student.

           1 to 3 R/o Girner Tanda
           Tq. and Dist. Aurangabad.

                                              (Nos. 1 and 3 are
                                              Orig.Claimants)

  4.       Sampat Ganpat Narwade,
           Age 49 Occ. Driver
           R/o. C51/7 near Maruti temple
           Shivaji Nagar, Aurangabad,
           Tq. Dist. Aurangabad.

  (5.      Tarwade Transport PVT Ltd.
           Bajaj nagar Waluj, Aurangabad.)

                   (Appeal dismissed as against Respondent no.5 as
                    per order dt.13.4.2010)




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                                              2                   FA NO.517 of 2010


  (6.      Kadubai w/o Ganpat Navgire,
           r/o Aurangabad )

           (R/6 deleted as per dead .. Dt.3.7.2009)

                                                      ...RESPONDENTS
                          ...
  Mr. Swapnil S.Patil, Advocate, for the appellant.
                                      ...

                               CORAM: P.R.BORA, J.

DATE : July 14th, 2017

*** ORAL JUDGMENT:

1. Present appeal is filed challenging the judgment

and order passed by the Motor Accident Claims Tribunal,

Aurangabad, in MACP No.771/2008 on 25th of June, 2009.

The aforesaid claim petition was filed by the present

respondent nos. 1 to 3 ( hereinafter referred to as 'the

claimants'), claiming compensation on account of death of

one Raosaheb Navgire alleging the same to have been

caused in a vehicular accident happened on 16.9.2008

having involvement of a travel Bus bearing No.MH-20-W-

  9388, owned                  by respondent       no.5   and insured             with

  appellant Insurance Company.                     It was the contention of

  the      claimants           that     deceased    Raosaheb,         when         was





                                                3                    FA NO.517 of 2010

proceeding on his scooter, was dashed by the Travel Bus

and in the accident so happened, he suffered death.

The claimants had alleged that the accident in question

happened because of rash and negligent driving of the

driver of the Travel Bus. The claimants had claimed

compensation of Rs.18,00,000/- in total but, have

restricted the same for Court fee purpose to

Rs.10,00,000/-. The claim petition was resisted by the

Insurance Company on several grounds. After having

assessed the oral and documentary evidence brought

before it, learned Tribunal allowed the claim petition,

holding the driver, owner and insurer of the Travel Bus

responsible for the accident and directed original

respondent nos. 1 to 3 to jointly and severally to pay to

the claimants Rs.6,65,000/- as compensation. Aggrieved

thereby, the Insurance Company has filed the present

appeal.

2. Shri Swapnil S.Patil, learned Counsel appearing

for the appellant Insurance Company, assailed the

impugned judgment mainly on the quantum. Learned

Counsel submitted that, there is no convincing evidence as

4 FA NO.517 of 2010

about income of the deceased. The Tribunal has held the

income of the deceased to the tune of Rs.5,500/- per

month and has, accordingly, determined the amount of

compensation. Learned Counsel submitted that though it

was the case of the claimants that deceased was in the

employment of Nita Travels, and though it was possible for

the claimants to examine the employer to prove the salary

income, the said course was not adopted and, thus, the

salary income of the deceased was not proved. Learned

Counsel further submitted that though there was no

evidence about agricultural income, merely relying on the

oral statements of the dependents of the deceased, the

Tribunal has held the said income to the tune of Rs.1,000/-

per month, and considering total income to the tune of

Rs.5,500/- has awarded compensation to the claimants.

Learned Counsel submitted that the award, therefore,

needs to be appropriately modified by applying the criteria

of notional income.

3. Shri Bachate, learned Counsel appearing for the

original claimants, opposed the submissions made on

behalf of the appellant Insurance Company. Learned

5 FA NO.517 of 2010

Counsel submitted that it was not disputed that the

deceased was serving as a Driver with Nita Travels. In

the circumstances, according to the learned Counsel,

though the claimants did not examine the employer, the

Tribunal has not committed any error in holding the

income of the deceased from the work he was performing

as a driver to the tune of Rs.4,500/- per month. Learned

Counsel submitted that the claimant had placed on record

the license of the deceased to ply heavy goods vehicles.

Learned Counsel submitted that that was sufficient

evidence placed on record by the claimants so as to draw

the further inference that he was working as a driver on

heavy vehicle and, certainly, therefore, be earning salary

to the tune of Rs.4,500/-. Learned Counsel submitted

that, in so far as the agricultural income is concerned, the

necessary documentary evidence was placed on record

and the Tribunal has, therefore, rightly held the income of

Rs.1,000/- under the said head. Learned Counsel

submitted that no interference is warranted in the

impugned judgment and order.

4. I have carefully considered the submissions

6 FA NO.517 of 2010

made on behalf of the learned Counsel appearing for the

respective parties. I have perused the impugned

judgment and the other material on record. Apparently,

it does not appear to me that the Tribunal has awarded

compensation without any evidence or on higher side. As

has been discussed by the Tribunal, the deceased was

holding a valid driving license to drive heavy goods

vehicles. Having regard to the aforesaid fact, and further

considering that it was not denied or disputed that the

deceased was working as a Driver with Nita Travels,

merely because nobody from Nita Travels was examined to

prove the salary income, the entire said evidence could not

have been ignored by the Tribunal. The Tribunal has,

therefore, rightly held salary income of the deceased to

the tune of Rs.4,500/- per month. In so far as income

from agriculture is concerned, the conclusions recorded by

the Tribunal do not deserve any interference.

5. After having considered the entire material on

record, it does not appear to me that the Tribunal has

committed any error in awarding the compensation by

holding the income of the deceased to the tune of

7 FA NO.517 of 2010

Rs.4,500/- per month. No glaring mistake has been

brought to my notice in the discretion exercised by the

Tribunal which has been exercised on the basis of the

evidence brought on record.

The First Appeal, therefore, deserves to be dismissed

and, accordingly, it is dismissed without any order as to

the costs.

(P.R.BORA) JUDGE

...

AGP/517-10fa