The Oriental Insurance Company ... vs Smt Rajkumari Laxmikant Pandey & ...
2017 Latest Caselaw 4521 Bom

236-FA-235-06                                                                        1/8


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

                          FIRST APPEAL  NO.235 OF 2006


The Oriental Insurance Company Limited, 
Branch : Chandrapur, Tahsil and Dist. Chandrapur, 
Thr. Its senior Divisional Manager, 
Nagpur Divisional Office-I, A. D. Complex, 
Mount Road, Sadar, Nagpur.                                .... Appellant. 

vs-

1.  Rajkumari w/o Laxmikant Pandey
    Aged about 50 years, Occ. Household, 

2.  Laxmikant s/o Shivjatan Prasad Pandey,
    Aged about 56 years, Occ. Nil. 

3.  Vandana d/o Laxmikant Pandey,
     Aged bout 21 years, Occ. Student.  

    All residents of Near Gajanan Maharaj 
    Mandir Road, Chandrapur, Tahsil and 
    District Chandrapur (Original Claimants) 

4.  Tulshiram s/o Kisan Soyam,
     Aged about 41 years, Occ. Driver, 
     R/o Akapur,  P. S. Mul, Tahsil. Mul 
     District Chandrapur (Original non-applicant No.1) 

5.  M/s Prakash Tiles Factory,
     Through its Proprietor 
     Prakash Marakwar, 
     resident of at Post : Mul, 
     Tah. Mul, Dist. Chandrapur, 
     (Original non-applicant no.2).                       ... Respondents. 


Shri D. N. Kukday, Advocate for appellant/Insurance Company.  




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                CORAM  :  DR (SMT) SHALINI PHANSALKAR-JOSHI, J. 

DATE : JULY 14, 2017

Oral Judgment :

This appeal is preferred by the Insurance company of the

offending vehicle which is held jointly and severally liable for payment of

compensation amount of Rs.5,99,940/- by Motor Accident Claims Tribunal,

Chandrapur vide its judgment and order dated 02/11/04 in C. P. No.142 of

2001.

Brief facts of appeal can be stated as follows :

2] On 11/09/2001 at about 5.30 pm, deceased Nishant Pandey

along with one Raju Maroti Bhagat was proceeding on his motorcycle

bearing No.MH-34-G-964 from village Mul to Chandrapur. At that time one

truck bearing No.MTG 9952 driven by respondent No.4 and owned by

respondent No.5 came in high speed in rash and negligent manner and gave

dash to the motorcycle. As a result of it, deceased sustained several injuries

and succumbed to those injuries in the Government Hospital at Chandrapur.

3] At that time deceased was of 30 years age. He was unmarried and

was carrying on Travels business. He was having four Travel buses. He was

earning more than Rs.20,000/- per month. On account of his death,

respondent Nos.1 and 2, his parents and respondent No.3 his sister have lost

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their financial support. Hence they filed claim petition before the Tribunal

seeking compensation of Rs.22,00,000/- from the appellant and respondent

Nos.4 and 5.

4] This Petition came to be resisted by the appellant. Respondent

Nos.4 and 5 did not appear though duly served with notice.

5] Appellant herein has raised three defences. The first being that

the driver of the truck was not having valid and effective driving license.

Secondly, the income which is quoted by the claimants was on higher side

and there was no reason to grant a compensation which was claimed and

which was exorbitant. Thirdly, it was submitted that the motor cycle was

also involved in the accident but its owner and Insurance company of the

Motor-cycle were not joined as party respondent and therefore claim petition

was bad for non-joinder of necessary parties.

6] On the respective pleadings of the parties, the Tribunal framed

three issues for its consideration and held that as the accident took place due

to the fault of truck driver, the claim cannot be said to be bad for non-joinder

of necessary parties. On the basis of evidence adduced before it, the

Tribunal held that the deceased was doing travel business and hence his

income can be taken to be Rs.5000/- per month. After deducting 1/3rd

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amount towards expenses of the deceased, Tribunal awarded compensation

of Rs.5,99,940/- with interest at the rate of Rs.9% p.a. from the date of filing

the petition till realization of the amount.

7] This judgment of the Tribunal is challenged in this appeal by

learned counsel for the appellant on three counts. First, it is submitted that

though a specific plea was raised in the written statement that the driver of

the offending vehicle-truck was not holding valid driving licence, the

Tribunal has not framed even issue to that effect nor is there any discussion

in the entire judgment.

Secondly, it is submitted that in absence of any evidence about

the income of the deceased and the Tribunal itself disbelieved that the

income cited i.e. 20,000/- per month, it was not proper on the part of the

Tribunal to consider the the income of the deceased as Rs.5000/- per month.

It is also urged that as the deceased was unmarried, 50% of the amount

should have been deducted towards his personal expenses and appropriate

multiplier should have been applied, considering the age of the parents of the

deceased which was on higher side.

Thus, according to the learned counsel for appellant on these

three grounds, interference is warranted in the impugned judgment and

order of the Tribunal.

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8]           Per   contra,   learned   counsel   for   the   respondent-claimants   has

supported the impugned judgment by submitting that though the burden was

on the appellant to prove that the driver of the offending vehicle was not

having valid and effective license, no evidence was led to that effect.

Secondly, he submitted that the amount of compensation awarded by the

Tribunal, as regards financial dependency is not fair. Moreover, the Tribunal

has not awarded any compensation towards additional heads of love and

affection, loss of estate and funeral charges and that amount also needs to be

added to the compensation awarded by the Tribunal.

9] On these rival submissions advanced by learned counsel for both

the parties, the first and foremost issue which arises for my consideration is

whether the order passed by the Tribunal holding the appellant-Insurance

Company jointly and severally liable to pay the amount of compensation to

the respondent needs to be interfered with? It also needs to be considered

whether the amount of compensation awarded by the Tribunal calls for any

interference ?

10] As regards the first point for consideration, it is true that in

paragraph 5 of its written statement, the appellant has clearly raised a plea

that the driver of the truck was not holding a valid driving license and hence

there was breach of terms and conditions of the policy, hence appellant

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cannot be held liable to indemnify the owner. It is also true that the

Tribunal has not framed any issue to that effect nor discussed this aspect in

its entire judgment. However, as rightly submitted by the learned counsel for

the respondent, the burden to prove that the driver was not having the valid

and effective license was on the appellant and if the Tribunal has not framed

an issue to that effect, at least appellant should have done this exercise of

bringing that fact to the notice of the Tribunal and also lead evidence to that

effect. However there is not a single suggestion in cross examination of any

of the witness to show that this plea was taken forward by the appellant

Insurance Company. In such situation, if the appellant has not pursued the

plea which is taken in written statement to it logical conclusion, on that

count, no interference is warranted in the judgment of the Tribunal,

especially sans any evidence to prove that the driver was not having valid

and effective license.

11] About the income of the deceased, it is deposed by witness No.1

Rajkumari Pandey, the mother of the deceased that he was running the

business of travels in the name and style of Gayatri Travels. He was earning

Rs.20,000/- per month. He was paying amount of Rs.13,000/- per month to

the financer. No doubt, in her cross examination she has stated that four

mini buses were in their name and her deceased son alone was looking after

the said business. However, she has also admitted that her deceased son

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was not paying income-tax and she has not filed any documents to show that

her deceased son was earning Rs.20,000/- per month. She has also not

produced any documentary proof to show that they were having four travel

buses.

12] Moreover, she has examined one witness by name Deepak Dixit to

prove the business and income of the deceased, and according to his

evidence, deceased owned four buses for the purposes of business of travels.

Certificate Exhibit-34 is proved by this witness. However, as rightly held by

the Tribunal, that though though his evidence proves the fact that deceased

was doing such business of travels, his evidence could not prove that the

deceased was earning Rs.20,000/- per month from the said business. Hence

after having regard to this evidence on record, in my considered opinion, the

Tribunal has rightly held that taking into consideration the nature of such

family business, it can safely be accepted that deceased was earning

Rs.5000/- per month.

13] The Tribunal has then deducted 1/3rd of the said amount towards

his personal expenses. However considering that the deceased was

unmarried, 50% of the said amount is required to be deducted towards his

personal expenses. Similarly, the Tribunal applied the multiplier of 15,

taking into consideration the age of the deceased as 30 years at the time of

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accident. However having regard to the fact that deceased was unmarried,

for determination of appropriate multiplier, the age of his parents needs to

be taken into consideration as the same is on higher side. At the time of

filing petition, the age of respondent No.1- mother was 50 years, whereas

the age of the father was 56 years. Therefore taking their average age as

between 52-56, the appropriate multiplier would be '10'. Accordingly the

financial loss or dependency would be 2500 x 12 x 10 = 3,00,000/-.

14] The Tribunal has however not awarded any amount towards

additional heads of loss of love and affection, loss of estate and funeral

expenses. Taking into consideration the recent judgment of Apex Court in

case of Rajesh vs Rajbir Singh (2013) 9 SCC 54, it has to be held that

respondent Nos.1 and 2 parents of the deceased are entitled to pay

compensation of Rs.1,00,000/- each and Rs.75,000/- to respondent No.2

sister for loss of love and affection and loss of estate and Rs.25,000/-

towards funeral charges. Thus, total amount comes to Rs.6,00,000/-. As

the appellant has deposited the entire amount in the Court in the year 2006

itself and it is also withdrawn by the respondents/claimants, now nothing

remains due to the respondents.

As a result, appeal stands dismissed with no order as to costs.

JUDGE Asmita