National Insurance Co. Ltd, ... vs Namdeo Kundlik Gardade And Anr
2017 Latest Caselaw 4809 Bom

                                     1                   FA No.2876/2008

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                       FIRST APPEAL NO.2876 OF 2008

  National Insurance Co. Ltd., 
  Having it's Registered Office 
  at 3, Middleton Street, 
  Kolkata, through the Sholapur
  Divisional Office, NOW 
  through the Aurangabad 
  Divisional Office at Hazari
  Chambers, Station Road, 
  Aurangabad                                  =   APPELLANT
                                            ( orig. Resp.No.3)

           VERSUS

  1.       Namdeo s/o. Kundlik Gardade,
           Age : 50 years, Occu. Agriculture
           R/o. Village Mugaon, Tq. Paranda
           Dist. Osmanabad

  2.       Kaushalya w/o Namdeo Gardade,
           Age: 45 years, Occu. Household,
           R/o. Mugaon, Tq. Paranda,
           Dist. Osmanabad               =    RESPONDENTS 
                                         (Orig. Claimants 
                                          No. 1 & 2)
  3.       P. Selvan s/o. Palaniswany,
           Age: Adult, Occu. Truck-Owner
           R/o. 2-37, Marappanaic
           Bommampaty, P.O. Namakkal
           (Tamilnadu State)             =    Respondent
                                         (Orig. Resp. No.1)

  4.       Kiran s/o. Babanrao Jagtap,
           Age: Adult, Occu. Car-Owner
           R/o. Flat No.3, C-Wing, Kalagram
           Society, Bhusari Colony,
           Phad Road, Pune - 411 038.   =    RESPONDENT
                                        (Orig. Resp. No.2)

  5.       Royal Sundram Alliance Insurance
           Co. Ltd., 1st floor, Rachna Trade
           Estate, SNDT Crossing, Plot No.64,




::: Uploaded on - 26/07/2017               ::: Downloaded on - 08/08/2017 00:45:10 :::
                                          2                     FA No.2876/2008

           Law College Road, Pune - 411004
                                        =    RESPONDENT 
                                         (Orig. Resp. No.4)


                          -----
  Mr. R.C. Bora, Adv. h/f. Mr. P.P. Bafna, Advocate for 
  Appellant;

  Mr.P.S. Chavan, Advocate for Respondent Nos. 1 and 2.

  Mr. A.S. Deshpande, Advocate for Respondent No.5.
                          -----

                               CORAM :  P.R.BORA, J.

DATE :

20 th

July,2017.

ORAL JUDGMENT:

1) Heard. The appellant - insurance

company has filed the present appeal taking

exception to the Judgment and Award passed in

MACP No.163/2004 decided by the Motor Accident

Claims Tribunal, at Osmanabad (hereinafter

referred to as the Tribunal).

2) The aforesaid claim petition was filed

by present Respondent Nos.1 and 2 (hereinafter

referred to as claimants) seeking compensation on

account of death of their son viz. Navnath Namdeo

Gardade, alleging to have caused in a vehicular

accident happened on 4th April, 2004 having

involvement of a truck bearing Registration

No.TN-28/B/0973.

3) Deceased Navnath was travelling, at the

relevant time, in an Indica Car bearing

registration No. MH-12-BP-8153. It was the

contention of the claimants that the truck

involved in the accident was being driven rashly

and in negligent manner and it gave dash to the

Indica car and in the accident so occurred,

Navnath died on the spot itself. The claimants

had, therefore, claimed compensation of

Rs.6,00,000/- from owner and insurer of the truck

as well as owner and insurer of the Indica car.

4) The learned Tribunal, after having

assessed the evidence on record, recorded a

finding that the alleged accident happened only

because of the negligence on the part of driver

of the truck. The learned Tribunal, considering

the evidence, as was produced by the claimants,

held the claimants entitled for the total

compensation of Rs.4,80,500/- inclusive of NFL

compensation jointly and severally from the owner

and insurer of the truck. Aggrieved by, the

appellant - insurance company has filed the

present appeal.

5) Shri Bora, learned counsel holding for

Shri P.P.Bafna, learned Counsel appearing for the

appellant insurance company, assailed the

impugned Judgment and Award on various grounds.

The learned Counsel submitted that though it was

a clear case of composite negligence, the

Tribunal has wrongly held the accident to have

caused because of the sole negligence of driver

of the truck. The learned counsel further

submitted that the accident happened on National

Highway No.9, which is wide enough, from where at

a time, four vehicles can pass easily. The

learned counsel submitted that the alleged

accident was a case of head on collision and in

such circumstances, the sole negligence could

not have been attributed on the part of the

driver of the truck.

. The learned counsel submitted that the

Tribunal has overlooked the evidence on record.

The learned Counsel, relying upon the judgment of

the Hon'ble Apex court in the case of Bijoy Kumar

Dugar Vs. Bidya Dhar Dutta and Ors -(2006) 3 SCC

242, submitted that in view of the observations

made and the law laid down in the aforesaid

judgment, the finding recorded by the Tribunal in

the present matter, holding the driver of the

truck alone responsible for causing the alleged

accident, deserves to be quashed and set aside

and the driver of the Indica car also needs to be

held responsible in equal proportion in

occurrence of the alleged accident.

6) In so far as quantum is concerned,

learned Counsel for the appellant submitted that

though there was no evidence on record, the

Tribunal has wrongly held the income of the

deceased to the tune of Rs.3,500/- per month.

The learned counsel submitted that it was the

case of the claimants that the deceased was

running an STD booth and the evidence which was

produced on record was summary of the bills of

only 15 days and the same could not have been

sufficient evidence so as to decide the income of

the deceased. In the circumstances, according to

the learned Counsel, the Tribunal could not have

held the income of the deceased more than the

notional income. The learned counsel submitted

that the Tribunal has also erred in deducting

only 1/3rd of the amount towards avocations of the

deceased. The learned Counsel submitted that

since the deceased was bachelor and the parents

were the only dependents on his income, while

determining the amount of compensation, 1/2 of

the amount would have been deducted by the

Tribunal towards the personal expenses of the

deceased and the dependency compensation must

have been assessed on remaining 1/2 of the total

income of the deceased. The learned counsel

submitted that the award, therefore, needs to be

modified also in so far as quantum of the

compensation is concerned. The learned counsel,

therefore, prayed for appropriate orders for

modification of the award.

7) Shri Chavan, learned counsel appearing

for the respondents, i.e. original claimants

supported the impugned Judgment and Award. The

learned counsel invited my attention to the

discussion made by the Tribunal to the effect

that spot panchanama in the matter clearly

reveals that the truck driver entered on a wrong

side and gave dash to the Indica car. The learned

counsel submitted that in such circumstances, no

fault can be found in the conclusions recorded by

the learned Tribunal holding the truck driver

alone responsible for occurrence of the alleged

accident. The learned counsel submitted that no

evidence was adduced by the appellant insurance

company to substantiate the defences raised by it

as about the negligence or as about the dispute

raised by the insurance company regarding income

of the deceased. The learned Counsel submitted

that no interference is, therefore, required in

the finding recorded by the Tribunal as about the

aspect of negligence.

8) In so far as amount of compensation

determined by the Tribunal is concerned, the

learned Counsel submitted that the Tribunal has,

on the contrary, awarded less compensation than

expected by the claimants. The learned Counsel

submitted that the Tribunal has, in fact, not

awarded just and fair compensation towards non-

pecuniary damages and as such, no interference is

required in the amount of compensation determined

by the tribunal.

9) I have carefully considered the

submissions advanced by learned Counsel appearing

for the parties. I have perused the impugned

judgment and other material placed on record.

Though it was vehemently argued by learned

Counsel appearing for the appellant insurance

company that, it was the case of head on

collision, nothing has been brought to my notice

so as to agree with the submission made by the

insurance company that the alleged accident was

head on collision. On the contrary, as has been

observed by the Tribunal in Para 7 of its

judgment, the document on record, and more

particularly the situation on the spot was

revealing that the truck had entered on a wrong

side and gave dash to the Indica car. If this

may be the situation, it does not appear to me

that the Tribunal has committed any error in

holding the driver of the truck solely

responsible for causing the alleged accident.

Moreover, if it was the specific defence of the

appellant insurance company that the driver of

the Indica car was also negligent in causing the

alleged accident, some positive evidence must

have been adduced by it to substantiate the said

contention. Admittedly, no such evidence has

been adduced by the appellant insurance company.

The judgment, which has been relied upon by

leaned counsel appearing for the appellant, is

altogether on different facts and hence cannot be

made applicable in the facts of the present case.

I, therefore, do not see any reason to cause

interference in the finding recorded by the

Tribunal on the aspect of negligence.

10) The next point, which falls for my

consideration, is quantum of compensation as

determined by the Tribunal. As has been argued

by learned counsel appearing for the appellant

insurance company, the tribunal has erred in

holding the income of the deceased to the tune of

Rs.3,500/- per month without any evidence there

for. The submission so made, however, cannot be

accepted in view of the findings recorded by the

tribunal and the evidence on record. It has not

been disputed that the deceased was running STD

booth. Some evidence was also placed by the

claimants evidencing that the deceased was

running the STD booth. BSNL bills were produced

on record, though the said bills may be of 15

days. It does not appear to me that the Tribunal

has committed any error in assessing the income

of the deceased on the basis of turnover of 15

days of said STD booth. At the relevant time,

age of the deceased was 24 years. Apparently, it

does not appear to me that the Tribunal has

wrongly held the income of the deceased to the

tune of Rs.3,500/- and that it should have been

held Rs.3,000/- by applying the criterion of

notional income.

. The another objection though bears some

substance that the Tribunal must have deducted

1/2 of the total income of the deceased while

assessing the amount of dependency compensation,

having regard to the other facts on record, that

the tribunal has committed error in applying the

multiplier of 17 and has also erred in not

awarding just and fair compensation towards the

non-pecuniary damages, no interference is

warranted in the amount of compensation

determined by the Tribunal. After having

considered the entire evidence on record

unhesitatingly it can be said that the amount of

compensation determined by the Tribunal is just

and fair.

11) For the reasons stated above I do not

see any reason to cause interference in the

impugned Judgment and Award. The appeal being

devoid of any substance, deserves to be dismissed

and is accordingly dismissed. Pending civil

application, if any, stands disposed of.

(P.R.BORA) JUDGE

bdv/