Bombay High Court
Basirabi Wd/O Ajmalkhan & Ors vs The United India Insurance Co. ... on 24 July, 2017
Bench: Dr. Shalini Phansalkar-Joshi
2407 FA 228/2006 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 228/2006
1] Basirabi wd/o Ajmal Khan,
Aged about 35 years, Occu: nil,
2] Humera Sydika d/o Ajmal Khan,
Aged about 11 years, minor,
3] Fur Khan Mujahid Khan s/o Ajmal Khan,
Aged about 8 years, minor,
4] Hamidabi w/o Ahmed Khan,
Aged about 53 years, Occu: nil,
Nos.2 & 3 are minors - represented through
their legal & natural guardian mother
Smt. Basirabi wd/o Ajmal Khan,
All R/o. Chhoti Burak, Akot,
Tq. Akot, Distt. Akola. APPELLANTS
.....VERSUS.....
1] The United India Insurance Co. Ltd.,
through its Divisional Manager, Akola,
Rajasthan Bldg., 1st Floor, Old Cotton
Market, Akola, Insurer of the Truck no.
MP-07-G-0724, Tata Truck.
2] Mr. Kashmirilal Lamba,
adult, owner of the Truck.
R/o. 6, Lalitpur Colony,
Gwalior M.P., C/o. Fakru Shaikh
Shakrati Transport Nagar,
Bhadapur, Gwalior.
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2407 FA 228/2006 2 Judgment
3] Ahmedkhan s/o Mohd. Khan,
Aged about 61 years, owner of the
Truck no. MH-30-A-9237,
R/o. Chhoti Barak, Akot,
Tq. Akot, Distt. Akola.
4] The New India Assurance Co. Ltd.,
through its Divisional Manager,
Rayat Haveli, Old Cotton Market,
Akola, Tq. & Distt. Akola. RESPONDE NTS
Shri C.A. Joshi, counsel for appellants.
Shri M.R. Kalar, counsel for respondent no.1.
None present for respondent nos.2 to 4.
CORAM : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.
DATE : JULY 24, 2017.
ORAL JUDGMENT :
This appeal is preferred by the claimants, being not
satisfied with the amount of compensation awarded by Member,
Motor Accident Claims Tribunal, Akot, in Claim Petition No.
65/2005 by its impugned judgment and order dated 09/12/2005.
2] Brief facts of the appeal can be stated as follows:
Appellant no.1 is the widow, appellant nos.2 and 3 are
the minor children, whereas appellant no.4 is the mother of the
2407 FA 228/2006 3 Judgment
deceased Ajmal Khan. Respondent no.3 is the father of the
deceased. As per the case of the appellants, deceased was having his
own Truck bearing no. MHV-7907, which was used for transporting
goods from Akot to nearby villages and from that business he was
earning income of Rs.500/- to Rs.600/- per day. Moreover, the
deceased was also driving the Truck bearing no. MH-30-A-9237,
which was owned by his father, respondent no.3 herein.
3] On the date of accident, on 27/07/2003, while the
deceased was driving the Truck bearing no. MH-30-A-9237,
belonging to his father, respondent no.3, on Mumbai - Agra
Highway and proceeding towards Akola along with his father,
respondent no.3 herein, in a moderate speed and on proper side of
the road, at about 10:14 a.m. near village Argaon, Truck bearing
no. MP-07-G-0724, came from opposite direction in a rash and
negligent manner. The driver's side front tyre of the said Truck, all
of a sudden got burst. As a result, said Truck came on the wrong
side of the road and gave dash to the Truck driven by the deceased.
As a result of the said accident, the deceased died on the spot. The
F.I.R. came to be lodged about this accident at Sahapur Police
2407 FA 228/2006 4 Judgment
Station against the driver of the offending Truck bearing no. MP-07-
G-0724. The said Truck was owned by the respondent no.2 and
insured with respondent no.1.
4] As per the case of the appellants, on account of death
of the deceased, they lost their only source of support and income
and hence they claimed compensation of Rs.20,00,000/-, however
restricted their claim for the amount of Rs.10,00,000/-.
5] This petition came to be resisted by respondent no.1
contending inter alia that the cause of the accident was the rash and
negligent driving of the deceased himself. He came on the wrong
side of the road and as a result of it, the accident took place. It was
contended that, due to the severe dash given by the Truck of the
deceased to the Truck of respondent no.2, its tyre was burst and
hence Truck was damaged, resulting into the death of the driver of
the said Truck also. Thus it was submitted that, there was no
negligence on the part of the driver of the said Truck, and hence
claim petition for compensation filed by the legal heirs of the
deceased, who was the tort-feasor, cannot be maintainable.
2407 FA 228/2006 5 Judgment
6] Secondly, it was submitted that the amount of
compensation claimed by the appellants was excessive and
exorbitant. It was denied that the deceased was working as driver
on the Truck of his father and he was earning Rs.500/- to Rs.600/-
per day from his own Truck and it was also denied that his income
can be more than Rs.10,000/- per month, as claimed by the
appellants.
7] Respondent no.3, the father of the deceased filed his
reply to the petition contending that it was the Truck owned by the
respondent no.2, which was driven in a rash and negligent manner.
He was an eye witness to the said accident, and hence according to
him, the amount claimed by the appellants was just and reasonable.
Moreover, said Truck was also insured with respondent no.1, and
hence it is the liability of respondent no.1 to compensate the
appellants.
8] On these respective pleadings of the parties, the
Tribunal framed necessary issues at Exh.29, for its consideration. In
support of their case, appellant no.1 examined herself and also led
the evidence of witness, by name, Ramesh Mahadeorao Guhe, the
2407 FA 228/2006 6 Judgment
owner of Vishal Transport, to show that the deceased was earning
Rs.500/- to Rs.600/- per day from his own Truck bearing no. MHV-
7907. Respondent no.3 also examined himself to prove the
insurance policy and also to prove that the cause of the accident
was the rash and negligent driving of the Truck owned by
respondent no.2 and not of the deceased.
9] On appreciation of this evidence, the Tribunal, on the
basis of the spot panchnama (Exh.31), was pleased to hold that it
was a case of contributory negligence as the vehicle of the deceased
was found on wrong side of the road. Accordingly, the Tribunal
attributed 40% of the negligence to the deceased. The Tribunal,
further held the income of the deceased from both the sources as
Rs.5,000/- per month and then applied the multiplier of "17" and
came to the finding that the total amount of compensation comes to
Rs.6,80,000/-. However deducting there from, 40% of the amount,
which was towards the contributory negligence of the deceased,
awarded the compensation of Rs.4,27,000/- to the appellants,
inclusive of NFL amount of Rs.50,000/-.
10] While challenging this judgment and order of the
2407 FA 228/2006 7 Judgment
Tribunal, submission of learned counsel for appellants is that the
Tribunal has not properly considered the evidence on record,
especially the fact that, the tyre of the Truck owned by respondent
no.2 was burst and that was the cause of the accident. It is urged
that, even the F.I.R. is also lodged against the said Truck driver and
that was sufficient to hold that the sole cause of the accident was
rash and negligent driving of the Truck owned by respondent no.2.
It is submitted that respondent no.3, who was an eye witness to the
accident, has examined himself, however he is not cross-examined
by any of the other respondents. Thus, it is submitted that this
evidence was more than sufficient to prove that the sole cause of
the accident was the rash and negligent driving of the Truck owned
by respondent no.2, and hence the deceased cannot be in any way
considered liable for contributory negligence.
11] As regards the amount of compensation, by placing
reliance on various judgments of the Hon'ble Apex Court, learned
counsel for appellants has submitted that the amount awarded by
the Tribunal is quite inadequate and meager. Hence it is required to
be enhanced.
2407 FA 228/2006 8 Judgment
12] Per contra, submission of learned counsel for
respondent no.1 - insurance company is that, the Tribunal has
properly assessed the evidence on record, as to ascertain the cause
of the accident. The spot panchnama clearly goes to show that the
vehicle of the deceased had come on the wrong side of the road and
in the said accident as the drivers of both the vehicles have
succumbed to injuries, then it has to be held that the cause of the
accident was the contributory negligence on the part of both the
drivers. According to learned counsel for respondent no.1,
therefore, no interference is warranted in the impugned finding of
the Tribunal on that aspect. As regards the quantum of
compensation, he submitted that in the absence of any documentary
evidence produced on record showing the actual income of the
deceased, the Tribunal has rightly considered his income as
Rs.5,000/- per month and assessed the amount of compensation.
The amount awarded by the Tribunal is also fair and reasonable.
Hence, on this issue also, according to learned counsel for
respondent no.1, no interference is warranted in the impugned
judgment and order of the Tribunal.
13] In view of these rival submissions advanced before me
2407 FA 228/2006 9 Judgment
by learned counsel for both the parties, the first and foremost issue
necessarily arising for my consideration is, whether the cause of the
accident was the rash and negligent driving of the Truck owned by
respondent no.2 or whether deceased also needs to be held
responsible for contributory negligence?
14] In this case, appellants have examined an eye witness
to the accident who is the father of the deceased. He was traveling
along with the deceased in the said Truck at the time of accident.
His evidence shows that the deceased was driving the Truck on the
proper side of the road and in a slow speed, however the Truck
owned by respondent no.2, came from opposite direction in a fast
speed, its driver's side front tyre was burst and therefore he was
unable to control the said Truck and as a result, the said Truck gave
dash to the Truck of the deceased; on account of that the accident
occurred, in which his son succumbed to the injuries sustained in
the accident. This evidence of the father of the deceased has
remained unchallenged and unshattered on record. This witness
was not at all cross-examined by respondent no.1 or respondent
no.2.
2407 FA 228/2006 10 Judgment
15] Moreover, the evidence on record shows that the police
have, after carrying out necessary investigation in the case, filed
F.I.R. and charge sheet against the driver of the Truck owned by
respondent no.2. Learned counsel for appellants has relied upon the
certified copy of the F.I.R. (Exh.30) and along with it the statement
of Cleaner of the offending Truck, namely, Paramjeetsingh
Gurjalsingh. He has also stated before the police, immediately after
the accident that, as the front tyre of their Truck burst, the Truck
could not be controlled by the driver and hence it dashed on the
Truck of the deceased, which was coming from opposite direction. It
appears that, on the basis of this statement of the Cleaner
Paramjeetsingh, police have filed charge sheet against the driver of
the said Truck for the offence under sections 279, 337, 338 and
304-A of I.P.C.
16] Learned Tribunal has however, relying upon the spot
panchnama (Exh.31) held that as the Truck driven by the deceased
was found to be on the right side of the road, leaving its left side,
the deceased was also equally responsible for the said accident.
However, this finding of the Tribunal cannot be upheld in view of
the fact that the evidence of the only eye witness examined in this
2407 FA 228/2006 11 Judgment
case, has remained unchallenged on record; coupled with the fact
that police have, after inquiry and investigation found that the
driver of the offending Truck was responsible for the cause of the
accident. The cause of the accident clearly appears to be bursting of
front tyre of that Truck. In view of this direct evidence, which was
neither controverted nor challenged, merely on the basis of spot
panchnama, it cannot be said that the deceased himself was also
responsible for contributory negligence. As held by the Hon'ble
Apex Court in the case of Jiju Kuruvila and others -Vs-
Kunjujamma Mohan and others, (2013) 9 SUPREME COURT
CASES 166, "Mere position of the vehicles after accident, as is shown
in a scene mahazar, cannot give a substantial proof as to the rash and
negligent driving on the part of one or the other. When two vehicles
coming from opposite directions collide, the position of the vehicles
and its direction, etc. depends on a number of factors, like the speed of
vehicles, intensity of collision, reason for collision, place at which one
vehicle hit the other, etc. From the scene of the accident, one may
suggest or presume the manner in which the accident was caused, but
in the absence of any direct or corroborative evidence, no conclusion
can be drawn, as to whether there was negligence on the part of the
2407 FA 228/2006 12 Judgment
driver. In absence of such direct or corroborative evidence, the Court
cannot give any specific finding about negligence on the part of any
individual".
17] In the instant case, there is direct evidence of
respondent no.3 stating about the manner in which the accident has
taken place. It may be true that, being the father of the deceased, he
may give the evidence to support the case of the appellants, but in
that case, it was the responsibility of the respondent nos.1 and 2,
the owner and insurance company of the offending vehicle to cross-
examine him. However, no such cross-examination of respondent
no.3 is conducted. Not only that, no other evidence of an eye
witness is produced on record. In that situation, direct evidence of
an eye witness, which is also coupled with the police papers, cannot
be discarded, merely on the basis of some averment in the spot
panchnama that the Truck of the deceased was found to be on the
right side of the road. As held in the abovesaid judgment of the
Hon'ble Supreme Court, after the collision, the position of the
vehicles may change due to the impact of collision and hence from
the mere position of the vehicles after the accident, as reflected in
the spot panchnama, it would not be proper to ignore the direct
2407 FA 228/2006 13 Judgment
evidence and to hold the deceased also responsible for contributory
negligence. Therefore, to the extent of this finding of the Tribunal
holding the deceased responsible for the contributory negligence of
40%, which finding is not based on the evidence on record but
against the evidence on record, needs to be set aside.
18] This brings me to the quantum of compensation.
19] It is undisputed that at the time of accident, deceased
was of the age of 34 years. The Tribunal has applied the multiplier
of '17'. Learned counsel for the fairly submits that the multiplier
should be '16', having regard to age of the deceased.
20] Now about the income of the deceased. According to
appellant no.1, the widow, the deceased was getting Rs.5,000/- per
month as his salary from respondent no.3. Moreover, he was also
having a separate Truck bearing no. MHV-7907, which he has
attached to Vishal Transport and from that he used to earn Rs.500/-
to Rs.600/- per day. She has stated that after deducting all the
expenses of the said Truck, her husband was getting Rs.5,000/- per
month. Hence his total earning was Rs.10,000/- per month.
2407 FA 228/2006 14 Judgment
However, her cross-examination is relevant and important, because
in her cross-examination, she has categorically admitted that, she
has not produced any documentary evidence to show that her
husband was earning Rs.5,000/- per month as salary from his father
and Rs.5,000/- per month as income from his own Truck. Moreover,
she has stated that, her husband was paying the income tax. If his
income was Rs.10,000/- per month, then he was expected to pay
the income tax. However, income tax returns or the PAN Card is not
produced on record. Similarly, father of the deceased has deposed
that he was giving salary of Rs.5,000/- per month to the deceased,
however he has also not produced on record any documentary
evidence to that effect, neither accounts are produced, nor any
salary certificate is produced on record.
21] As regards the evidence of the witness Ramesh, the
owner of Vishal Transport, he has admitted in his cross-examination
that some times for 8 to 10 days, the Truck was not taken for
transport services. Moreover, though he has also stated that
deceased was earning Rs.500/- to Rs.600/- per day, as income from
the said Truck, his own accounts or the vouchers etc. of showing the
payment of such amount to the deceased, are not produced on
2407 FA 228/2006 15 Judgment
record. The Tribunal has also disbelieved the salary certificate on
the count that the certificate does not appear to be authenticate. He
has also not produced his account books though he has admitted
that he has maintained such account.
22] Respondent no.3, who has filed his written statement
to the claim petition, has not at all stated therein that he was paying
the salary of Rs.5,000/- per month to the deceased. Therefore, this
case about payment of salary of Rs.5,000/- per month to the
deceased by his own father, appears to be put up only at the time of
evidence before the court and that too without there being any
evidence for the same. If one considers the fact that, respondent
no.3 is the father of the deceased and deceased was engaged for
working as a driver on the Truck of his father, then evidence of
respondent no.3, as rightly observed by the Tribunal, cannot be
taken as gospel truth. In my considered opinion, having regard to
the entire material evidence on record, no fault can be found in the
impugned judgment and order of the Tribunal, holding that income
of the deceased can be considered as Rs.5,000/- per month.
23] According to learned counsel for appellants, the
2407 FA 228/2006 16 Judgment
Tribunal has not considered the future prospects of the deceased
and hence some amount needs to be awarded towards the future
prospects also. In support of his submission, he has relied upon the
decision of the Hon'ble Apex Court in the case of Vimal Kanwar
and others -Vs- Kishore Dan and others, (2013) 7 Supreme Court
Cases 476 and Neeta Kallappa Kadolkar and others -Vs-
Divisional Manager, Maharashtra State Road Transport
Corporation, Kolhapur, (2015) 3 Supreme Court Cases 590,
wherein relying upon its own judgment in the case of Santosh Devi
-Vs- National Insurance Co. Ltd., (2012) 3 SCC (Cri) 160, it was
held that, "Even in the case of private employment, the future
prospects can be taken into consideration to determine the loss of
dependency. Having regard to the age of the deceased, the same shall
be added to the annual income of the deceased to determine the just
and reasonable compensation under the heading of the loss of
dependency".
24] In the light of this law, considering the age of the
deceased in the present case, which was 34 years, 50% of his
income needs to be added towards his future prospects.
2407 FA 228/2006 17 Judgment
25] Learned counsel for appellants has also submitted that
in the instant case, the Tribunal has deducted 1/3rd amount of the
income of the deceased towards his personal expenses. By relying
upon the judgment in the case of New India Assurance Company
Limited -Vs- Gopali and others, (2012) 12 Supreme Court Cases
198, especially the observations made by the Hon'ble Apex Court in
para nos.18 and 19, it is submitted that, as the number of
dependents in this case is five, the Tribunal should have deducted
only 20% of the amount of the income of the deceased towards his
personal expenses. The observations in para nos.18 and 19 of the
judgment in the case of New India Assurance Company Limited
-Vs- Gopali and others, are as follows:
"18. Here, we are dealing with a case in which
the deceased had 8 dependents including four
sons and one daughter. The question which arises
for our consideration is: whether in 1992 a
person having an income of less than Rs.3,000/-
and a family of 9 could think of spending 1/3rd
of his income on himself. On a conservative
estimate, it is possible to say, he would have spent
at least 50% of the income on the purchase of
foodgrains, milk, etc. and for payment of water,
electricity and other bills. 25% of the income
would have been spent on the education of
children which would have included
school/college fee, cost of books, etc., 15% of the
income would have been used for meeting other
2407 FA 228/2006 18 Judgment
family necessities, like clothes, medical expenses,
etc. He would have then been left with 10% of his
income, a portion of which could be used to meet
unforeseen contingencies and on the occasion of
festivals. In this scenario, any deduction towards
personal expenses would be unrealistic. In any
case, where the family of the deceased comprised
of 5 persons or more having an income of
Rs.3,000/- to Rs.5,000/-, it is virtually
impossible for him to spend more than 1/10th of
the total income upon himself.
"19. What we have observed hereinabove may not
apply to rich people living in urban areas who
can afford to spend a substantial amount of their
income in clubs, hotels and on drinks parties. In
those cases, there may be a semblance of
justification in applying the rule of 1/3rd
deduction but it would be wholly unrealistic to
universally apply that rule in all cases."
26] Here in the case, it is submitted that having regard to
the income of the deceased which this court is considering as
Rs.3,000/- to Rs.5,000/-, having regard to his future prospects, then
only 20% of the amount should be deducted towards his personal
expenses. However, the facts of the reported authority show that
there were total 9 members in the family and in that backdrop, it
was held that, deceased could not be expending 1/3rd of his income
on himself. It may be true that in this authority, the Hon'ble Apex
Court has also considered the eventuality where the family of the
2407 FA 228/2006 19 Judgment
deceased comprised of five persons or more having an income of
Rs.3,000/- to Rs.5,000/- and held that, it is virtually impossible for
him to spend more than 1/10th of the total income upon himself.
27] Facts of the present case however disclose that it is only
the widow and her two minor children, who were depending upon
the income of the deceased. Appellant no.1 has admitted in her
cross-examination that, her in-laws were and are residing separately
and their responsibility was not on her husband. Hence the
submission that totally five members were depending on the income
of the deceased cannot be accepted. Therefore, it has to be held that
the Tribunal has rightly deducted 1/3rd amount of the income of
the deceased towards his personal expenses.
28] Learned counsel for appellant has then placed reliance
on the abovesaid judgment of the Vimal Kanwar and others -Vs-
Kishore Dan and others to submit that appellant no.1 should be
awarded Rs.1,00,000/- towards the loss of consortium and loss of
estate, plus Rs.50,000/- towards loss of love and affection. Amount
of Rs.2,00,000/- is also claimed towards loss of love and affection
for appellant nos.2 and 3 and Rs.1,00,000/- each towards loss of
2407 FA 228/2006 20 Judgment
love and affection to appellant no.4, mother and respondent no.3,
father of the deceased. The amount of Rs.25,000/- is further
claimed towards funeral expenses, in addition to the amount which
is already awarded by the Tribunal of Rs.9,000/- towards bringing
the dead body.
29] In my considered opinion, having regard to the amount
of compensation which is awarded by the Tribunal on these heads
and which is found to be meager, it is necessary to enhance the
same by awarding the amount of Rs.1,00,000/- to the appellant
no.1 towards loss of love and affection and consortium, Rs.50,000/-
each to appellant nos.2 and 3 towards their loss of love and
affection, Rs.25,000/- each to appellant no.4 and respondent no.3
towards the loss of love and affection and Rs.25,000/- towards
funeral expenses. Thus, total amount of compensation comes as
follows :
Sl. No. Heads Calculation
(i) Salary Rs.5,000/- per month
(ii) 50% of (i) above to be added as (Rs.5,000/- +
future prospects Rs.2,500/-) =
Rs.7,500/- per month
2407 FA 228/2006 21 Judgment
(iii) 1/3rd of (ii) deducted as personal Rs.7,500/- -
expenses of the deceased Rs.2,500/- =
Rs.5,000/- per month
(iv) Compensation after multiplier of (Rs.5,000/- x 12 x
'16' is applied 16) = Rs.9,60,000/-
(v) Loss of love and affection and loss Rs.1,00,000/-
of consortium to appellant no.1
(vi) Loss of love and affection to the Rs.50,000/- each i.e.
children (appellant nos.2 & 3) Rs.50,000/- x 2 =
Rs.1,00,000/-
(vii) Loss of love and affection to Rs.25,000/- each i.e.
appellant no.4 and respondent no.3 Rs.25,000/- x 2 =
Rs.50,000/-
(viii) Funeral expenses Rs.25,000/-
Total Compensation Awarded Rs.12,35,000/-
30] Learned counsel for appellants has they relying upon
the judgment in the case of Laxman Alias Laxman Mourya -Vs-
Divisional Manager, Oriental Insurance Co. Ltd. and another,
(2011) 10 SCC 756, submitted that appellant no.1 has, though
restricted her claim to Rs.10,00,000/-, she is ready to pay the
requisite court fee on the additional amount of compensation, as
awarded by this court.
31] In view thereof, appeal is allowed.
32] The impugned judgment and order of the Tribunal is
2407 FA 228/2006 22 Judgment
modified to the extent that respondent nos.1 and 2 to pay the
amount of Rs.12,35,000/-, inclusive of the amount already awarded
by the Tribunal to the appellants and respondent no.3 with interest
at the rate of 7.5% per annum, from the date of petition till its
realisation.
JUDGE
Yenurkar
