Bombay High Court
Kirti Alias Vijaya Vijaykumar ... vs The New India Assurance Co Ltd. And ... on 25 July, 2017
Bench: P.R. Bora
1 FA NO.198 OF 2006
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.198 OF 2006
The New India Assurance
Company Ltd. Through It's
Divisional Manager,
Adalat Road, Aurangabad. ...APPELLANT
VERSUS
1. Smt. Kirti @ Vijaya W/o.
Vijaykumar Giram,
Age: 27 years,
Occu.: Household,
R/o. Sangam,
Tq. Parli (Vaijnath),
Dist. Beed.
2. Chaitanya S/o. Vijaykumar
Giram,Age: 7 years,
Occu. Minor, Under Guardianship
of his real natural mother,
Smt. Kirti @ Vijaya
W/o. Vijaykumar Giram,
R/o. Sangam, Tq. Parli (Vaijnath),
Dist. Beed,
3. Vaijnathrao S/o. Ramji Giram,
Aged:64 years, Occu. Agril,
R/o. Sangam Tq. Parli (Vaijnath),
Dist. Beed,
4. Sow. Gajarabai W/o.
Vaijnathrao Giram,
Aged : 59 years,
Occu. Household,
R/o. Sangam,
Tq. Parli (Vaijnath),
Dist. Beed,
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2 FA NO.198 OF 2006
5. Sudarshan S/o. Vijaykumar Giram,
Age: 7 years, Occu. Minor,
Under Guardianship of his
real natural mother,
Smt. Kirti @ Vijaya W/o.
Vijaykumar Giram,
R/o. Sangam, Tq. Parli (Vaijanth),
Dist. Beed,
6. Mr. Kunda Swami C. Pandian,
R/o. Nehru Nagar, RXX-105/113,
Holy Cross Road,
Poinsur, Kandivali West,
Mumbai - 4000670.
...RESPONDENTS
(Resp. No. 1 to 5
Orig. Claimants &
Resp. No. 6 Org.
Resp. No.1)
-----
Mr. Mandar Deshmukh, Adv. h/f. Mr. S.G.Chapalgaonkar,
Advocate for Appellant;
Mr. S.K. Adkine, Advocate for Resp. Nos. 1,2,3 & 5.
-----
WITH
FIRST APPEAL NO.1169 OF 2014
1. Smt. Kirti alias Vijaya w/o. Vijaykumar Giram,
Age: 29 yeras, Occu.: Household,
R/o. Sangam Tq. Parli (Vaijnath)
Dist. Beed.
2. Chaitanya s/o. Vijaykumar Giram
Age: 10 years, Occu. Minor u/g. of real
natural mother Applicant No.1
Kirti w/o. Vijaykumar Giram
R/o. As above
3. Sudarshan s/o. Vijaykumar Giram,
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3 FA NO.198 OF 2006
Age:9 years, Occu.: Minor u/g. Of real natural
mother applicant No.1 Kirti w/o. Vijaykumar
Giram R/o. As above.
4. Vaijnath s/o. Ramji Giram,
Age: 65 years Occu. Agril,
R/o. Sangam Tq. Parli (Vaijnath)
Dist. Beed.
5. Gajarabai w/o. Vaijanathrao Giram,
died L.Rs. Applicant/Appellant
No.1 to 4. ...APPELLANT
(Orig.Claimant)
VERSUS
1. The New India Assurance Company Ltd.
Through its Divisional Manager,
Adalat Road, Aurangabad
(2. Mr. Kunda Swami C. Pandia,
Age: Major, Occu. Business,
R/o. Nehru Nagar, RXX-105/113
Holy Cross Road, Poimsur, Kandivali,
West, Mumbai - 400 670.)
(Respondent No.2 deleted as per
Court's order dated 23/04/2014.)
-----
Mr. S.K. Adkine, Advocate for Appellants.
-----
CORAM : P.R.BORA, J.
DATE : JULY 25th 2017
ORAL JUDGMENT:
1. Since both these appeals are arising out of one
4 FA NO.198 OF 2006
judgment, both the appeals are heard commonly and I
deem it appropriate to decide these appeals by common
reasoning.
2. In First Appeal No.198/2006, the office note
shows certain objections. It is reported that the
Insurance Company has not taken on record the legal
representatives of deceased respondent no.4. However,
as has been submitted by the learned Counsel appearing
for the original claimants, the legal representatives of
deceased respondent no.4 are already there on record.
The objection so raised, therefore, stands satisfied.
Another objection is that respondent no.6 is not yet
served. In view of the fact that the Insurance Company
has challenged the impugned judgment and award on the
count of quantum and contributory negligence, it makes no
difference whether owner is served or not. In no case,
liability is going to be shifted to the owner even if amount
of compensation is enhanced or decreased. The service
on respondent no.6 is, therefore, exempted.
3. With the consent of the learned Counsel
5 FA NO.198 OF 2006
appearing for the parties, both the appeals are taken up
for final disposal.
4. First Appeal No.198/2006 is filed by the
Insurance Company challenging the impugned judgment
and award on the point of quantum as well as alleging
contributory negligence on the part of the deceased;
whereas, First Appeal No.1169/2014 is filed by the
claimants seeking enhancement in the amount of
compensation.
5. Heard Mr. Mandar Deshmukh, learned Counsel
holding for Shri Chapalgaonkar, learned Counsel appearing
for the appellant Insurance Company. Learned Counsel
submitted that the Tribunal has erred in not appreciating
the fact that, in occurrence of the alleged accident,
negligence on the part of the deceased was equally
responsible. Learned Counsel submitted that the alleged
accident was a head on collision. Deceased was on a
motor cycle and he was coming from the opposite direction
to which the Mini Bus was proceeding. Learned Counsel
submitted that it is the settled law that in case of head on
6 FA NO.198 OF 2006
collision 100 per cent negligence, in no case, can be
attributed on the part of driver of one vehicle. The
contention so raised is strongly opposed by Shri Adkine,
learned Counsel appearing for the claimants.
6. I have carefully perused the impugned
judgment as well as the evidence and the other material
on record. On having perused the evidence on record, I
do not find any substance in the objection raised by the
appellant Insurance Company. Learned Tribunal in
paragraph no.7 of the judgment has elaborately discussed
the said issue. I deem it appropriate to reproduce
hereinbelow the observation made by the Tribunal in the
said paragraph:
"7. Deceased Vijaykumar was riding a
motorcycle towards Pune and Prachi was a pillion
rider on the said motorcycle. According to the
petitioners, minibus bearing No. MH-02-Y-5388 gave
a dash to the motorcycle because of which serious
injuries were caused to Vijaykumar and Prachi. A
panchanama of the place of incident (Exh.36) shows
the relative position of the motorcycle and minibus
on the road. The panchnama mentions that these two
vehicles were on the road at a distance of about 35
ft. from each other. The panchanama mentions that
the motorcycle was lying on the road at a distance of
about 15 ft. from the southern side border of the
7 FA NO.198 OF 2006
road, It is mentioned in the panchanama that the
width of the tar road at the relevant spot was 35 ft.
and on either side of the tar road, there was a kacha
road of 5 ft. width. If 15 ft. distance from southern
border of the road is counted, it appears that the
motorcycle was on the spot which was within the
range of 10 ft. width from southern side of the tar
road. The minibus was proceeding from Pune side
towards nagar, that means, from West to East,
whereas motorcycle driven by Vijaykumar was
proceeding by the road from east to West. The
motor-cyclist, therefore, appears to have been
driving the motorcycle by the southern side of the
road and the spot where impact took place being
within the width of 15 ft from southern border of the
said road, he appears to be driving his vehicle by
right side. On the contrary, the minibus was expected
to be driven from the northern half side of the road.
The minibus driver had no reason to come towards
southern side. But, he seems to have driven the
minibus in a reckless manner and that is why the
impact between the two vehicles could not be
avoided. The Police have drawn the panchnama of
the place of incident and recorded the statements of
eye witnesses, and on the basis of that, they have
found that the minibus driver was negligent and
because of that accident occurred. Accordingly, the
crime regarding that incident is registered against the
driver of the said minibus. Under these
circumstances, I find that the accident in question
took place because of the rashness and negligence on
the part of the minibus driver. As the respondent
No.1 is the owner of the said minibus, he becomes
vicariously liable for the rash and negligent driving of
his servant i.e. driver of said minibus. As the said
minibus was insured with respondent No.2 at the
relevant time, it cannot avoid the liability to pay the
compensation to the petitioners. It cannot be
disputed that deaths of deceased Vijaykumar as also
Prachi have occurred because of the serious wounds
that they received in the accident. The post mortem
report in respect of Vijaykumar is on record at Exh.
41. It's perusal shows that he had sustained fractures
8 FA NO.198 OF 2006
to left humerus, left lower end of shaft femur,
fracture to left ribs. The doctor who performed post
mortem on vijaykumar has mentioned that his death
took place due to shock due to multiple injuries.
From this evidence on record, it cannot be doubted
that the death of Vijaykumar took place because of
the injuries sustained by him in the accident involving
minibus bearing No. MH-02-Y-5388. I have,
therefore, no doubt in answering issue No.1 and 2 in
the affirmative. Naturally, the petitioners who are
legal representatives and dependents on deceased
Vijaykumar are entitled to get compensation for they
have lost their financial support."
7. On perusal of the discussion made by the
learned Tribunal as above, there remains no doubt that the
accident in question happened because of the sole
negligence on the part of the driver of the Mini Bus. I have
also perused the spot panchanama. From the averments
in the spot panchanama and the situation, as is revealing
from the spot panchanama, also no negligence can be
attributed on the part of the deceased. The objection
raised by the appellant-Insurance Company as about the
contributory negligence of the deceased in occurance of
the alleged accident is, therefore, liable to be rejected.
8. Another objection was raised in respect of
driving license of the driver of the Mini Bus, however, as
9 FA NO.198 OF 2006
has been observed by the Tribunal, the Insurance
Company has not discharged the burden to prove the said
fact by adducing positive evidence in that regard. I,
hence, do not see any reason to interfere with the findings
recorded by the learned Tribunal.
9. The Tribunal has awarded compensation of Rs.
10,08,000/-. As has been alleged by the Insurance
Company, the compensation awarded by the Tribunal is
un-reasonable and is on higher side, though, no supporting
evidence was adduced by the claimants. As against the
same, in the appeal filed by the original claimants it is
their contention that the Tribunal has not awarded just and
fair compensation and that the claimants were entitled to
more compensation than awarded by the Tribunal. I have
perused the discussion made by the Tribunal in this
regard. Deceased Vijay was serving in a Seeds Company,
his last drawn salary was Rs. 6,900/-. The claimants had
examined the Managing Director of Saicon Seeds Pvt. Ltd.,
Pune to prove salary income of the deceased and the same
was duly proved through the evidence of the said witness.
It had also come on record that the deceased was being
10 FA NO.198 OF 2006
paid the bonus and the incentives. Considering the said
evidence, the Tribunal has held the income of the
deceased to the tune of Rs.7,000/- per month and has
accordingly determined the compensation. In view of the
evidence on record which has been correctly analysed by
the Tribunal, I do not see any merit in the objection raised
by the Insurance Company that the compensation, as has
been awarded by the Tribunal, is on higher side or
unreasonable. Similarly, I do not see any case for
enhancement in the compensation as has been claimed by
the original claimants.
10. For the reasons stated above, both the appeals
are liable to be dismissed and are accordingly dismissed.
However, without any order as to the costs.
. Civil Application/s if any, stand disposed of.
(P.R.BORA)
JUDGE
...
AGP/198-06FA
