National Insurance Co. Ltd vs Sushila Babruwan Bedre And Ors
2017 Latest Caselaw 5092 Bom

                                     1                    FA NO.2948/2008

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                       FIRST APPEAL NO.2948 OF 2008

  National Insurance Company Limited
  Through it's Divisional Manager,
  Hazari Chambers, Station Road, 
  Aurangabad                         ...APPELLANT
                                   (Orig. Resp No.4)
       VERSUS

  1.       Sushila W/o. Babruwan Bedre,
           Age: 37 years, Occ: Household,
           R/o. Makni, Tq. Omerga,
           Dist. Osmanabad

  2.       Anjali D/o. Babruvan Bedre,
           Age: 15 years, Occu: Education,
           U/g. Of claimant No.1 real mother

  3.       Rupali D/o. Babruvan Bedre,
           Age: 14 years, Occu.: Education
           U/g. Of claimant No.1 real mother

  4.       Shriram S/o. Babruvan Bedre,
           Age: 13 years, Occu: Education,
           U/g. Of claimant No.1 real mother
                                       (Orig. Claimants 
                                        Nos. 1 to 4)
  5.       Shridhar Namdeo Pawar @ Jadhav,
           Age: Major, Occu: Driver & Agri.,
           R/o. Nandurga, Tq. Ausa,
           Dist. Latur               (Orig. Resp. No. 1)

  6.       Union Bank of India
           Through Manager,
           Branch Ahmedabad                  (Orig. Resp No.3)

           (R.No.6 deleted as per
            Court's order dated. 21.7.08)

  7.       M/s. Araveli Finance Ltd.




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                                          2                     FA NO.2948/2008

           Through Its Managing Director,

      (Shri. Chandansing Padamsing 
       Champawat
       of Ahmadabad through power 
       of attorney Vikramsing Padamsing
       Khangarot,
       Age: Major, Occu.: Business,
       R/o. Rajchambers, C-118,
       Near Kotla Stand,           (Orig. Resp. No.5)
       Ahmednagar - 414 001.)

           Shri Chandansing s/o. Padamsing
           Champawat
           R/o. Dr. Kasturba Chembers,
           2nd floor, in front of R.B.I.
           Quarters, Ashram Road, Ahmedabad

           (Amendment carried as per Hon'ble
            courts order dated 21.07.2008).
                                          ...RESPONDENTS 
                                ***
           Mr.   S.S.   Chapalgaonkar,   Advocate   for   the  
           appellant.

           Mr.   V.D.   Hon,   Senior   Counsel   for   the  
           Respondent Nos. 1 to 4;

           Mr. R.M. Malpani, Adv. h/f. Mr. A.B. Kale,  
           Advocate h/f. Respondent No.5.

                                   -----
                               CORAM :  P.R.BORA, J.

DATE :

27 th

July,2017.

ORAL JUDGMENT:

1) Heard. The present appeal is filed by

the Appellant - insurance company taking

3 FA NO.2948/2008

exception to the Judgment and Award passed by

Motor Accident Claims Tribunal, Latur

(hereinafter referred to as the Tribunal).

2) The aforesaid claim petition was filed

by present Respondent Nos.1 to 4 (hereinafter

referred to as the original claimants) claiming

compensation on account of death of one

Babruwahan Bedre, alleging the same to have been

caused in a vehicular accident happened on 18 th

March, 1998 having involvement of a motorcycle

bearing Registration No. MHX-R-106 and the jeep

bearing registration No. MH-16-C-7118.

3) It was the contention of the claimants

that when deceased Babruwahan was proceeding on

his motorcycle, it was dashed by the offending

jeep and in the accident so happened, Babruwahan

died on the spot. It was further alleged by the

claimants that the accident in question happened

because of sole negligence on part of driver of

the jeep. As stated in the claim petition, age

4 FA NO.2948/2008

of deceased Babruwahan was 33 years at the time

of his death and he was running a pesticide shop

in village Makni and was earning around Rs.

4,500/- per month from the said shop. The

claimants had, therefore, claimed compensation of

Rs. 7,00,000/- from owner and insurer of the

offending jeep involved in the accident.

4) The claim petition was resisted by the

respondents before the Tribunal mainly on two

grounds; contributory negligence of the deceased

and the income of the deceased. The Tribunal,

after having considered the oral as well as

documentary evidence on record, held the

claimants entitled for the total compensation of

Rs. 7,00,000/- and made it payable from the owner

and insurer of the offending jeep involved in the

alleged accident. Aggrieved by, the insurance

company has preferred the present appeal.

5) Shri Chapalgaonkar, learned Counsel

appearing for the appellant - insurance company,

5 FA NO.2948/2008

assailed the impugned Judgment and Award on two

grounds. The learned Counsel submitted that the

Tribunal has erred in not considering the

contention of the respondents as about the

contributory negligence of the deceased in

occurrence of the alleged accident. The learned

Counsel submitted that the situation on the spot

of occurrence clearly demonstrates that it was

head on collision accident and in such

circumstances, sole negligence could not have

been attributed on part of driver of the

offending jeep. The learned Counsel submitted

that even if it is admitted that greater

negligence was on part of the driver of the jeep,

at least some negligence must have been

attributed on part of deceased also since it was

a head on collision accident. The learned

Counsel further submitted that the Tribunal has

also erred in holding income of deceased

Babruwahan to the tune of Rs. 4,500/- when there

was no evidence in that regard. The learned

Counsel further submitted that to prove the

6 FA NO.2948/2008

income of the deceased, burden was on the

claimants and the same has not been properly

discharged by the claimants. According to the

learned Counsel, the claimants could have placed

on record some more convincing evidence as about

the income of the deceased, when it was their

case that deceased was running the pesticide

shop. The learned Counsel submitted that neither

account books, nor bank pass book nor purchase or

sale orders were produced and without any such

evidence, relying on two certificates, which were

showing that deceased was carrying out the

business of insecticides, his income has been

assessed by the Tribunal. The learned Counsel

submitted that the law is well settled that in

absence of any evidence as about the income, the

same has to be assessed on the basis of notional

income. The learned Counsel further submitted

that, at the relevant time, the notional income

used to be held to the tune of Rs.1,500/-, as

such in no case, the income of the deceased was

liable to be held @ Rs. 4,500/- per month. The

7 FA NO.2948/2008

learned Counsel, therefore, prayed for adequate

modification in the impugned Judgment and Award

on the aforesaid two grounds.

6) Shri V.D.Hon, learned Sr. Counsel

appearing for the Respondents - original

claimants, supported the impugned Judgment and

Award . Taking me through the discussion made by

the Tribunal, in paras 20 to 24 of the judgment,

the learned Counsel submitted that the evidence

as about the income has been properly analyzed by

the Tribunal and the ultimate conclusion recorded

by the Tribunal as about the income of deceased

Babruwahan is based on the evidence and does not

require any interference. The learned Sr.

Counsel further submitted that deceased

Babruwahan was holding an agency of a reputed

company and two such certificates are on record.

The learned Counsel further submitted that the

Agriculture Officer has certified that deceased

Babruwahan was a license holder for sale of seeds

and insecticides in village Makni. The learned

8 FA NO.2948/2008

Counsel submitted that the Tribunal has not

committed any error in holding the income of the

deceased to the tune of Rs. 4,500/- per month and

accordingly assessed the amount of compensation

based on the said income.

7) The learned Counsel further submitted

that the Tribunal has rightly held the jeep

driver to be solely negligent in occurrence of

the alleged accident. Taking me through the

situation on the spot of occurrence of the

alleged accident, as is revealing from the spot

panchanama, the learned Counsel submitted that no

blame could have been attributed on part of the

deceased. The learned Counsel submitted that

from the situation on the spot, no such inference

can be drawn that it was a head on collision

accident. The learned Counsel further submitted

that the situation on the spot after the accident

reveals that the deceased was on his correct side

leading to the inference that the accident did

not occur because of any fault on his part. The

9 FA NO.2948/2008

learned Counsel submitted that the Tribunal has

recorded a correct finding about the negligence

and the same need not warrant any interference.

8) I have considered the submissions

advanced by learned Counsel appearing for the

respective parties. I have perused the impugned

judgment, the evidence on record and the other

material placed on record. Firstly, I would deal

with the aspect of negligence. On perusal of the

spot panchanama, it is difficult to accept the

contention of the learned Counsel appearing for

the appellant that it was a head on collision

accident. I agree with the submission made by

the learned Sr. Counsel that from the situation

of the vehicles on the spot of occurrence, the

inference which emerges only leads to the

negligence on part of the driver of the offending

jeep. Admittedly, the police has also prosecuted

only the driver of the jeep for the occurrence of

the alleged accident. I, therefore, do not see

any reason to take any contrary view. The

10 FA NO.2948/2008

Tribunal has rightly held the driver of the jeep

solely responsible for occurrence of the alleged

accident.

9) In so far as income of the deceased is

concerned, the Tribunal, in para 24 of its

judgment, has observed that, from the material

placed on record, it has reached to the

conclusion about the income of the deceased. The

discussion made by the Tribunal demonstrates that

the Tribunal has considered the certificates on

record and also the situation of village Makni

and has arrived at the conclusion that deceased

Babruwahan may be earning around Rs.4,500/-.

Though there was no concrete documentary evidence

in the form of accounts, so as to determine the

monthly or annual income of the deceased, it

appears to me that, on the basis of the evidence,

the tribunal has assessed the income of the

deceased, which according to me, cannot be said

to be arbitrarily determined or cannot be said to

be without any evidence. Once the Tribunal has

11 FA NO.2948/2008

taken some view and which is a possible view

about the income of the deceased, I see no reason

to cause interference in the conclusion so

recorded by the Tribunal. The appeal, therefore,

fails and is accordingly dismissed, however,

without any order as to costs. Pending civil

application, if any, stands disposed of.

10) While admitting the present appeal, the

appellant insurance company was directed to

deposit 50% of the amount as awarded by the

Tribunal and the record reveals that same was

permitted to be withdrawn by the claimants.

Considering the fact that the alleged accident

had happened in the year 1998, the insurance

company is directed to deposit the remaining

amount of compensation with interest accrued

thereon, in the Executing Court within four

months from the date of this order.

(P.R.BORA) JUDGE

bdv/