The New India Assurance Co. Ltd vs Aruna Ajaykumar Ambhore & 5 Ors
2017 Latest Caselaw 3280 Bom

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

                             FIRST APPEAL NO.67 OF 2008


The New India Assurance Co. Ltd. 
Regional Office at Akola.                                 .... Appellant. 

-vs-

1.  Aruna w/p Ajaykumar Ambhore
     Adult, aged about 27 years, 

2.  Vipashana Ajaykumar Ambhore
      aged about 5 years. 

3.  Pranali Ajaykumar Ambhore,
     aged about 2 years 5 months. 

4.  Avadhut Motiram Ambhore,
     Adult, aged about 60 years, 

5.  Dyantabai Awadhut Ambhore,
     aged about 57 years, 

    Respondent Nos.2 and 3 minors, Through 
    their natural guardian mother respondent No.1 
    Aruna Ajay Ambhore, all residents of 
    Panchsheel Nagar, Wahsim Road, 
    Bye-pass Akola, Tah. And Dist. Akola. 

6.  Shashikant Narayan Patil,
     Adult, Occ. Owner, resident of Umari Naka, 
     Vithal File, Akola, Tah. And Dist. Akola             .... Respondents.  


Shri A. H. Patil, Advocate for appellant. 
Shri B. Vora, Advocate for respondent Nos.1 to 5. 




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

DATE : JUNE 16, 2017

Oral Judgment :

In MACP No.43 of 2005 appellant was held jointly and severally

liable to pay compensation of Rs.2,84,000/- to the respondents-claimants, by

judgment and order dated 03/09/2007, passed by Motor Accident Claims

Tribunal, Akola. Hence being aggrieved, this appeal is preferred by the

appellant.

2. Facts which are relevant to decide this appeal are as follows :

It is undisputed that on 12/12/2004 while deceased Ajaykumar

was driving Taxi No.MH-30-E-9340 from Deolgaon to Akola, near Patur bus

depot, he lost control of the taxi and it dashed on the tree near roadside. As

a result of said accident, he sustained injuries and succumbed to death. His

legal heirs respondent Nos.1 to 5 hence filed claim petition before the

Tribunal under Section 163-A of the Motor Vehicles Act.

3. Learned counsel for the appellant-Insurance Company contended

that as the accident has occurred due to rash and negligent driving of the

deceased himself, the petition for compensation under Section 163-A of the

said Act is not maintainable at all. Secondly, it is submitted that there was

breach of terms and conditions of the Insurance Policy hence the appellant-

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Insurance Company is not liable to pay any amount of compensation.

4. Before the Tribunal, on behalf of respondents, respondent No.1

entered into witness-box. She admitted that she was not an eye-witness to

the accident. The Tribunal therefore rightly placed reliance on copy of FIR

Exhibit-33 and spot panchanama Exhibit-34. The FIR was lodged by Ram

Yadav who was travelling as passenger in the taxi of the deceased at the

relevant time. He has clearly stated in FIR that accident has occurred due to

rash and negligent driving of the deceased as when the taxi came near Patur

Tahsil Office, deceased was dozing and as a result taxi dashed on the tree.

The spot panchanama also supports the averments made in the FIR.

Therefore in the instant case, it is more than clear that deceased himself was

responsible for the accident that has taken place. In such situation, the only

question arising for consideration is whether the application filed under

Section 163-A of the Motor Vehicles Act for compensation can be

maintainable or not ?

5. The legal position is clear on this issue, as held by Karnataka

High Court in case of Appaji and anr. vs. M. Krishna and anr. 2005(1)

TAC 994 (Kant) relying upon the decision of Hon'ble Supreme Court in

Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, 2001 ACJ 827. In

both these authorities, it is categorically held that in a case of accident

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where the person or the insured is himself responsible for the accident, no

liability would arise against the insured nor can any such liability would be

enforced under Section 163-A of the Act. It was further held that for a

liability under Section 163-A of the Act to rise against the Insurance

Company it is essential that such liability must first arise against the insured

and the Insurance Company under Section 147 of the Motor Vehicles Act. It

was further held in categorical terms that, " one who is the victim of his own

actions of rash and negligent driving cannot invoke Section 163-A for making

a claim."

6. In the light of this legal position laid down and well crystalised, it

follows that in this case as deceased himself was responsible for the accident,

that has occurred and which has resulted into his death, application under

Section 163-A of Motor Vehicles Act cannot be maintainable.

7. However as rightly submitted by learned counsel for appellant,

this petition filed before the Tribunal under Section 163-A of the Act can be

converted into application under Workman's Compensation Act and the legal

heirs of deceased can thus become entitled to some amount of compensation.

It is pointed out that the Tribunal has considered income of deceased @

Rs.3000/- per month towards salary and Rs.100/- towards daily allowances.

Tribunal has deducted 1/3rd of the said amount towards his personal

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expenses and Rs.2000/- was considered to be the loss of dependency.

Applying the multiplier of 16, compensation of Rs.3,84,000/- was awarded.

8. Here in the instant case multiplier method for computing the

compensation cannot be applied. However, as per structure formula given

in Schedule-IV under Section 4 of the Workman's Compensation Act,

considering the age of the deceased which was about 28 years, having

regard to his birth-date mentioned in the driving license, he becomes entitled

to the compensation at the rate of 211 ' 79 and therefore the total amount of

compensation to which respondent Nos.1 to 5 become entitle comes to

Rs.3,17,685/-. Under the said Act, respondent Nos.1 to 5-claimants are also

entitled to Rs.5000/- towards funeral expenses and hence the total amount

of compensation to which respondent Nos.1 to 5 become entitled under

provisions of Workman's Compensation Act comes to Rs.3,22,685/-. To that

extent, the interference and modification is warranted in the impugned

judgment and order of the Tribunal.

9. As a result, appeal is allowed.

Impugned judgment and order of the Tribunal passed under

Section 163-A of Motor Vehicles Act is set aside.

The said petition is converted to the petition under Workman's

Compensation Act and it is held that respondent Nos.1 to 5 are entitled to

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the compensation of Rs.3,22,685/- from the appellant-Insurance Company

and respondent No.2 with interest @8% per annum from the date of filing of

the petition till realization of the entire amount.

Learned counsel for appellant submits that 50% of the

compensation as awarded by the Tribunal is already deposited in the Court

and the balance amount, as per order passed by this Court would be

deposited within period of three months from today. Statement accepted.

Respondent Nos.1 to 5 are held entitled to withdraw the amount

of compensation already deposited and also the amount of compensation

which would be deposited.

Appeal is allowed in above terms.

JUDGE

Asmita