New India Assurance Co. Ltd. Thru. ... vs Kalpana @ Radhika Wd/O Ashwin ...
2017 Latest Caselaw 3328 Bom

1906 FA  8/2008                               1                        Judgment


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



                          FIRST APPEAL NO. 8/2008 




New India Insurance Company Ltd.,
Ganesh Chambers, Laxmi Nagar Square,
Nagpur, through its Regional Manager,
Regional Office (160000), Dr. Ambedkar 
Bhawan, 4th Floor, M.E.C.L. Premises, 
High Land Drive Road, Seminary Hills, 
Nagpur - 6.                                             APPELLANT


                                .....VERSUS.....


1]     Kalpana @ Radhika wd/o Ashwin Shende,
       Aged about 26 years, Occu: Household,

2]     Aboli D/o Ashwin Shende,
       Aged 6 years, Minor represented through
       Her natural guardian mother i.e. 
       respondent no.1.

3]     Shaila Wd/o Jeevan Shende,
       Aged about 50 years, Occu: Household,

       All R/o. Plot No.26, C/o. V.K. Dikshit,
       Sadhana Apartments, Mahalaxmi Nagar,
       Hudkeshwar, Nagpur.

4]     Liladhar Haribhau Dhanore,
       Aged Major, Occu: Business,
       R/o. At & Post Mansar, Tah. Ramtek,
       District - Nagpur.                                RESPONDE NTS
                                                                     



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 1906 FA  8/2008                               2                        Judgment




Shri S.S. Sanyal, counsel for the appellant.
Shri P.G. Anandikar, counsel for the respondent nos.1 to 3.
Shri M.R. Dawda, counsel for respondent no.4.


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

                 DATE     : JUNE 19, 2017.



ORAL JUDGMENT :

In Claim Petition No.487/2003, Motor Accident Claims

Tribunal, Nagpur held the appellant-insurance company liable,

along with the owner of the offending vehicle, to pay the

compensation of Rs.5,16,264/- to the respondents-claimants, jointly

and severally with further interest at the rate of 7.5% per annum

from the date of petition till realization. Being aggrieved thereby,

appellant-insurance company, which was original respondent no.2

before the Tribunal, has preferred this appeal.

2] Brief facts of the appeal can be stated as follows:-

Respondent no.1 Kalpana is the widow and respondent

no.2 Aboli is the minor daughter and respondent no.3 Shaila is the

1906 FA 8/2008 3 Judgment

mother of deceased Ashwin. Respondent no.4 Liladhar is the owner

of the offending vehicle, the Truck, bearing no. MH-31-W-6135. The

said Truck was insured with the appellant.

3] On 31/03/2003, Ashwin was driving his Autorickshaw

bearing no. MH-31-4558 and proceeding from Ladies Club Square

towards Akashwani Square. At about 1:00 p.m. at G.P.O. Square, the

offending Truck came from Northern side in high speed and gave

dash to the Autorickshaw of the deceased. As a result, Autorickshaw

turned turtle on its right side and deceased suffered fatal injuries.

Immediately after the accident, F.I.R. came to be registered against

the Truck driver. At the time of accident, deceased was running the

age of 29 years and was earning Rs.7,000/- per month. Respondent

nos.1 to 3 were depending on the deceased for their livelihood.

They claimed the compensation of Rs.7,00,000/- for loss of

dependency.

4] This petition came to be resisted by respondent no.4,

the owner of the offending Truck contending inter alia that the

accident had occurred due to rash and negligent driving of the

1906 FA 8/2008 4 Judgment

deceased himself , and hence, respondent no.4 was not liable to pay

any amount of compensation.

5] Appellant also denied the cause of accident as rash and

negligent driving of the Truck and raised the plea that it was the

deceased who did not follow the traffic rules, and hence, accident

occurred because of his negligence.

6] On the rival pleadings of the parties, the Tribunal

framed necessary issues. In support of her claim, respondent no.1

Kalpana examined herself and produced on record F.I.R. (Exh.26),

spot panchnama (Exh.27) and other documents to prove her claim.

7] On appreciation of her oral and other documentary

evidence on record, the Tribunal held that the cause of accident was

rash and negligent driving of the Truck driver, and accordingly

allowed the petition granting compensation of Rs.5,16,264/-.

8] While challenging this judgment and order of the

Tribunal, learned counsel for appellant has advanced the

1906 FA 8/2008 5 Judgment

submission that it was the case of negligence and rash driving on

the part of the deceased himself as he was equally responsible for

the accident that has occurred. It is submitted that respondent no.1

Kalpana was not an eye witness to the accident and no other

evidence is produced on record by the claimants to show that the

accident had occurred due to rash driving of the Truck. It is urged

that at least the case of contributory negligence should have been

accepted by the Tribunal. The second point on which the argument

is advanced, relates to the lack of evidence about the income of the

deceased. It is submitted that, sans any evidence proving the income

of the deceased, the amount of compensation awarded by the

Tribunal is exhorbitant and on higher side.

9] As regards the first submission of learned counsel for

appellant that it can be a case of contributory negligence, the

evidence on record clearly goes to show that F.I.R .(Exh.26) is

lodged against the Truck driver and that too after making necessary

inquiries about the cause of accident. The said F.I.R. (Exh.26) and

spot panchnama (Exh.27) go to show that the Autorickshaw was

proceeding from Ladies Club Square towards Akashwani Square,

1906 FA 8/2008 6 Judgment

while offending Truck was coming from Northern side and going

towards R.B.I. Square. It is specifically mentioned in the spot

panchnama that Autorickshaw was found lying in damaged

condition facing to East and at Northern side of the Square, whereas

Truck fled away from the spot of incident. The Tribunal, has,

therefore, rightly held that the conditions which were found at the

time of spot panchnama are clearly suggesting that Autorickshaw

was proceeding on correct side of the road and it was the Truck

driver who could not control his speed and as a result gave dash to

the Autorickshaw.

10] It is pertinent to note that the Truck owner i.e.

respondent no.4 has neither examined the Truck driver nor any eye

witness to the accident. Hence, this documentary evidence in the

form of the F.I.R. and spot panchnama can be safely relied upon, in

the absence of any contradictory evidence brought on record by the

appellant or by the owner of the offending Truck. Absolutely no

case, is, therefore found to be made out as regards either

contributory negligence or even as regards the accident taking place

due to rash and negligent driving of deceased alone. The Tribunal

1906 FA 8/2008 7 Judgment

has, hence, rightly held the Truck owner i.e. respondent no.4 and

the appellant jointly and severally liable to compensate the

claimants.

11] As to the second girevance relating to quantum of

compensation, there is evidence of respondent no.1 Kalpana, who

has examined herself and has stated about the income of the

deceased. According to her, deceased had purchased the

Autorickshaw after obtaining loan from one Babu Auto Finance

Limited, and therefore, he was paying the installments of the loan.

Respondent no.1 Kalpana has also stated that when he was serving

on compassionate ground in place of his father, he was earning

salary of Rs.5,013/- per month, though he was not permanent

employee of M.S.R.T.C. In view thereof, the Tribunal has relied upon

the evidence of respondent no.1 Kalpana to hold that at the time of

accident, the net income of the deceased can be considered as

Rs.3,500/- per month. Having regard to his age of 29 years, the

Tribunal has applied the multiplier of 18, and accordingly calculated

the compensation of Rs.5,16,264/- including the medical expenses

and loss on other heads, like, loss of dependency, loss of estate, loss

1906 FA 8/2008 8 Judgment

of love and affection and funeral expenses.

12] Having regard to the just and reasonable amount of

compensation awarded by the Tribunal, which is also based on the

proper appreciation of the evidence on record, there is no reason to

interfere in the said judgment and award of the Tribunal.

13] The appeal, therefore, holds no merits, and hence

stands dismissed, with no order as to costs.

14] At this stage, it is submitted by learned counsel for

appellant that appellant has already deposited the entire amount of

compensation in this Court along with interest thereon. The

respondent nos.1 to 3 are, therefore, at liberty to withdraw the said

amount with the interest accrued thereon, if they have not already

done so.

15] Appeal stands disposed of as dismissed in above terms.

JUDGE

Yenurkar