Bombay High Court
The Oriental Insurance Co Ltd vs Kamalbai Apparao Kurme And Ors on 21 June, 2017
Bench: V.K. Jadhav
fa976.07
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 976 OF 2007
WITH
CIVIL APPLICATION NO. 6226 OF 2008
The Oriental Insurance company Limited
Office at West Mangalwarpeth,
Chate Galli,
Sholapur, Tq. and Dist. Sholapur
Now Through Senior Divisional Manager
The Oriental Insurance company Limited,
Divisional Office, "Inderprakash"
Adalat Road, Aurangabad ...Appellant
versus
1. Kamalbai w/o Apparao Kurme
Age 55 years, Occ. Household,
R/o. Vallabhnagar, Parali Vaijinath,
Tq. and District Beed.
2. Dr. Dinesh s/o Apparao Kurme
Age 33 years, Occ. Service,
R/o. As above (Ori. Claimants)
3. Dnyanoba s/o Gyandeo Bade,
Age 40 years, Occ. Agricultural
R/o. Gaondara, Tq. Dharur,
District Beed
4. Ritesh Ravindra Rathod,
Age 30 years, Occ. Business,
R/o. Subhash Chouk, Parli Vaijinath
Tq. Parli Vaijinath, District Beed ...Respondents
.....
Mr. S.M. Godsay, advocate for the appellant
Mr. S.G. Chapalgaonkar, advocate for respondent Nos. 1 and 2
.....
CORAM : V. K. JADHAV, J.
DATED : 21st JUNE, 2017
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 24.5.2007,
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passed by the learned Member, M.A.C.T. Ambajogai, in M.A.C.P. No. 9
of 2006, the original respondent No.3 insurer has preferred this appeal
to the extent of negligence on the part of driver of Maruti van and also
quantum of compensation as awarded by the Tribunal.
2. Brief facts giving rise to the present appeal are as follows:-
a) Deceased Apparao alongwith his friend Umakant, was
proceeding to Parali Vaijinath from Aurangabad in Maruti Van bearing
registration No. MH-23-E-3270. On way, 10 kilometers away from
Parali Vaijinath, said Maruti van dashed against a trolley bearing
registration No. MH-23-C-4404, which was kept stationery on the middle
portion of road. In consequence of which, deceased Apparao and said
Umakant died on the spot itself. At the time of accident, said Umakant
was driving the Maruti van.
b) The legal representatives of deceased Apparao approached the
Tribunal by filing M.A.C.P. No. 9 of 2006 for grant of compensation
under various heads. It has been contended that deceased Apparao
was serving as Principal at Vaijinath College, Parali Vaijinath on
monthly salary of Rs.43,820/-. He was having very good academic
career. After retirement, he would have joined the other service
equivalent to the said post. The appellants-claimants therefore, claimed
the compensation of Rs.22,00,000/- with interest and costs.
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c) The respondent No.1 owner has strongly resisted the claim by
filing written statement. It has been contended in the written statement
that the said trolley was kept stationery at left side of the road and the
Maruti van was in high speed and therefore, the driver of the said Maruti
van could not control it and given dash to the stationery trolley. It has
been contended that the accident was caused on account of negligence
on the part of driver of Maruti van.
d) The appellant-insurer has also strongly resisted the claim petition
with almost on the same grounds. In addition to that, the appellant
insurer has also raised a defence that the driver of said tractor was not
having valid and effective driving licence to drive the said vehicle and
tractor was being used for non agricultural purpose.
e) The respondents-claimants have adduced oral and documentary
evidence in support of their contentions. Respondent No.1 has also
examined himself. Learned Member of the Tribunal has partly allowed
the claim petition and thereby directed the respondents and the
appellant-insurer, jointly and severally, to pay an amount of
Rs.18,09,000/- to the appellants-claimants together with interest @
7.5% p.a. from the date of petition till realization of the entire amount.
Hence this appeal.
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3. Learned counsel for the appellant-insurer submits that the
appellant-insurer has challenged the judgment and award passed by the
Tribunal mainly on the ground that the Tribunal has not considered the
negligence/contributory negligence on the part of driver of Maruti Van
and secondly, the Tribunal has awarded exorbitant amount of
compensation by taking into consideration the gross salary of deceased
Apparao. Learned counsel submits that admittedly, the said trolley was
kept stationery and only on that ground, the Tribunal has fastened the
liability entirely on the respondent owner of said trolley and its insurer
i.e. the appellant. Learned counsel submits that the Tribunal has also
erroneously taken into consideration the gross salary of deceased
Apparao for determination of compensation. As per the salary
certificate Exh.40, though gross salary of deceased Apparao was shown
at Rs.43,820/-, but the net salary was Rs.15,572/- only. The Tribunal
ought to have considered the net salary of deceased Apparao for
determination of compensation under the head of loss of future income.
4. Learned counsel for the respondents-original claimants submits
that the Tribunal has awarded just and reasonable compensation by
taking into consideration the salary certificate Exh.40. Learned counsel
submits that the said trolley was kept stationery on the tar road and the
accident had taken place in the night time at 9.30 p.m. It is a part of
record that there were no parking lights to the said trolley and at the
time of accident there were no signals indicating stationary position of
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the said trolley. Learned counsel submits that the Tribunal has
erroneously applied the multiplier 5 instead of 9. Even though the
respondents-claimants have not preferred any appeal, they are entitled
for just and reasonable compensation in accordance with law. Learned
counsel, in the alternate, submits that though considering that certain
deductions are permissible in the salaried income and if the multiplier 9
is applied instead of 5, almost the same amount of compensation would
be worked out.
5. On careful perusal of pleadings, evidence and the impugned
judgment and award passed by the Tribunal, it appears that the said
trolley was kept in stationery position at the center of the road, without
any signal or parking lights. The accident had taken place at 9.30 p.m.
In absence of any signal or parking lights, it is difficult to notice the
vehicle kept stationery on the tar road. Further, the accident had taken
place 10 kilometers away from Parali Vaijinath. On perusal of spot
panchnama and its contents, I do not find street lights by the side of the
road or any residential houses or commercial structures by the side of
road. Learned Member of the Tribunal has therefore, rightly recorded
the finding in affirmative to issue No.1 and held that death of Apparao is
caused due to illegal parking of trolley on the road. I do not find any
fault in the said finding.
6. So far as the quantum of compensation is concerned, no purpose
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would be served by deducting certain items from the salaried income of
deceased Apparao and further making addition in the multiplier to
determine the compensation. In view of the same, it appears that the
Tribunal has awarded just and reasonable compensation by considering
salaried income of deceased Apparao. No interference is required.
There is no substance in the appeal. Hence, I proceed to pass the
following order:-
ORDER
I. The first appeal is hereby dismissed with costs.
II. If any amount is deposited, the claimants are permitted to
withdraw the same alongwith accrued interest thereon.
III. The appeal is accordingly disposed of.
IV. Pending civil application is also disposed of.
( V. K. JADHAV, J.)
rlj/
