Smt Poonam Late Shri Inderlal ... vs S Chainsingh Harnamsingh Punjabi
2017 Latest Caselaw 3647 Bom

 fa261.06.J.odt                      1




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


                      FIRST APPEAL NO.261 OF 2006



 1]       Smt. Poonam wd/o Late Shri
          Inderlal Jaisinghani, Aged about
          50 years, Occ: Household.

 2]       Ku. Arti d/o Late Shri Inderlal
          Jaisinghani, Aged about 26 years,
          Occ: Student.

 3]       Master Manish s/o Late Shri Inderlal
          Jaisinghani, Aged about 25 years,
          Occ: Student.

 4]       Master Sapan s/o Shri Inderlal 
          Jaisinghani, Aged about 21 years,
          Occ: Student.

          All R/o 19, Deshraj Layout,
          Jaripatka,
          Nagpur-440 014 (M.S.).      ....... APPELLANTS


                               ...V E R S U S...


 1]       S. Chainsingh s/o Harnamsingh
          Punjabi, Aged about 35 years,
          Occ: Driver, originally r/o M.G. Road,
          Allahabad, presently r/o Teka Naka,
          Near Ramgiri House Kamptee Road
          (under P.S. Panchpaoli, Nagpur)




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                       2]       S. Darshan Singh s/o Hardayalsingh
                                Gidda, Aged Major, Occ: Goods
                                Transporter, originally r/o G.E. Road,
                                Jogibandh, Raipur (M.P.) present address
                                at Kalpana Transport Co. Gandhibagh,
                                Nagpur-440 002.

                       3]       The National Insurance Co. Ltd.
                                Divisional Officer III, Mount Road
                                Extn., Sadar, Nagpur - 440 001
                                through its Divisional Manager.

                       4]       The National Insurance Co. Ltd.,
                                with its registered office at 3,
                                Middleton Streets, Calcutta-700 071.
                                (Deleted as per Court order
                                dated 18/06/2009)

Resp. No.5 deleted     5]       Shri Daulatram s/o Hundraj 
as per order dated 
19/7/14 passed by               Jaisinghani, Aged about 80 years,
this Hon'ble Court.             Occ: Pensioner.

                       6]        Smt. Savitri w/o Daulatram
                                Jaisinghani, Aged about 77 years,
                                Occ: Housewife.
                                (Deleted as per Court order
                                dated 31/01/2005)

                               Nos.5 & 6, residents of 19,
                               Deshraj Layout, Jaripatka,
                               Nagpur-440 014.                         ....... RESPONDENTS
                       -------------------------------------------------------------------------------------
                               Shri R.R. Srivastava, Advocate for Appellants.
                               Smt. Smita Deshpande, Advocate for Respondent No.3.
                       -------------------------------------------------------------------------------------


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

th DATE: 27 JUNE, 2017.

ORAL JUDGMENT

1] The appellants, who are the original claimants,

have challenged the legality and validity of the judgment and

order dated 14.01.2004 passed by the Member, Motor

Accident Claims Tribunal, Nagpur in Claim Petition No.606 of

1995.

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

The appellants are the legal representative of

deceased Inderlal Jaisinghani, who met with an accidental

death on 30.06.1995. Appellant No.1 is the widow, appellant

No.2 is the daughter and appellant Nos.3 and 4, are the sons

of the deceased.

3] According to their case, on 30.06.1995 the

deceased was proceeding on Luna at about 05:30 p.m. and

waiting for clearance of the traffic signal near University

Campus at old Amravati Naka square. After the green signal

was given, he started proceeding on the road. At that time

one truck bearing No.MP-23 B-6550 came from Ambazari

side and was proceeding towards Amravati. It came from

opposite direction and gave dash to the Luna of the deceased.

As a result, Inderlal fell down, sustained the injuries and

succumbed to these injuries.

4] As per the appellants, deceased was working as

Small Saving Agent of Syndicate Bank and was also working

as L.I.C. agent. From both these sources, he was earning

income of Rs.12,000/- per month. On account of his death,

the appellants lost their only source of income and hence they

claimed compensation of Rs.22,26,000/- from respondent

No.1-the driver, the respondent No.2 registered owner and

the respondent No.3-the insurance company of the offending

truck.

5] The petition proceeded ex parte against the

respondent No.1. The respondent No.2 resisted the petition

vide his written statement at Exh.17, contending inter alia

that the cause of accident was the rash and negligent driving

of the deceased and denied his liability to pay any amount of

compensation to the appellants.

6] The respondent No.3-the Insurance Company has

resisted the petition vide its written statement at Exh.10,

raising a specific plea that respondent No.1-the truck driver

was not holding valid and effective driving licence and hence

respondent No.3 was not liable to indemnify respondent

No.2. An attempt was also made to contend that the amount

of compensation claimed by the appellants is exorbitant.

7] The respondent Nos.5 and 6, are the parents of

the deceased and they have supported the claim of the

appellants.

8] On these rival pleadings of the parties, the

Tribunal framed necessary issues for its consideration.

In support of their case, appellant No.1 examined herself and

relied upon the various documentary evidence, like copy of

the F.I.R. Exh.62, spot panchnama Exh.53, postmortem report

Exh.54 and the certificate issued by the Branch Manager of

Syndicate Bank Exh.58, the certificate issued by Senior

Branch Manager of L.I.C., Nagpur Exh.59, and three challans

of Income Tax at Exh.16. The appellant also examined the

witness by Dr. N. Ganesh, Bank Manager, Wadi Branch,

Syndicate Bank to prove that the deceased was working as

Small Saving Agent and earning commission at the rate of 3%

of the total amount of his daily collection.

9] On appreciation of this oral and documentary

evidence, the learned Tribunal was pleased to hold that the

deceased himself was also responsible for the accident that

has occurred, and held his contributory negligence to the

extent of 20%. Learned Tribunal further held that the

respondent No.1-truck driver was not proved to be having

valid and effective licence and accordingly learned Tribunal,

though awarded the compensation to the tune of

Rs.7,96,600/- inclusive of no fault liability with interest at the

rate of 6% per annum from the date of the petition till its

realization, directed the Insurance Company in the first

instance to satisfy the awarded amount in favour of the

appellants and thereafter to recover the same from the owner

of the vehicle namely respondent No.2.

10] Neither the owner of the vehicle i.e. respondent

No.2 nor the Insurance Company has challenged the said

award. Only the original claimants have challenged this

Award, disputing the liability of the deceased in the accident

to the extent of 20% and also seeking enhanced amount of

compensation.

11] In this case involvement of both the vehicles in

the accident is not disputed. The only disputed question is

about the manner in which the accident has occurred.

Admittedly, appellant No.1 who has examined herself was

not an eye witness to the accident. Respondent No.1-the

driver of the truck has not examined himself though he was

having an opportunity to do so. No other eye witness is

examined by either of the party. Therefore, one has to go by

the contents of the F.I.R. and spot panchnama to ascertain the

manner in which the accident has taken place.

12] At this stage, it may be stated that the Police had,

after carrying out necessary inquiry registered the offence

under Section 279, 304-A of the I.P.C. against respondent

No.1. The copy of the F.I.R. in the case is produced on record

at Exh.62 and it clearly goes to show that it is lodged by an

eye witness to the incident, namely the driver of one another

truck, who at the relevant time was taking tea at Old

Amravati Road Square. According to the said complaint, one

truck was from coming from Ambazari side; one Traffic

Constable was controlling the traffic in the square, he had

stopped the traffic coming from Futala Talao and allowed the

traffic coming from Ambazari Garden to proceed.

Accordingly, the truck was proceeding towards Fultala Talao

and while doing so, the truck came on the right side of the

road and gave dash to red colour Luna. As a result of the

dash, the Luna came below the wheels of the truck, the Luna

driver fell on the ground and sustained injuries.

13] The spot panchnama Exh.53 also supports the

contents of the F.I.R. Thus, neither the F.I.R. nor the spot

panchnama in any way indicate that the deceased, who was

driving the Luna, was in any way responsible for the accident

that has occurred. The finding recorded by the Tribunal that

the offending truck was just at the side of the deceased, and

the moment signal was cleared both the vehicles proceeded

further from the said place and soon thereafter deceased was

dashed by the truck is not based on the evidence produced in

the case. Therefore, the learned Tribunal has committed an

error in holding the deceased responsible to the extent of

20% in the said accident. Absolutely, no case of contributory

negligence of the deceased is made out from the evidence

produced on record. The finding to effect as recorded the

learned Tribunal accordingly needs to be set aside.

14] As regards the next finding of the learned

Tribunal that, at the time of accident respondent No.1 was

not holding valid driving licence, it is based on the evidence

of record, as the authentic document produced on record by

the Insurance Company namely, the certificate issued by the

District Transport Officer, Kamrup clearly demonstrating that

motor driving licence No.70211-88/GHT produced in the

Police papers is not issued by it. The said finding is not

challenged by the respondent No.2-the owner of the

offending truck also. Hence the said finding need not be

disturbed in this appeal.

15] About the quantum of compensation, the

appellant No.1 has examined herself and produced various

documentary evidence on record. She has also examined the

relevant witness from Syndicate Bank to prove the income of

the deceased from the commission, as Pigmy Agent.

Her evidence proves that deceased was also earning as Agent

of L.I.C. After taking into consideration this documentary

evidence, the learned Tribunal has held that the total income

of the deceased comes to the tune of Rs.98,000/- per annum.

However, in this respect, it can be seen that the average

income of the deceased as reflected in the table furnished by

appellant for three preceding years comes to Rs.1,20,000/-

per annum. Considering that there were six dependents on

the income of the deceased, including his spouse, three minor

children and parents then, as held in the case of Sarla Verma

(Smt.) and others vs. Delhi Transport Corporation and another

reported in (2009) 6 SCC 121, ¼ of the said amount is

required to be deducted towards the personal and living

expenses of the deceased. Therefore, amount towards the

financial loss of the deceased comes to Rs.82,000/- per

annum

16] Having regard then to the decision of the Apex

Court in the case of Santosh Devi v. National Insurance

Company 2013 (9) SCC 54 and having regard to the age of

the deceased as 45 years, at the time of accident 30% of the

additional income is required to be calculated towards his

future prospects. Thus the total incomes comes to

Rs.1,09,330/- p.a. If it is multiplied by 15, which is the proper

multiplier, as applied by the Tribunal, it comes to Rs.1,09,330

x 15 = Rs.16,13,250/- towards the financial loss.

18] In view of the decision of Apex Court in Rajesh vs.

Rajbir Singh 2013 ACJ 1403 (S.C.), the appellant No.1 will

also become entitled to the amount of Rs.1,00,000/- towards

loss of consortium and Rs.1,00,000/- towards loss of love,

affection and estate, so far as appellant Nos.2 to 4 are

concerned. The appellants are also entitled to the amount of

Rs.25,000/- towards funeral expenses. Thus, the total amount

of Rs.18,38,250/-.

19] The learned Tribunal has awarded interest at the

rate of 6% per annum. However, considering the above said

judgment of the Apex Court in Rajesh vs. Rajbir Singh,

amount of interest needs to be enhanced to 7.5% per annum

from the date of petition till its realization.

20] Accordingly, the appeal is allowed with

proportionate costs.

21] The judgment and order of the Tribunal is

modified to the extent that appellants are held entitled for the

total compensation of Rs.18,38,250/- inclusive of amount of

Rs.50,000/- towards no fault liability, with interest at the rate

of 7.5% per annum from the date of petition till its

realization.

22] Rest of the judgment of the Tribunal stands

confirmed.

23] Needless to state that, at first instance the

Insurance Company is to pay this amount to

appellants-claimants and is thereafter entitled to recover this

amount from respondent No.2, the owner of the offending

vehicle.

Appeal is disposed of in above terms.

JUDGE

NSN