Bombay High Court

Thomas Erappukuzhy And Anr vs Prakash P. Kshirsagar And Ors on 26 May, 2017

Bench: C.V. Bhadang

rsk                                   1                        Mumbai FA-143-and-144-03.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                           FIRST APPEAL NO.143 OF 2003

Mr. Damodar Nair and another                                   ...Appellants
            vs.
Shri Prakash Parashram Kshirsagar & Ors.                       ...Respondents

                                     WITH
                           FIRST APPEAL NO.144 OF 2003

Mr.Thomas Erapukushy and another                               ...Appellants
            vs.
Shri Prakash Parashram Kshirsagar and others                   ...Respondents


Mr. Ketan Chothani a/w Mr. Rohan Bhaije i/b Mr. M. G. Barve for the
Appellants in both First Appeals.
Mr. G. S. Hegde i/b M/s. G. S. Hegde & Associates for the Respondent No.4.

                                     CORAM: C. V. BHADANG, J.

                                     DATE:    May 26, 2017.

ORAL JUDGMENT:


.                 Both these Appeals involve claim for compensation arising out

of the same accident. As such they are being disposed of by this common

judgment.

2. The facts necessary for the disposal of the Appeals may be

stated thus:

That in all five persons met with death in a vehicular accident

which occurred on 1/12/1991 at about 5.50 p.m. on Vita-Karad road, near

Dhavaleshwar Phata. The accident involved a jeep bearing No.MH-10/8118

rsk 2 Mumbai FA-143-and-144-03.odt

and ST Bus bearing No.MH-12/F-3065. In all 5 claim petitions were filed by

the dependents of the deceased before the Motor Accident Claim Tribunal at

Sangli (for short 'Tribunal') being MACP No.29/1992, MACP No.118/1992,

MACP No.160/1992, MACP No.189/1992 and MACP No.200/1992. The

present First Appeal No.143/2003 arises out of MACP No.189/1992 in

which a compensation of Rs.55,000/- (inclusive of no fault liability) along

with interest has been granted against the Respondent Nos.1 and 2, who are

respectively the driver and the owner of the jeep. A similar award is made in

MACP No.200/1992, which is the subject matter of challenge in First Appeal

No.144/2003. The Tribunal has decided all the five petitions by common

judgment and award dated 3/7/2001.

3. I have heard Mr. Ketan Chothani, the learned counsel for the

Appellant. None appears for the Respondent. With the assistance of the

learned counsel for the Appellant, I have perused the record and the

impugned judgment passed by the learned Tribunal.

4. It is submitted by the learned counsel for the Appellant that the

Tribunal was in error in coming to the conclusion that there was a breach of

policy condition. He submitted that the Tribunal could not have absolved

the insurer of the jeep. It is next submitted that the Tribunal also erred in

holding that the accident occurred solely due to the rash and negligent

driving of the driver of the jeep.

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5. The learned counsel for the Appellant submitted that the

accident was a result of composite negligence of drivers of both the vehicles.

In the alternative, it is submitted that the Tribunal ought to have passed an

order in the nature of 'pay and recover'. In other words, the Tribunal ought

to have directed the insurance company to pay/deposit the amount, subject

to a right of recovery from the owner of the jeep. Reliance in this regard is

placed on the decision of the Hon'ble Supreme Court in the case of (i)

Manuara Khatun & Ors. vs. Rajesh Kr. Singh & Others, Civil

Appeal No.3047/2017, (ii) Manager, National Insurance Co. Ltd.

vs. Saju P. Paul and Another, 2013 (2) SCC 41 and (iii) decision of

this Court in United India Assurance Co. Ltd. vs. Sindhubai

Darwante and Ors., 2010(3) Mah. L. J. 886.

6. The learned counsel for the Appellant has also taken exception

to the quantum of compensation awarded. It is submitted that the Tribunal

could not have reckoned income at the rate of Rs.15,000/- p.a. It is also

submitted that on account of mental shock and agony the Tribunal could not

have refuted the compensation in MACP No.189/1992 on the ground that it

cannot be granted on the basis of evidence of the General Power of Attorney

holder of the claimants.

7. I have carefully considered the circumstances and the submissions

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made. Firstly, it would be necessary to see whether this is a case of

composite negligence of the drivers of the jeep and the ST bus. The drivers

of both the vehicles were examined before the Tribunal and the Tribunal has

elaborately considered the evidence of these witnesses in the context of the

circumstances appearing from the spot panchanama. The reasoning in this

regard can be found in paragraph Nos.21 to 23 of the impugned judgment.

I have carefully gone through the same and I do not find that a different

view can be taken. The Tribunal has rightly found that it was the driver of

the jeep who was at fault in attempting to overtake the tempo. The driver of

the ST bus had tried to avoid the impact by taking the ST bus to extreme left

side. There were brakes/tyre marks found on the spot. It has rightly been

found that there was no damage to the left side of the bus and it was the jeep

driver, who while overtaking the tempo went to the wrong side and dashed

the bus.

8. In my considered view the learned Tribunal has rightly accepted the

evidence of Madhukar Shinde than the evidence of Prakash Kshirshagar.

Thus, no exception can be taken to the finding recorded by the learned

Tribunal holding that the accident was a result of rash and negligent driving

of the jeep. Thus, the learned Tribunal has rightly absolved the Respondent

No.4.

9. This takes me to the question of breach of policy conditions. The

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Tribunal has dealt with this aspect from paragraph 28 onwards. As per the

statement of the driver of the jeep, he was knowing the deceased Nair as he

was running a puncture repairing shop. He claimed that the deceased

Thomas was also known to him as Mr. Thomas used to be in the shop of Mr.

Nair. He also claimed that he was knowing the rest of the occupants as they

were on visiting terms with the owner. The injured and the deceased asked

for a lift from Panchayat Samiti at Vita. He admitted that the jeep was not

having a permit to carry passengers. The Tribunal has refused to accept the

evidence of this witness on the ground that the occupants were not related

or known to the owner as the owner is from Nerli and the occupants were

from different villages. After having carefully gone through the evidence and

the finding recorded, I do not find any reason to take a different view. Thus,

it cannot be accepted that the deceased were gratuitous passengers. The

question is whether insurance company can be directed to pay/deposit the

compensation subject to right of recovery from the owner.

10. The learned Single Judge of this Court in the case of United

India Assurance Co. Ltd. (cited supra) has inter alia held that in

appropriate cases the Tribunal has jurisdiction to direct the Insurance

Company to pay/deposit the compensation subject to right to recover from

the owner. The Hon'ble Supreme Court in a recent decision in the case of

Manuara Khatun & Ors. (cited supra) has also taken a similar view. It

may be significant to note that the case of United India Assurance Co.

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Ltd. (cited supra) also involved a claim for compensation in respect of a

fare paying passenger and same course can be adopted in this case. This

takes me to the question of quantum which will have to be considered

individually in each case.

First Appeal No.143/2003

11. The deceased Gopinath was aged 55 years on the date of accident

and was unmarried. He was a motor mechanic. According to the claimants

in MACP No.189/1992, Gopinath was working in Shriniwas Garage at Pune

and was earning Rs.2,000 to 2,500 p.m. A month before the accident he

had left the said garage and started a garage of his own. The Tribunal has

observed that the deceased cannot start earning Rs.2000-2,500 within one

month of starting a new garage and as such has taken a notional income of

Rs.15,000/- p.a. The Tribunal has also observed that there were neither any

premises shown nor a license for running such garage. The Tribunal has

deducted 2/3rd amount towards personal and living expenses and

calculated the dependency at Rs.5,000/- p.m. which to my mind cannot be

accepted. The assessment of compensation, necessarily involves a certain

amount of reasonable guess work. The deceased was a young boy of 25 years

and had an experience of working in a garage at Pune and monthly income

of the deceased can safely be taken at Rs.1,500/- p.m. i.e. Rs.18,000/- p.a.

As per the decision in the case of Smt. Sarla Verma & Others Vs. Delhi

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Transport Corporation & Another, (2009) 6 SCC 121, deduction

towards personal and living expenses, where the deceased is unmarried is to

be 50%. Thus an amount of Rs.9,000/- can be deducted towards personal

and living expenses, which will lead to dependency of Rs.9,000/- p.m. So far

as the claimants are concerned, as per the decision of Smt. Sarla Verma

(cited supra), appropriate multiplier for the age group of 20-25 is 18.

Thus, the compensation would be Rs.9,000 x 18 = Rs.1,62,000/-. A

notional amount of Rs.10,000/- can be granted towards loss of estate and

Rs.5,000/- towards funeral expenses. Thus, the total compensation would

come to Rs.1,77,000/-. This will be inclusive of the compensation on no

fault liability basis.

First Appeal No.144/2003

12. Here again the deceased was 25 years old and was unmarried and

was earning Rs.1,500 p.m. The case made out was that the deceased was

sending Rs.1,000/- p.m. to the parents. I find that in the present case also

the income can be taken as Rs.1,500/- p.m. and thus the compensation for

similar reasons as stated above would come to Rs.1,62,000/- plus a notional

amount of Rs.10,000/- towards loss of estate and Rs.5,000/- towards

funeral expenses. Thus, the total compensation will come to Rs.1,77,000/-.

This will be inclusive of compensation granted/paid if any, under the no

fault liability. I am inclined to maintain the rate of interest as awarded by

rsk 8 Mumbai FA-143-and-144-03.odt

the Tribunal at 9% p.a. from the date of the petition till realization.

Consequently, the following order is passed:

ORDER

i) First Appeal No.143/2003 and 144/2003 are partly allowed.

ii) The impugned judgment and award is hereby modified. The

Respondent Nos.1 to 3 shall be jointly and severally liable to pay

Rs.1,77,000/- in each of the Appeals along with interest at 9% p.a.

from the date of the petition till realization.

iii) The Respondent No.3/insurer shall be entitled to recover the

said amount from Respondent No.1 and 2 as per the law laid down

in Challa Upendra Rao1.