Bombay High Court
The Oriental Insurance Company ... vs Smt. Vidya Ranu Ghule And Others on 8 November, 2017
Bench: P.N. Deshmukh
1 fa933.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.933 OF 2017
The Oriental Insurance Company Ltd.,
through its Divisional Manager,
Amravati, represented by Manager
T.P. Hub, A.D. Complex, Sadar,
Nagpur. ... Appellant
- Versus -
1) Smt. Vidya Ranu Ghule,
r/o Injora, Tahsil and District Akola.
2) Ku. Bhakti Ranu Ghule,
c/o Smt. Vidya Ranu Ghule,
r/o Injora, Tahsil and District Akola
(minor through mother guardian)
3) Shankar R. Mudholkar,
aged - major, occupation : owner,
r/o Wadarpura, Amravati,
Taluq and District Amravati.
4) Deleted.
5) Sau. Nalubai Madhukar Ghule,
age 55 years, occupation : household
work, r/o Parsoda, Taluq and
District Amravati. ... Respondents
-----------------
Mrs. M. Naik, Advocate for appellant.
Shri P.R. Agrawal, Advocate for respondent nos.1, 2 and 5.
----------------
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2 fa933.17
CORAM : P.N. DESHMUKH, J.
DATED : NOVEMBER 08, 2017
ORAL JUDGMENT :
Admit. Heard finally with consent of Smt. Naik,
learned Counsel for appellant, and Shri Agrawal, learned
Counsel for respondent nos.1, 2 and 5.
2) This appeal challenges judgment and award dated
30/4/2015 passed by the learned Member, Motor Accidents
Claim Tribunal, Amravati in M.A.C.P. NO.482/2010 by which
amount of Rs.8,15,000/- is awarded as compensation to
respondents/original claimants with interest at the rate of 8%
per annum from the date of petition, i.e. 30/11/2010 till
realization of amount.
3) The petition presented before the learned Motor
Accident Claims Tribunal was under the provisions of Section
163-A of the Motor Vehicles Act, 1988 (hereinafter referred to
as "the Act") alleging that deceased Ranu alias Rajesh
Madhukar Ghule was earning Rs.40,000/- per annum as he was
self employed in sale of milk and was aged about 26 years at
3 fa933.17
the time of accident, which occurred on 17/6/2010 at about
3 p.m. at Biyani Chowk, Amravati.
4) It is the case of claimants that on the day of accident,
deceased Ranu was riding motor cycle bearing Registration
No.MH-27/T-971 with one Pramod Shantaram Ghati as pillion
rider and was proceeding towards University when one tipper
bearing Registration No. MHG-6349 was stationary though not
on the extreme left side of the road, but on the road itself
without proper precaution and while deceased Ranu was in the
process of over taking tipper, one vehicle came from opposite
direction and to avoid collusion with the said vehicle, gave dash
to the stationary tipper causing accident wherein Ranu
sustained grievous injuries and succumbed to same.
5) On the basis of report, offence was registered against
deceased Ranu. Respondent no.3 is owner of the tipper, which
was insured with appellant. The claim petition was filed by
widow of deceased Ranu for herself, her minor daughter and
parents of deceased were made as original respondent nos.3
4 fa933.17
and 4. The claim petition was accordingly filed for grant of
compensation to the extent of Rs.8,00,000/- with interest at the
rate of 12% per annum from the date of accident till realization
of amount. During pendency of present appeal, original
respondent no.3 Madhukar died on 15/3/2016 as mentioned
in Civil Application No. 2955/2017 filed by respondent nos.1
and 2 seeking permission to withdraw the amount.
6) The learned Tribunal awarded compensation of
Rs.8,15,000/- inclusive of no fault liability along with interest
at the rate of 8% per annum from the date of petition, i.e.
30/11/2010 till realization of amount, which award has been
challenged by appellant Insurance Company.
7) It is the case of respondent no.3, owner of tipper, as
revealed from his written statement (Exh. 20) that the accident
took place due to sole negligence of deceased Ranu as he
himself gave dash to stationary tipper, which was parked at the
correct side of the road. Similar is the case of appellant insurer
as revealed from its written statement (Exh. 17) that accident
5 fa933.17
occurred due to negligent driving of deceased Ranu himself. It
is, therefore, the case of appellant and respondent no.3 that
claimants are not entitled for any compensation as no
negligence can be attributed to the driver of tipper involved in
this accident.
8) Smt. Naik, learned Counsel for appellant, has
contended that according to contents of spot panchanama
(Exh. 31) and first information report (Exh. 30), negligence on
the part of deceased Ranu alone can be said to be established
and that both these documents came to be exhibited in the
evidence of claimant wife. It is thus submitted that no liability
can be fastened upon the appellant/insurer of tipper.
9) In the background of facts as above, it is material to
note from the written statement (Exh. 17) of the appellant that
fact of tipper bearing Registration No. MHG-6349 having been
insured with appellant is not disputed, as according to its
written statement, same was insured vide Insurance Policy
No.182300/31/2010/21125 for the period from 26/3/2010 to
6 fa933.17
25/3/2011, as such said tipper was duly insured with appellant
on the date of accident, which has occurred on 17/6/2010. In
that view of the matter, there appears no substance in the case
of appellant that insurance policy does not cover risk of alleged
accident and no liability thus can be fastened on the appellant
or the liability can solely be fastened on respondent no.3/
owner of vehicle.
10) From the spot panchanama, involvement of tipper
bearing Registration No. MHG-6349 and motor-cycle bearing
Registration No. MH-27/T-971 has duly been established.
From spot panchanama and first information report, it is
established that accident occurred involving said two vehicles
wherein deceased Ranu sustained grievous injuries, to which he
succumbed. Needless to say that there is no challenge to the
case of claimants that income of deceased was only to the
extent of Rs.40,000/- per annum and thus, they filed claim
petition under Section 163-A of the Act.
11) In the circumstances, admitted facts involved in the
7 fa933.17
appeal are that accident took place on 17/6/2010 involving
tipper bearing Registration No. MHG-6349 and motor-cycle
driven by deceased bearing Registration No. MH-27/T-971
wherein he sustained grievous injuries and succumbed to them.
It is not in dispute that at the time of accident income of
deceased Ranu was Rs.40,000/- per annum, which case in fact
has been further substantiated from the evidence of claimant
wife. Neither appellant nor respondent no.3/owner of vehicle
has adduced any evidence which, in view of above admitted
facts, and since the claim was under Section 163-A of the Act,
was even otherwise not found necessary, to establish negligence
or wrongful act or default on the part of deceased Ranu. By
now, law on the point of grant of compensation under the
provisions of Section 163-A of the Act is well settled. The
procedure of giving compensation under Section 163-A of the
Act is inconsistent with the procedure prescribed for awarding
compensation on fault liability. Under Section 163-A of the Act
compensation is awarded without proof of any fault while for
getting compensation on the basis of fault liability, claimant is
8 fa933.17
required to prove wrongful act, neglect or default of the owner
of vehicle concerned. As such, application under Section 163-
A of the Act cannot be tried as an application under Section 166
of the Act by the Tribunal. Therefore, the Insurance Company
is not entitled to insist that the claimants shall have to prove
negligence and the Insurance Company may be given an
opportunity to disprove the said facts. Similarly, in respect of
the income part also, the Insurance Company is not entitled to
have any opportunity to lead any evidence or to prove a right of
cross-examination while deciding an application under Section
163-A of the Act. Thus, it is noted that purpose of Section
163-A of the Act is to award compensation without having to
prove negligence of the driver of the vehicle. However, the
accident has to be proved. The ownership and insurance of the
vehicle has to be proved. The age and income of the deceased
has to be proved and it is only thereafter that award can be
announced. It also must be proved that the claimants are the
legal representatives of the deceased. It is only thereafter that
the Court can make the calculation.
9 fa933.17
12) In the appeal in hand, respondents/original
claimants from the documents and evidence on record have
established that accident took place on 17/6/2010 involving
tipper bearing Registration No. MHG-6349 and motor-cycle
bearing Registration No. MH-27/T-971 wherein Ranu died.
The fact that tipper is owned by respondent no.3 and insured
with appellant Insurance Company is established as not
disputed by insurer. Similarly, there is no challenge to age and
income of deceased Ranu to the extent of Rs.40,000/- per
annum.
13) Having considered aforesaid facts, it is implicitly
proved on record that deceased died in the motor vehicle
accident involving above numbered vehicles. Considering age
of deceased Ranu as 26 years, as per Second Schedule to
Section 163-A of the Act, multiplier of 18 would thus be
applicable in the instant appeal. Admittedly, respondents/
original claimants were dependent upon deceased Ranu and
hence, 1/3rd amount is required to be deducted from the
annual income of the deceased. Therefore, taking into
10 fa933.17
consideration annual income of Rs.40,000/- and on deducting
1/3rd amount of Rs.13,333/- from it, income of deceased Ranu
is required to be held as of Rs.26,666/- per annum, which on
applying multiplier of 18, comes to Rs.4,79,988/- as total
dependency. In addition to above amount, respondents/
claimants are entitled to Rs.40,000/ towards consortium and
Rs.15,000/- towards funeral expenses. As it goes unchallenged
that at the time of death of deceased, his wife was pregnant
and has given birth to respondent no.2, the new born cannot
see her father, therefore, claimants are granted very meagre
amount of Rs.50,000/- on this count.
14) In the result, the impugned judgment and award
dated 30/4/2015 passed by learned Member, Motor Accident
Claims Tribunal, Amravati in M.A.C.P. No.482/2010 is
modified as under :
The appellant Insurance Company and respondent
no.3 are jointly and severally directed to pay amount of
compensation of Rs.5,84,988/- (rounded to Rs.5,85,000/-)
along with interest at the rate of 8% per annum from the date
11 fa933.17
of petition, i.e. 30/11/2010 till realization of entire amount to
claimants/respondent nos.1, 2 and 5.
The above amount be disbursed to respondent nos.1,
2 and 5 according to apportionment made by the learned
Tribunal except for 10% of amount of compensation made
payable to original respondent no.4 Madhukar Pavanaji Ghule,
father of deceased Ranu, since dead during pendency of
present appeal. The said amount of 10%, therefore, be paid to
respondent no.5 Smt. Nalubai wd/o Madhukar Ghule.
The amount be disbursed after period of appeal is
over.
On making application before Registrar (Judicial) of
this Court, the appellant Insurance Company is entitled to claim
refund of balance amount as total amount deposited by
appellant is Rs.11,59,210/-.
The appeal is thus partly allowed in the above terms
with no order as to costs.
JUDGE
khj
