Bombay High Court
The New India Assurance Company ... vs Paikkaji Asuji Lambade And 3 ... on 22 November, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
1) FIRST APPEAL No.357 OF 2006 WITH
2) FIRST APPEAL No.718 OF 2006 WITH
3) FIRST APPEAL No.727 OF 2006 AND
4) FIRST APPEAL No.729 OF 2006
===========
FIRST APPEAL No.357 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
1. Paikaji s/o. Asuji Lambade,
Age - 47 years, Occ. Labour.
2. Sau. Vatsala Paikaji Lambade,
Age 40 years, Occ.-Household.
3. Akash s/o. Paikaji Lambade,
Age 15 years, Occ.: Education.
Respondent No.3 minor
representing by his natural
Guardian Father i.e. non-applicant No.1.
All R/o. Anand Nagar, Kothari, Tahsil-Ballarpur,
District - Chandrapur.
4. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 3.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.3.
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WITH
FIRST APPEAL No.718 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
1. Mohammad Karim Kureshi,
Aged about 46 years, Occ.: Nil.
2. Rabiya w/o. Mohammad Kureshi,
Aged about 39 years, Occ.-Household.
3. Sufiya d/o. Mohammad Kureshi,
Aged about 17 years, Occ.: Education.
4. Salim s/o. Mohammad Kureshi,
Age about 15 years, Occ.- Education.
5. Sakinabee Karim Kureshi,
Aged about 60 years, Occu.: Nil,
Applicant Nos.3 and 4 are being minors,
represented by their natural
guardian father i.e. non-applicant No.1.
All R/o. Bazar Ward 5, Kothari,
Tq. Ballarpur, Distt. - Chandrapur.
6. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 4.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.6.
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WITH
FIRST APPEAL No.727 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
1. Sheikh Daut Shiek Ismile Sheikh,
Aged 45 years, Occ.-Nil.
2. Khurshidbano Sheik Daut Shiek,
Age 40 years, Occ.-Household.
3. Pravinbano Sheik Daut Sheikh,
Age 28 years, Occ.-Household.
4. Shahida Sheik Daut Shiek,
Age 17 years, Occ.- Education.
Respondent No.4 minor
representing by her natural
guardian Father i.e. non-applicant No.1.
All R/o. Kunbi Ward No.2 ,
Kothari, Tah. Ballarpur,
District - Chandrapur.
5. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 4.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.5.
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AND
FIRST APPEAL No.729 OF 2006
The New India Assurance Company Limited,
Through it's Manager, MECL, 4th Floor,
Dr. Ambedkar Bhavan, Seminary Hills,
Nagpur. : APPELLANT
...VERSUS...
Respondent No.1 is
1. Sudhakar s/o. Maroti Amade (deleted)
deleted as per Courts
order dt.4.7.2017. Age 46 years, Occ.- Labour.
2. Sau. Sheela w/o. Maroti Amade,
Age 47 years, Occ.-Household.
3. Ku. Madhuri d/o. Sudhakar Amade,
Age 15 years, Occ.: Education.
4. Ku. Bhagyashree d/o. Sudhakar Amade,
Age 15 years, Occ.- Education.
Respondent Nos.3 and 4 minor
representing by his natural
Guardian Father i.e. non-applicant No.1.
All R/o. In front of Government Hospital
Kothari, Tah. Ballarpur,
District - Chandrapur.
5. Namdeo s/o. Gajanan Butale,
Age-Nil, Occ.-Owner of Vehicle,
R/o. Kothari, Tahsil Ballarpur,
Distt. Chandrapur. : RESPONDENTS
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Shri Sahare h/f. Shri S.S. Sanyal, Advocate for the Appellant.
Shri B.B. Raipure, Advocate for the Respondent Nos.1 to 3.
Ms. Aakanksha h/f. Shri Anilkumar, Advocate for the Respondent No.5.
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CORAM : S.B. SHUKRE, J.
rd
DATE : 3
NOVEMBER, 2017 &
nd NOVEMBER, 2017.
ORAL JUDGMENT :
1. These appeals are being disposed of by a common judgment
as the claims involved in these appeals arise out of the same accident and
the issues involved are also common.
2. These appeals question the legality and correctness of the
judgment and order dated 30th August, 2005 , rendered in MACP
Nos.133/2002, 132/2002 and Judgment and order dated 31 st August,
2005, rendered in M.A.C.P. Nos.134/2002, 135/2002, by the Motor
Accident Claims Tribunal, Chandrapur.
3. These four appeals have been filed taking an objection that in
cases like these, no order of pay and recover could have been passed by
the Tribunal against the appellant.
4. I have heard Shri Sahare holding for Shri S.S. Sanyal, learned
counsel for the appellant in all these appeals, Shri B.B. Raipure, learned
counsel for the claimants in these appeals and Ms. Aakanksha holding for
Shri Anilkumar, learned counsel for the owner of the offending vehicle.
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(For the sake of convenience, the appellant, claimants and the owner are
being hereinafter referred to as the insurance company, claimants and
owner of the offending vehicle respectively.)
5. I have also gone through the record of these cases including
the impugned judgment and order.
6. Now, following points arise for my determination :
i) Whether the insurance company is liable to pay
compensation and if not, whether it could be directed
to first pay and recover later ?
ii) Whether the compensation awarded by the Tribunal is
just and proper ?
7. It is seen from the record that the accident in the present case
occurred on 10th May, 2002, when a mini-truck bearing registration
No.MH-34-A-6503 belonging to the cross-objector/owner of the
offending vehicle and insured with the appellant carrying 31 passengers
in its body, bumped off the speed breaker on Ballarpur to Alapalli road,
near village Enbodi at about 10.30 p.m. As a result, several passengers of
the truck sustained injuries and some of them later on succumbed to
those injuries. In the present appeals, which involve death claims, the
deceased were Dinesh Paikaji Lambade (First Appeal No.357/2006),
Firoz Sheikh Mohammad Kureshi (First Appeal No.718/2006), Jahir
Sheikh Daut Sheikh (First Appeal No.727/2006) and Santosh Sudhakar
Amade (First Appeal No.729/2006). At the time of their death, they
were aged about 18 years, 20 years, 22 years and 20 years respectively.
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The claim petitions under Section 166 of the Motor Vehicles Act were
filed by their parents and other dependents. The owner as well as the
insurance company resisted these claim petitions by filing their respective
written statements. However, no evidence was adduced by either the
owner of the offending vehicle or by the insurance company in support of
their respective defences. On merits of the cases, the Tribunal found that
the claimants were entitled to receive compensation only from the owner
of the offending vehicle, but also found that in the facts of these cases,
the insurance company should first pay the compensation amount and
then recover it from the owner of the offending vehicle. Accordingly, the
claim petitions were partly allowed and the impugned judgments and
orders were passed.
8. It is the contention of the learned counsel for the appellant
that since there was a fundamental breach of the insurance policy no
order of pay and recover later should have been passed against the
insurance company by the Tribunal. Learned counsel for the owner of
the offending vehicle submits that the deceased persons being the
representatives of the owner of the goods being carried by the offending
vehicle, their risk was covered under the insurance policy and,
therefore, the insurance company should also have been held to be liable
to pay compensation along with the owner of the offending vehicle. She
also submits alternately that she supports the order of pay and recover
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passed by the Tribunal. In the opinion of the learned counsel for the
claimants, although the order of pay and recover is properly passed, the
compensation granted in the present case is inadequate and even though
in these appeals, no cross-objection has been filed by any of the
claimants, as held in the case of Jitendra Khimshankar Trivedi and
others vs. Kasam Daud Kumbhar and others, reported in 2015(1)
T.A.C. 673 (S.C.), this Court would have to consider granting of fair and
reasonable compensation and as such, it can certainly enhance the
compensation awarded by the Tribunal.
9. I would have accepted argument of learned counsel for the
owner of the offending vehicle that the deceased persons were travelling
by the offending vehicle as representatives of the goods being
transported by the vehicle, had there been any evidence based upon a
specific plea taken in that regard present on record of the case. In the
present case, only one witness has been examined in each of the cases
and the witness has been examined in each of these cases only by the
respective claimants. No witness has been examined by the owner of the
offending vehicle. The owner of the offending vehicle, has not raised any
specific plea that the driver of the offending vehicle carried the
passengers without his knowledge. It was also not his case that he did
not give the offending vehicle to Gohokar or Bahekar family on hire and
it was also not his case that deceased persons were travelling by the
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offending vehicle as owners of the goods or representatives of the owner
of the goods. No specific pleas in this regard were taken and as said
earlier, there has been no evidence adduced in this regard and it could
also not have been adduced in the absence of any specific defence having
been taken by the owner of the offending vehicle. In such a case, it has
to be held that the deceased persons were travelling by the offending
vehicle only as gratuitous passengers. Now the question would be
whether any risk of gratuitous passengers was covered under the
insurance policy and the answer, considering the evidence available on
record, has to be recorded as in the negative. The premium that was
accepted was for covering the liability arising out of damage to the
vehicle and also out of any injuries or death claims in respect of the
driver, coolie or other employees, in connection with the maintenance,
operation or loading and unloading of the goods from the motor vehicle,
which included in all six persons. Obviously, risk of gratuitous
passengers was not covered under the insurance policy. The Tribunal has
made a detailed discussion in this regard in its impugned judgment and
order by referring to the evidence available on record as well as the
insurance policy and certificates of insurance. The Tribunal has found
that the insurance policy does not cover the liability of the gratuitous
passengers and in the context of what has been noted earlier I have no
reason to take any different view.
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10. Such being the nature of evidence, the inevitable conclusion
would be that the risk of the gratuitous passengers which the deceased
persons were in the present case, was not covered by the insurance policy
and, therefore, it has been rightly held by the Tribunal in all these four
cases that the insurance company was not liable to pay any compensation
to the dependents of the deceased persons, who filed claim petitions
under Section 166 of the Motor Vehicles Act.
11. Now, what falls for consideration is, whether the order of pay
and recover could have been passed or not in the present cases. There is
no dispute about the fact that such an order in principle can be passed by
the Tribunal. There is also no dispute about the fact that it is not that in
every case such an order, as a matter of course, must be passed by the
Tribunal. In the present cases, the Tribunal has passed such an order by
exercising its discretion. If some discretionary relief has been granted by
a Court below, it would not be proper for this Court to withdraw the
relief so granted unless it is shown that such discretion was not available
or that it has been exercised in an arbitrary or manifestly illegal manner.
Such relief cannot be surely taken away just because another view is
possible. Learned counsel for the insurance company could not show to
me that the relief so granted by the Tribunal is manifestly illegal or is the
result of arbitrariness committed by the Tribunal. Another view of not
granting such a relief may be possible but only because such a view is
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possible, it would not be appropriate for this Court to take that view,
especially when arbitrariness or commission of patent illegality is not
seen. Therefore, I do not see any reason for making interference with the
order of pay and recover passed by the Tribunal against the insurance
company in all these four cases. The first point is answered accordingly.
12. In each of these four appeals, a cross-objection had been filed
only by the owner of the offending vehicle and that too on the point of
need for imposition of liability also upon the insurance company. All
these cross-objections stood dismissed for want of removal of office
objections within a permissible limit, by the order of Registrar (Judicial)
of this Court. The claimants, however, have not filed any cross-objection
in order to seek enhancement in compensation. But, as held by the
Hon'ble Apex Court in the case of Jitendra Khimshankar Trivedi and
others vs. Kasam Daud Kumbhar and others, reported in 2015(1)
T.A.C. 673(S.C.), the mandate of Section 168 of the Motor Vehicles Act
being to "pass awards determining the amount of compensation as to be
fair and reasonable and accepted by the legal standards."
notwithstanding no appeal or cross-objection having been filed by
claimants, "it is obligatory on the part of Courts/Tribunals to award just
and reasonable compensation." I am, therefore, of the view that learned
counsel for the claimants in all four cases can be heard on the question of
grant of just and fair compensation even if it means granting enhanced
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compensation without filing of appeal or cross-objection and accordingly,
the hearing has been granted not only to the claimants, but also to the
insurance company and the owner of the offending vehicle.
13. It is submitted by the learned counsel for the claimants that
the income of the deceased persons has not been appropriately
determined, however, I do not see any merit in the contention. In these
four cases, only one witness each has been examined by the claimants
and their evidence suggests that all the deceased persons were in the age
group of 18 to 22 years and were students. Some of the witnesses have
stated additionally that they were also working as labourers. But, such
additional evidence cannot be accepted once it is asserted by the
witnesses themselves that the deceased persons were studying either in
10th Standard or 12th Standard. While pursuing such kind of education,
performance of labour work is not possible as attendance in the
schools/colleges is compulsory and it is for substantial number of hours
during day time of every academic day. Therefore, the concept of
notional income would have to be employed in the present case and it
has been rightly adopted by the Tribunal. Going by the principle of
notional income, the Tribunal has determined the income of each of the
deceased persons to be at Rs.15,000/- p.a. and deducting 1/3 rd amount
for the own expenses, the Tribunal has arrived at the annual dependency
to be at Rs.10,000/- p.a. The Tribunal has applied the multiplier of '13'
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or '15' in these cases. However, in all these cases, the Tribunal has not
considered any income on account of future prospects. It is also seen
that the selection of multiplier was not based upon the case of Sarla
Verma (Smt.) and others vs. Delhi Transport Corporation and
another, reported in (2009) 6 SCC 121. Therefore, a correction in this
regard seems necessary which is made in the subsequent paras.
14. Annual income on notional basis of the deceased persons
would have to be taken at Rs.15,000/- p.a. Since this income has been
determined by considering the deceased persons to be falling in the
category of self employed persons as eventually they would have at least
earned their livelihood by performing labour work, addition of 40% of
the established income would have to be made as per the latest law of
the Hon'ble Apex Court laid down in the case of National Insurance
Company Limited vs. Pranay Sethi and others, passed in Special
Leave Petition (Civil) No.25590 of 2014, decided on 31st October,
2017. The appropriate multiplier as per Sarla Verma's case would have
to be applied. In addition, amount of Rs.15,000/- as per Pranay Sethi
and others (supra) on account of funeral expenses will also have to be
allowed. However, no compensation can be granted under the other
additional heads of loss of consortium and loss of estate, as the deceased
were unmarried and students whose income has been determined on
notional basis. Thus, calculated the compensation payable to the
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claimants in all these four appeals would be as follows :
First Appeal No.357/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18' X 18
(deceased was 18 years at the
time of accident (10,500 X 18)
----------------
Rs.1,89,000/-
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
=======
First Appeal No.718/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18' X 18
(deceased was 20 years at the
time of accident (10,500 X 18) ----------------
Rs.1,89,000/-
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
=======
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First Appeal No.727/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18'
(deceased was 22 years at the X 18
time of accident (10,500 X 18) -----------------
Rs.1,89,000
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
=======
First Appeal No.729/06 :
Annual income Rs.15,000/-
+ 40% Rs. 6,000/-
---------------
Rs.21,000/-
(-) one-half, deceased being unmarried Rs.10,500/-
----------------
Rs.10,500/-
Appropriate multiplier '18' X 18
(deceased was 20 years at the
time of accident (10,500 X 18) ----------------
Rs.1,89,000/-
+ Funeral expenses Rs. 15,000/-
-----------------
Total Compensation Rs.2,04,000/-
=======
15. Thus, in each of these cases, the claimants would be entitled
to receive the afore-stated amounts as final compensation inclusive of no
fault liability amount together with interest at the rate of 9% p.a. from
the date of petition till actual realization from the cross-objector/owner
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of the offending vehicle.
16. However, in the interest of justice, the insurance company
i.e. appellant in all these appeals would also have to be directed to first
pay the compensation amount to the claimants and then recover it later
from the owner of the offending vehicle in accordance with law. The
second point is answered accordingly.
17. In the circumstances, the appeals would have to be
dismissed, with slight modification of the impugned judgment and order
as made in the subsequent paragraph.
18. The appeals stand dismissed.
19. Oral prayer made by the claimants in these appeals for grant
of just and fair compensation, however, is granted in the following terms :
(A) In First Appeal No.357/2006, the claimants shall
be entitled to receive Rs.2,04,000/- as compensation together with
interest at the rate of 9% p.a from the date of petition till actual
realization, which shall be inclusive of amount on account of no fault
liability from the owner of the offending vehicle.
(B) In First Appeal No.718/2006, the claimants shall
be entitled to receive Rs.2,04,000/- as compensation together with
interest at the rate of 9% p.a from the date of petition till actual
realization, which shall be inclusive of amount on account of no fault
liability from the owner of the offending vehicle.
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(C) In First Appeal No.727/2006, the claimants shall
be entitled to receive Rs.2,04,000/- as compensation together with
interest at the rate of 9% p.a from the date of petition till actual
realization, which shall be inclusive of amount on account of no fault
liability from the owner of the offending vehicle.
(D) In First Appeal No.729/2006, the claimants shall
be entitled to receive Rs.2,04,000/- as compensation together with
interest at the rate of 9% p.a from the date of petition till actual
realization, which shall be inclusive of amount on account of no fault
liability from the owner of the offending vehicle.
22. In the interest of justice, the insurance company i.e. the
appellant is directed to first pay compensation so determined by this
judgment to the claimants in each of the appeals and recover it later from
the owner of the offending vehicle in accordance with law.
23. It is directed that the amounts deposited by the insurance
company in this Court shall be transferred to the Reference Court and the
Reference Court shall not allow the claimants to withdraw these amounts
till the owner of the offending vehicle furnishes security for the entire
amount of compensation granted in each of these cases and all the
directions given by the Hon'ble Apex Court in the case of Pramod Kumar
Agrawal and another vs. Mushtari Begum (Smt) and others, reported
in (2004) 8 SCC 667 are complied with.
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24. Additional Court fees, if any, shall be paid within two months
from the date of order in each of the appeals.
JUDGE
okMksns
