Bombay High Court
The Oriental Insurance Compnay ... vs Chindhuji S/O Laxman Jambhule & ... on 28 November, 2017
Bench: S.B. Shukre
J-fa814.06.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.814 OF 2006
The Oriental Insurance Company Limited,
Chandrapur Branch, through the Senior
Divisional Manager, Nagpur Division Office-I,
Mount Road, Sadar, Nagpur. : APPELLANT
...VERSUS...
1. Chindhuji s/o. Laxman Jambhule,
aged about 40 years,
Occupation : Labour
(Original Appellant No.1.)
2. Sau. Rekha w/o. Chindhuji Jambhule,
Aged about 35 years,
Occupation : Labour,
(Original Appellant No.2.)
Both r/o. Asala, Tah. Warora,
District Chandrapur.
3. Parshuram s/o. Wadiamal Daryanani,
r/o. 54/C, Type-3, Sector-3,
Ordinance Factory, Chanda,
Tah. Bhadrawati, District Chandrapur
(Original Non-applicant No.2.)
Appeal is dismissed 4. Arun s/o. Krushnarao Chandekar,
against Respondent aged Major, R/o. Bhanaapeth Ward,
No.4, vide Registrar (J) Chandrapur, Ta. And Distt. Chandrapur,
order dt.27.1.2015.
(Original Non-applicant No.3.) : RESPONDENTS
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Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondent Nos.1 & 2 and 3.
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CORAM : S.B. SHUKRE, J.
th
DATE : 28
NOVEMBER, 2017.
ORAL JUDGMENT :
1. This is an appeal which questions legality and correctness of
the judgment and order dated 16th June, 2006, rendered in Motor
Accident Claim Petition No.196/2003, by Member, Motor Accident
Claims Tribunal, Chandrapur. The respondent Nos.1 and 2 were the
parents of the deceased girl, Pratiksha, aged about 3 years, who died in a
vehicular accident, which took place on 15.10.2003 at about 1.45 p.m. at
village Asala on Shegaon-Temurda Road in front of Zilla Parishad School,
Asala, Tq. Warora, District Chandrapur. At that time deceased girl was
squatting by the side of the road to answer nature's call and was crushed
under the wheels of the offending vehicle, a truck bearing registration
No.MH-34-4045. After knocking down the girl, the offending vehicle
was not stopped at the spot of accident by its driver and it was taken
away by the driver without caring for the child which was knocked down
by it. But, some of the villagers had noted down the registration number
of the vehicle and accordingly they informed the number to the parents
of the deceased. The father of the deceased lodged a police report with
Police Station Shegaon giving registration number of the offending
vehicle as MH-34-4045. The offence punishable under Section 304-A
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I.P.C. was registered against the driver of the offending vehicle.
Meanwhile, the parents of the deceased filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988 (in short, "MV Act")
claiming compensation for the loss they suffered on account of untimely
death of their daughter, Pratiksha.
2. The claim petition was resisted by the appellant, original
respondent No.1, and also by the owner and driver of the offending
truck, the respondent Nos.3 and 4 in this appeal (petition has been
already dismissed against respondent No.4). It was the case of
respondent Nos.3 and 4 that they were owner and driver of the truck
bearing registration No.MH-34-A-4045 which was insured with the
appellant and it was not the truck involved in the accident in the present
case. Such defence of respondent Nos.3 and 4 was based upon
registration number mentioned in the F.I.R as well as spot panchanama.
Similar defence was also taken by the appellant. However, on merits of
the case, the Tribunal found no substance in the defence so taken and
partly allowing the petition by the impugned award granted
compensation of Rs.2,29,000/- together with interest at the rate of
6% p. a. from the date of petition till realization. Not being satisfied with
the same, the appellant is before this Court in the present appeal.
3. I have heard learned counsel for the appellant. Nobody
appears on behalf of respondent Nos.1 and 2, although duly served. The
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respondent No.3 is also absent. I have gone through the record of the
case including the impugned judgment and order.
3. Now, following points arise for my determination are :
i) Whether it is proved by the appellant that the truck
bearing registration No.MH-34-A-4045 was not involved
in the accident in the present case ?
ii) Whether the compensation granted by the Tribunal is
just and proper ?
4. In order to support his argument, learned counsel for the
appellant has taken me through the evidence available on record and
also the documentary evidence. The documentary evidence in the nature
of F.I.R. (Exh.-29) and the spot panchanama (Exh.-30) do disclose that
the informant had given the registration number of the offending vehicle
as MH-34-4045. There is no mention anywhere in these two documents
that it were the truck bearing registration No.MH-34-A-4045 which was
involved in the accident. This is also the position in another document,
which is a police report viz. "AA form" (Exh.-33). But, it is significant to
note that the police made investigation into the case and found that the
truck involved in the accident in the present case was owned by the
respondent No.3 and was insured with the appellant at the relevant time.
Of course, even after getting such information, police in its 'AA form'
report mentioned the registration number of the offending truck only as
MH-34-4045 and not as MH-34-A-4045. If the respondent No.3 was not
J-fa814.06.odt 5/7
the owner of the truck, whose registration number has been shown as
MH-34-4045 in Exh.-33, the respondent No.3 should have entered the
witness box and clarified the things before the Court accordingly. The
written statement filed by him shows that he was the owner of a truck
bearing No. MH-34-A-4045. If the police had ascertained the name of
the owner of one truck, which was of the respondent No.3 in the present
case, it is reasonable to think that the police must have done so by
considering the registration number of the offending vehicle as
MH-34-A-4045 and if it were not so, the name of owner of the offending
vehicle would have appeared to be of a different person. Therefore, I am
of the view that although the documentary evidence discloses that
registration number of the offending vehicle was MH-34-4045 simplicitor
without insertion of any alphabet 'A' in between, the registration number
has to be considered as MH-34-A-4045 and omission of alphabet 'A' must
be considered as inadvertent mistake on the part of the Police as well as
the informant. The finding recorded by the Tribunal in this regard,
therefore, cannot be faulted with and I confirm the same by holding that
the offending vehicle involved in the accident in the present case bore
registration No.MH-34-A-4045, owned by respondent No.3 and insured
with appellant at the relevant time. The first point is answered
accordingly.
5. As regards the quantum of compensation, I find myself in
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agreement with learned counsel for the appellant that in a case where
the deceased is a very small child below 10 years of age, the most
reasonable way to determine the compensation would be by doing some
guesswork based upon the facts of the case and assuming certain figure
in lump-sum as the reasonable amount of compensation, instead of
resorting to structured formula, as prescribed under schedule of Section
163-A of the MV Act. This is for the reason that it is very difficult in such
cases to assess the probable income that a child may earn on growing up
owing to several uncertainties involved in the development of the child.
This is the view taken by the Hon'ble Apex Court in the case of Oriental
Insurance Co. Ltd. vs. Syed Ibrahim and others, reported in AIR 2008
SC 103 referred to me by the learned counsel for the appellant.
Following the same, I find that in the instant case the compensation
determined by the Tribunal, which is based upon structured formula
method, cannot be sustained in the eye of law. The compensation of
Rs.2,29,000/- granted by the Tribunal certainly appears to be quite on
the higher side. Therefore, there is a need for making a fair and just
determination of the compensation that would be payable to the
respondent Nos.1 and2. Having regard to the age of the deceased, which
was of 3 years at the time of accident and also absence of any inputs
about the personality and the developmental prospects of the deceased
child, I am of the view that in a case like the present one, reasonable
J-fa814.06.odt 7/7
compensation would be of no more than Rs.1,00,000/- which I do grant
to respondent Nos.1 and 2 by this order, which shall be payable by the
appellant and the respondent No.3 jointly and severally together with
same interest as has been granted by the Tribunal for the same period,
which is at the rate of 6% p.a. from the date of petition till actual
realization. The second point is answered accordingly.
6. The appeal is allowed partly.
7. It is declared that respondent Nos.1 and 2 are entitled to
receive total compensation of Rs.1,00,000/- inclusive of no fault liability
amount together with interest at the rate of 6% p.a. from the date of
petition till realization and same shall be payable by the appellant and
respondent No.3 jointly and severally.
8. The appellant is permitted to withdraw that amount which is
found to be in excess of the amount granted as compensation under this
order.
9. The impugned judgment and award stand modified in the
above terms.
10. Parties to bear their own costs.
11. Appeal is disposed of accordingly.
JUDGE
okMksns
