National Insurance Col Ltd vs Akrur Udhav Gholve And Ors
2017 Latest Caselaw 6968 Bom

                                  1                   FA NO.528 OF 2014


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                   FIRST APPEAL NO.528 OF 2014

           National Insurance Co.Ltd., having
           it's registered office at 3, Middleton
           Street, Kolkata; a branch office at
           Latur and a Divisional Office at
           Solapur; NOW through it's Divisional
           Office at Hazari Chambers, Station
           Road, Aurangabad.
                                                ...APPELLANT
                                              (Orig.Respdt.No.2)
                  VERSUS

  1.       Akrur s/o Udhav Gholve,
           Age 27 years, Occu. Labourer;
           R/o. Sonarwadi, Tq. Washi,
           Dist. Osmanabad.

  2.       Rekha w/o Akrur Gholve,
           Age 24 years; Occu. Household,
           R/o Sonarwadi, Tq. Washi,
           Dist. Osmanabad.
                                     ...RESPONDENTS
                                     (Orig.Claimants No.1 & 2)
  3.       Jagannath s/o Maruti Pade,
           Age: Major, Occu: Business;
           R/o Pimpri (Shiradhon), Tq.
           Kallam, Dist. Osmanabad.
                                     (Orig.Respdt.No.1)
           (Since deceased)
           THROUGH HIS L.R.

           (a)   Chandrakant s/o Jagannath Pade,
                 Age 36 years, Occ. Business,
                 R/o Pimpri (Shiradhon) Tal.Kallam,
                 Dist.Osmanabad.
           (Amendment in terms of order of Hon'ble Court
            dt.05.02.14 on C.A.No.718/10).
                                           ...RESPONDENTS



::: Uploaded on - 11/09/2017               ::: Downloaded on - 12/09/2017 02:03:00 :::
                                          2                    FA NO.528 OF 2014

  Shri R.C.Bora, Advocate, h/f Mr. P.P.Bafna, Advocate for
  appellant.
  Mr. V.S.Tanwade, Advocate, for respondent nos. 1 & 2.
  Shri S.A.Wakure, Advocate, for respondent no.3.
                            ...
                         CORAM: P.R. BORA, J.

                               ***
           Date of reserving the judgment:13/7/2017
           Date of pronouncing the judgment: 11/9/2017
                                        ***
  JUDGMENT:

1. The Insurance Company has filed the present

appeal challenging the judgment and award passed by the

Motor Accident Claims Tribunal at Osmanabad in

M.A.C.P.No.96/2003 decided on 9.10.2007.

2. Present respondent nos. 1 and 2 had filed the

aforesaid claim petition claiming compensation on account

of death of their daughter in a vehicular accident happened

on 26.3.2003 having involvement of a tractor bearing

registration No.MH-25-B-2723, owned by respondent no.3

and insured with the appellant Insurance Company. It was

the case of the claimants that their daughter named Swati

was dashed by the offending tractor and in the accident so

happened, she died on the spot. As contended in the

petition, deceased Swati was aged about four years at the

3 FA NO.528 OF 2014

time of her death. The claimants had alleged that the

accident occurred because of rash and negligent driving of

the offending tractor by its driver and, therefore,

compensation of Rs.2,25,000/- was claimed by them

jointly and severally from the owner and insurer of the

said tractor. The claim petition was resisted by the

Insurance Company on various grounds, including that of

breach of policy conditions by the owner of the tractor.

Learned Tribunal, after having assessed the oral as well as

documentary evidence on record, held the claimants

entitled for the compensation of Rs.2,25,000/- jointly and

severally from the owner and insurer of the offending

tractor. The Tribunal has passed a further order entitling

the Insurance Company to recover the amount of

compensation, which may be paid by it to the claimants,

from the owner of the tractor. Aggrieved by the

judgment and award as aforesaid, the Insurance Company

has filed the present appeal.

3. Heard Shri R.C.Bora, learned Counsel holding

for Shri P.P.Bafna, learned Counsel appearing for the

Insurance Company, Shri V.S.Tanwade, learned Counsel

4 FA NO.528 OF 2014

appearing for respondent no.2 and Shri S.A.Wakure,

learned Counsel appearing for respondent no.3. Perused

the impugned judgment and the other material available

on record.

4. In the memo of appeal, the Insurance Company

though has challenged the impugned judgment on various

grounds, at the time of hearing of the appeal the learned

Counsel for the appellant Insurance Company pressed only

one ground that the amount of compensation as awarded

by the Tribunal is unreasonable. The learned Counsel

submitted that the Tribunal has grossly erred in adopting

multiplier method for determining the amount of

compensation in case of the deceased girl who was aged

about four years. The learned Counsel, placing his reliance

on the judgment of the Honourable Apex Court in the case

of Oriental Insurance Co.Ltd. vs. Syed Ibrahim & Ors

( 2007 AIR SCW 6197), submitted that, at the most, the

compensation of Rs.51,500/- as was awarded in the said

case, could have been awarded in the present case.

Learned Counsel, therefore, prayed for modification in the

impugned award to the aforesaid extent and allow the

5 FA NO.528 OF 2014

appeal of the Insurance Company to that extent.

5. Learned Counsel appearing for the respondents

supported the impugned judgment and the award.

6. After having considered the submissions made

on behalf of the learned Counsel appearing for the

appellant Insurance Company, and on perusal of the

impugned judgment, it does not appear to me that any

case is made out by the appellant Insurance Company so

as to cause interference in the impugned judgment and

award. Perusal of the impugned judgment shows that,

relying upon the judgments of the Honourable Apex Court

in the case of Manju Devi Vs. Musafir Paswan (2005 (1)

T.A.C. 609 ( Supreme Court)), and U.P. State Road

Transport Corporation Vs. Trilok Chandra ( 1996 A.C.J.

831) (SC), the learned Tribunal has adopted the multiplier

method for determining the amount of compensation and

has accordingly determined the amount of compensation

to the tune of Rs.2,25,000/-.

7. Having regard to the quantum of compensation,

it does not appear to me that present is the case where

6 FA NO.528 OF 2014

the Insurance Company should have indulged in filing an

appeal. The amount as has been awarded by the Tribunal

cannot be, in any sense, said to be exorbitant or

unreasonable. There cannot be a dispute that the

compensation must be just and it cannot be a bonanza,

not a source of profit. As has been observed by the

Honourable Apex Court in the case of Oriental Insurance

Co.Ltd. vs. Syed Ibrahim & Ors, (cited supra), the Courts

and Tribunals have a duty to weigh the various factors and

quantify the amount of compensation, which should be

just. As has been observed by the Honourable Apex Court,

what would be 'just" compensation is a vexed question.

There can be no golden rule applicable to all cases for

measuring the value of human life or a limb. Measure of

damages cannot be arrived at by precise mathematical

calculations. Every method or mode adopted for assessing

compensation has to be considered in the background of

'just" compensation which is the pivotal consideration. No

doubt, as has been further cautioned by the Honourable

Apex Court, though a wide discretion is vested in the

Tribunal, the determination has to be rational, and is to be

done by a judicious approach and not the outcome of

7 FA NO.528 OF 2014

whims, wild guesses and arbitrariness. The impugned

judgment, considered in the light of the broad guidelines

as provided by the Honourable Apex Court, referred

hereinabove, does not appear to be arbitrary. It further

does not appear to me that the Tribunal has in any way

exercised the discretion vested in it in an unfair manner.

A possible view has been taken by the Tribunal. In such

circumstances, it does not appear to me that any

interference is warranted in the impugned judgment and

award. It has to be further stated that the Tribunal has

also passed an order entitling the Insurance Company to

recover the amount of compensation from the owner of

the offending vehicle. The owner of the offending vehicle

has, admittedly, not filed any appeal against the impugned

judgment and award. In that view also, I am not inclined

to cause any interference in the impugned judgment and

the award. In the result, the following order is passed:

ORDER

1. The First Appeal is dismissed, however, without

any order as to the costs.

8 FA NO.528 OF 2014

2. The amount, if any, deposited by the appellant

Insurance Company in this Court is permitted to be

withdrawn by the original claimants and if any of them is

expired, and is survived by the legal representative, by the

said legal representative, if already not withdrawn.

(P.R.BORA) JUDGE ...

AGP/528-14fa