National Insurance Co. Ltd vs Shakuntala Vishwanath Varma And ... on 13 September, 2017
Bench: K.L. Wadane
FA 254-09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.254 OF 2009
National Insurance Company Ltd., ... Appellant
Through its Divisional Manager, (Original
Divisional Office, Hajari Opponent
Chembers, Station Road, No.2)
Aurangabad.
VERSUS
1 Shakuntala Vishwanath Varma,
Age 57 years, Occu: Household
2 Pravin Vishwanath Varma,
Age 37 years,
3 Purushottam Vishwanath Varma
Age 30 years,
4 Harikisan Nathmal Varma (Dead) ... Respondents
Through legal heirs- (1 to 4 Orig
A) Subhash s/o Harikisan Varma Petitioners/
Age 35 years, Occu: Business Claimants)
B) Deepak s/o Harikisan Varma
Age 30 years, Occu: Business
R/1to4- R/o Sangamner, Tq.
Sangamner, Dist. Ahmednagar
5 Santosh s/o Mansuklal Pipada, ...
Age Major, occu: Owner of the (Original
Tanker, R/o Vanjar Gali, Opponent
Ahmednagar Tq.& Dist. Ahmednagar No.1)
Mr. S. V. Kulkarni, Advocate for the appellant
Mr. D. R. Jayabhar, Advocate for respondents 1 to 4
Mr. S. R. Deshpande, Advocate for Respondent No.5.
CORAM : K. L. WADANE, J.
DATE : 13.09.2017
JUDGMENT:
FA 254-09.odt
1. Present appeal is preferred by the appellant-
insurance company against the judgment and order passed
by the Motor Accident Claims Tribunal, Sangamner, Dist.
Ahmednagar in M.A.C.P. No.192/2004, dated 24.10.2008.
The parties are referred to by their original status.
2. The petitioners/claimants have filed Claim
Petition under Section 166 of the Motor Vehicles Act on
account of accidental death of Vishwanath Harikishan
Varma. According to the claimants, on 13.10.2004
Vishwanath was traveling in a bus bearing No. MH-20-B-
5466. When the bus reached near village Nila shivar on
Parali to Gangakhed Road, one Tanker bearing No. MH-16-
B-2349 came from opposite side in high and excessive
speed and it gave dash to the Bus. Due to dash, the
passengers sustained injuries and three passengers were
expired. The deceased Vishwanath was one of them. It
is further contended that the accident occurred due to
rash and negligent driving of the Tanker driver.
According to the claimants, the deceased was serving as
teacher and his salary was Rs.15,339/- per month. In
addition to that, the deceased was earning Rs.10,000/-
per month by assisting the painting work of his father
and therefore, the claimants have claimed compensation
of Rs.10,00,000/-.
FA 254-09.odt
3. The claim of the claimants was resisted by the
opponent Insurance Company contending that the
owner/driver of the vehicle i.e. Tankar has committed
breach of the terms and conditions of the policy so
also there was negligence on the part of the Tanker
driver. Age and income of the deceased is also denied.
4. In order to establish the claim, petitioner
No.3 entered in to the witness box and has deposed in
the line of the contents in the petition and produced
the documents, collectively exhibited at Exh.3 i.e.
First Information Report, Spot Panchanama, Salary
Certificate and other relevant documents. As against
this, no evidence is adduced on behalf of the opponent
insurance company.
5. Considering the evidence on record and upon
hearing both the sides, the learned Tribunal has
awarded compensation of Rs.9,04,096/- to the claimants
and both the opponents i.e. owner and Insurer of the
Tanker were directed to pay such amount jointly and
severally together with 9% interest.
6. I have heard Mr. S. V. Kulkarni, learned counsel
for the appellant, Mr. D. R. Jayabhar, learned for
respondents 1 to 4/claimants and Mr. S. R. Deshpande,
FA 254-09.odt
learned counsel for Respondent No.5/owner and with the
assistance of learned counsel, gone through the oral as
well as documentary evidence placed on record.
7. To consider the first ground of appeal i.e.
contributory negligence of both drivers, it is material
to note that no oral evidence is adduced on behalf of
the opponent Insurance company to prove some negligence
on the part of bus driver. On the contrary, from the
documents, placed on record, i.e. copy of the first
information report, it reveals that the concerned
police have registered offence against the Tanker
driver for rash and negligence driving. On perusal of
the spot panchanama, it appears that the bus was
proceeding towards east side and tanker was proceeding
towards west side and there was a brushing dash
between two vehicles. It also reveals from the spot
panchanama that at the spot of accident, width of road
is 20 feet having 5 feet Kacchha road to both sides.
So, at least 30 feet road was available for both the
vehicles through which, both the vehicles could have
passed easily, if at all the tanker driver had taken
care to slow down his vehicle. From the contents of
spot panchanama, it further appears that the bus was at
its extreme left side. On the contrary, the tanker
FA 254-09.odt
went wrong side and gave dash to the bus. So looking
to the documents on record, it is crystal clear that
the accident occurred due to the sole negligence of
the Tanker driver and there is no evidence on record to
show that there was negligence on the part of the bus
driver.
8. So far as quantum of compensation is concerned,
though Claimant No.3 has deposed that besides the
salary, the deceased was earning Rs.10,000/- per month
by assisting his father in painting business and other
allied work, however, no evidence is produced on record
to prove the earning of the deceased to the extent of
Rs.10,000/- per month from the business of his father.
Salary certificate of the deceased is placed on record
and from the same, it appears that deceased was earning
monthly salary of Rs.15,339/-. This fact has not been
disputed.
9. On perusal of the reasons recorded by the
learned Tribunal, it appears that the learned tribunal
has not taken into consideration the claim of the
claimants regarding earning of the deceased from the
contribution of business of his father. The learned
Tribunal has rightly accepted the monthly salary of
FA 254-09.odt
the deceased which is based upon the documentary
evidence. The learned Tribunal has also rightly
deducted the income tax, professional tax and arrived
at the conclusion that annual income of deceased was
Rs.11,012/-. Considering the age and period of
remaining service of the deceased, the learned tribunal
has rightly applied the appropriate multiplier and has
arrived at the correct conclusion.
10. So on careful scrutiny of the amount of
compensation under each head, it appears that the
learned Tribunal has taken into consideration the
evidence on record and has rightly awarded the
compensation. Therefore, there is no substance in the
appeal and therefore it is liable to be dismissed and
accordingly it is dismissed. No order as to costs.
(K. L. WADANE, J.)
JPC
