The Branch Manager National ... vs Anandkrishna Singh Shivnarayan ...
2017 Latest Caselaw 7515 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                NAGPUR BENCH : NAGPUR



First Appeal No. 565 of 2009 



Appellant :             The Branch Manager, National Insurance 

                        Company Limited, Motor Stand, Kamptee, 

                        District Nagpur

                        Versus

Respondents:            1)  Anandkrishna Singh s/o Shivnarayan Singh, aged

about 46 years, Occ: Service in WCL

2) Geetasingh w/o Anandkrishna Singh... Deleted

3) Ritu w/o Pravin Agrawal, aged Major, Occ:

Owner, resident of Shop No. 26/A, Nagpur OR

Prabhat Hospital, Lala Oli, Kamptee, District

Nagpur

Shri S. N. Dhanagare, Advocate for appellant

Shri P. S. Mirache, Advocate for responents no. 1 and 2

None appears for respondent no. 3

Coram : S. B. Shukre, J

Dated : 25th September 2017

Judgment

1. This appeal challenges legality and correctness of the

judgment and order dated 18th December 2007 rendered in Claim

Petition No. 1042 of 2000 by the Motor Accident Claims Tribunal,

Nagpur.

2. The accident in the present case occurred on 9.10.2000 at

about 13.45 hours. At that time, deceased Amiteshkrishna was

proceeding on his Hero Honda motorcycle bearing registraion No. MH-

31/AN-326 by maintaining himself on correct side of the road. When

his motorcycle came near Zone-1 Officer Bungalow near T-Point, the

offending vehicle viz. Truck bearing MH-31/W-4165 came from the

opposite side and hit the motorcycle of the deceased head-on. The

deceased sustained injuries and died of those injuries. Respondent no. 1

and respondent no.2 (deleted since dead) were parents of the deceased

and respondent no. 3 and present appellant were owner and insurer

respectively of the offending vehicle. Parents of the deceased filed claim

petitition under Section 166 of the Motor Vehicles Act seeking

compensation for the loss they suffered on account of untimely death of

their son. The claim petition proceeded ex parte against respondent no. 3,

but it was resisted by the appellant. On merits of the case, the Tribunal

allowed the claim petition and granted compensation of Rs. 9,27,000/- to

the parents of the deceased which was inclusive of no fault liability,

together with interest @ 7.5% per annum from the date of petition till

realization payable by appellant and respondent no. 3 jointly and

severally, by the judgment impugned herein.

3. I have Shri S. N. Dhanagare, learned counsel for the

appellant and Shri P. S. Mirache, learned counsel for respondents no. 1

and 2. None appears for respondent no. 3 though served. I have gone

through the impugned judgment including record and proceedings. Now,

the following points arise for my determination:

(1) Whether there was any contributory negligence

on the part of deceased Amiteshkrishna towards

causing of the accident ?

(2) Whether the compensation granted by the

Tribunal is just and proper ?

4. On going through the evidence available on record, I find

that there is no scope to make interference with the finding recorded by

the Tribunal that the accident occurred due to sole negligence of the

driver of the offending truck. Although P.W. 1 Anandkrishna had no

personal knowledge about the accident, documentary evidence in the

nature of First Information Report registered against the driver of the

offending vehicie (exhibit 26), spot panchanama (exhibit 27), inquest

panchanama (exhibit 28) and post-mortem report (exhibit 29) together

show that the accident occurred only because of rash and negligent

driving by the driver of the offending truck. In the circumstances, it was

necessary for the Insurance Company to have examined driver of the

offending truck. No effort in this regard was made by the insurer.

Therefore, adverse inference would have to be drawn against the

appellant and it would be that it did not examine driver of the offending

truck because the driver was solely responsible for causing of the

accident, which I do so now. Accordingly, point no. 1 is answered as in

the negative.

5. Learned counsel for the appellant submits that admittedly,

deceased was not earning anything, but was a student of BDS or Dental

Course and, therefore, compensation of Rs. 9,27,000/- ought not to have

been taken in the present case. He submits that such future earning of

the deceased could have been a possibility or could not have been a

possibility, but nothing could have been said with certainty about the

possibility becoming a reality and as such, he further submits that the

Tribunal ought to have have considered the notional income of the

deceased. Learned counsel for the respondents no. 1 and 2 submits that

future income of medical student like the deceased can always be taken

and it has indeed been considered in various cases. He submits that such

approach of the Tribunals has been approved by the Hon'ble Apex Court

in the case of Ashvinbhai Jayantilal Modi v. Ramchandra Sharma &

anr reported in 2014 Mh. L. J. 481 wherein the future income of a

medical student was taken to be at Rs. 18,000/- per month.

6. In the present case, on the point of income, there is only

evidence of P.W. 2 Dr Vinay who was serving as Dean of the Government

Dental College who deposed that deceased Amiteshkrishna was a bright

student of the BDS course. There is nothing in his evidence to entertain

doubt about such a statement made by him. So, it has to be said that

there was a reasonable possibility of the deceased earning Rs. 10,000/-

per month in future and this has been rightly considered by the Tribunal.

Even in the case of Ashvinbhai (supra), the Hon'ble Apex Court has

considered the future income of a MBBS student @ Rs. 18,000/- per

month who had met with accident in July 2002. In the present case, the

accident occurred on 9.10.2000 and, therefore, future income of the

deceased at Rs. 10,000/- per month taken by the Tribunal could not be

found to be erroneous or fanciful. The argument of learned counsel for

the appellant is, therefore, rejected.

7. As regards the other calculations made by the Tribunal in

arriving at final amount of compensation, I find no error in them and they

deserve to be confirmed.

8. In the circumstances, I am of the view that the compensation

awarded to the parents of the deceased by the Tribunal is just and fair.

The second point is answered as in the affirmative.

9. The appeal deserves to be dismissed and it is dismissed

accordingly. Parties to bear their own costs. Balance amount which is in

deposit of this Court be released with interest, if any, in favour of

respondent no. 1. Parties to bear their own costs.

S. B. SHUKRE, J

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