Bombay High Court
The New India Assurance Co. Ltd., ... vs Shobhabai Sahebrao Waghchaure ... on 18 January, 2018
Bench: M.S. Sonak
(1) 916-FA 127 of 2017 & anr.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
916 FIRST APPEAL NO. 127 OF 2017
WITH
CA/596/2017 IN FA/127/2017
1) Shaikh Akhil Shaikh Ajmer
Age: 28 years, Occu.: Driver,
R/o.Pachod, Tq.Paithan,
Dist.Aurangabad.
2) Shaikh Kammu Shaikh Bhikan
Age: Major, Occu.: Owner,
Both R/o.Ekod Pachod, Tq. &
Dist.Aurangabad. ..Appellants
VERSUS
1) Shobhabai wd/o Sahebrao Waghchaure
Age: 55 years, Occu.: Household,
2) Manoj Sahebrao Waghchaure
Age: 55 years, Occu.: Labour
3) Sandip Sahebrao Waghchaure
Age: 27 years, Occu.: Labour
All R/o. Lane No.A-2/48, Gajanan
Nagar, Garkheda, Aurangabad.
4) New India Assurance Company Ltd.,
Through Divisional Manager,
Adalat Road, above Mahesh Auto,
Aurangabad. ..Respondents
...
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(2) 916-FA 127 of 2017 & anr.
Advocate for Appellants : Mr.Satej S.Jadhav
(in FA No.127 of 2017)
and Mr.M.M.Ambhore
(in FAST No.18170 of 2014)
Advocate for Respondent Nos.1 to 3/Claimants :
Mr.Rahul R. Karpe and Mr.Yogesh D. Kale
Advocate for Respondent No.4/Insurance Company :
Mr.Mohit Deshmukh
...
WITH
FIRST APPEAL STAMP NO.18170 OF 2014
WITH CA NO.11854 OF 2014 WITH CA NO.11855 OF 2014
...
CORAM : M.S.SONAK, J.
DATE : 18th January, 2018
ORAL JUDGMENT:-
1) Heard Mr.Satej Jadhav learned counsel for the
appellants, Mr.Yogesh Kale learned counsel for the
respondent Nos.1 to 3 (claimants) and Mr.Mohit Deshmukh
learned counsel for respondent No.4 (Insurance Company)
in First Appeal No.127 of 2017.
2) Heard Mr.M.M.Ambhore learned counsel for the
appellant Insurance Company, Mr.Yogesh Kale learned
counsel for respondent Nos.1, 2 and 3 (claimants) and
Mr.Satej Jadhav learned counsel for respondent No.4
(3) 916-FA 127 of 2017 & anr.
(owner) in First Appeal Stamp No.18170 of 2014.
3) Although, First Appeal Stamp No.18170 of 2014 is not
on board, with the consent of the parties, the same is
taken on board, since, the learned counsel for the
parties are agreed that this appeal will not survive in
the light of the order, which is supposed to be made in
First Appeal No.127 of 2017.
4) First Appeal No.127 of 2017 has been instituted by
the owner of the offending vehicle primarily on two
grounds:-
(a) The exoneration of the Insurance Company.
(b) The quantum of compensation.
5) On 4.1.2018, this Court has made the following
order:-
"1) The learned counsel for the appellants relied
upon the decision of the Hon'ble Supreme Court in
(4) 916-FA 127 of 2017 & anr.
the case of Nagashetty Vs. United India Insurance
Co. Ltd. and others [AIR 2001 SC 3356] to submit
that the person having licence to drive a Tractor
is not disqualified from driving a Tractor with
Trailer attached to it. He submits that the
Insurance Company i.e. respondent No.4 cannot be
absolved of the liability in the present case
only on the ground that driver of the Tractor had
no licence to specifically drive a Tractor with
Trailer attached to it, though, there is no
dispute that driver had a valid licence to drive
a Tractor.
2) Taking into consideration aforesaid
circumstances, issue fresh notice to respondent
No.4, returnable on 18.1.2018 for final disposal
of this appeal at the stage of admission. Place
the matter in supplementary board.
3) Mr.Yogesh Shinde who holds for Mr.R.R.Karpe
and 3.
4) Since, the condition subject to which,
interim relief was granted, has not been complied
(5) 916-FA 127 of 2017 & anr.
with by the appellants, it is clarified that the
interim relief stands vacated and/or is no longer
in operation.
sd/-
[M.S.SONAK, J.]"
6) The learned counsel for the appellants points out
that there are two further decisions in Sant Lal Vs.
Rajesh & Ors. [2017 (8) SCC 590] and Mukund Devangan Vs.
Oriental Insurance Co.Ltd. [2017 SCC Online SC 788],
which had taken the view that a person, who has licence
to drive a Tractor is not disqualified in driving a
Tractor with Trailer attached to it even though there may
have not beena formal endorsement on his licence to do
the same. In these two Judgments, the Hon'ble Apex Court
has held that it cannot be said that there is any
fundamental breach of the policy so as to exonerate the
Insurance Company.
7) Therefore, on the basis of the aforesaid decisions
of the Hon'ble Supreme Court, the impugned Award to the
(6) 916-FA 127 of 2017 & anr.
extend it exonerates the respondent No.4 from liability
is required to be interfered with. Accordingly, the
portion of the impugned award to the extent it exonerate
the Insurance Company is set aside. It is accordingly
declared that the respondent Nos.1, 2 and 3 in the Claim
Petition i.e. the owner, driver and the Insurance Company
are jointly and severally liable to pay the compensation
amount to the claimants.
8) So far as the quantum of compensation is concerned,
Mr.Satej Jadhav and Mr.Mohit Deshmukh learned counsel
submit that award under the heads of the consortium,
funeral expenses and loss of love and affection is
excessive and infact contrary to the law laid down by the
Constitution Bench of the Supreme Court in the case of
National Insurance Company Vs. Pranay Sethi and ors.
[2017 SCC Online SC 1270]. They submitted that as
against the head of loss of consortium maximum of
Rs.40,000/- may be granted, funeral expenses maximum
(7) 916-FA 127 of 2017 & anr.
amount of Rs.15,000/- could have been awarded. They
submit that no award has been made for love and
affection. Besides, they pointed out that the impugned
award has granted compensation of Rs.50,000/- each to the
claimants, which includes the wife of the deceased. They
pointed out that the wife of the deceased has been
granted compensation of Rs.1,00,000/- for loss of
consortium in addition to loss of love and affection.
Hence, they submit that it is a clear case of duplication
and therefore, constitutes error apparent on the face of
record.
9) Mr.Kale learned counsel for the claimants submits
that there is absolutely no bar to make an award towards
loss of love and affection. He submits that loss of love
and affection is distinct from loss of consortium and
therefore, there was no error in awarding compensation
towards love and affection. He points out the decision
of the Apex Court in case of Smt.Sarla Varma Vs. Delhi
(8) 916-FA 127 of 2017 & anr.
Transport Corporation [AIR 2009 SC 3104] for considering
the issue of compensation relating to loss of consortium
and funeral expenses. In view of the decision in the
aforesaid case, he submits that there is no case made out
to interfere in such compensation. Besides, no award has
been made towards loss of estate, even though Pranay
Sethi (supra) requires an award on this head. For all
these reasons, he submits that the appeal in so far as
quantum of compensation is concerned is liable to
dismissed.
10) Rival contentions now call for determination.
11) In the Judgment and award dated 11.1.2018 in First
Appeal No.1633 of 2017, this Court has already held that
compensation is due and payable towards loss of love and
affection. The reasoning in the said Judgment is
therefore, reiterated in the present Judgment and award.
However, the quantum of compensation towards loss of
(9) 916-FA 127 of 2017 & anr.
love and affection will have to be restricted to
Rs.25,000/- each in favour of Manoj and Sandip, the two
sons of the deceased, since, the wife, Shobhabai has
already been awarded compensation towards loss of
consortium, which will include loss of love and
affection. There is no question in making further award
towards loss of love and affection in case of Shobhabai.
To that extent, the submissions made by Mr.Satej Jadhav
and Mr.Mohit Deshmukh are required to be upheld.
Therefore, under the head of loss of love and affection,
the compensation will have to be restricted to
Rs.50,000/-.
12) Similarly, applying the law laid down by the
Constitution Bench in Pranay Sethi (supra), the
compensation towards loss of consortium will have to be
reduced from Rs.1,00,000/- to Rs.40,000/- and towards
funeral expenses from Rs.25,000/- to Rs.15,000/-.
However, as contended by Mr.Kale learned counsel, to this
( 10 ) 916-FA 127 of 2017 & anr.
amount, further amount of Rs.15,000/- will have to be
added towards loss of estate.
13) On this basis, the compensation comes to
Rs.3,44,028/-, which can be rounded up to Rs.3,50,000/-.
14) The First Appeal No.127 of 2017 will therefore, have
to be partly allowed. In the first place, it is held
that the Insurance Company i.e. respondent No.4 here is
also jointly and severally liable to pay compensation to
respondents/claimants. The compensation amount is
however, determined as Rs.3,50,000/- in place of the
determination of Rs.4,99,028/- made by the Tribunal. The
rest part of the impugned award to remain undisturbed.
15) The First Appeal Stamp No.18170 of 2014 had only
questioned the award in so far as no fault liability is
concerned. In view of the aforesaid circumstances, the
said Appeal will not survive and the same is also
disposed of.
( 11 ) 916-FA 127 of 2017 & anr.
16) The First Appeal No.127 of 2017, First Appeal Stamp
No.18170 of 2014 and the Civil Applications therein, are
disposed of in the aforesaid terms.
17) There shall be no order as to costs.
18) The respondents/claimants are permitted to withdraw
the amount deposited by the Insurance Company in First
Appeal Stamp No.18170 of 2014 together with interest
accrued thereon.
19) The Registry to accordingly do the needful in the
matter.
20) The appellants in First Appeal No.127 of 2017 are
permitted to withdraw the statutory deposit of
Rs.25,000/- made by them in this appeal.
21) The Insurance Company is directed to deposit the
( 12 ) 916-FA 127 of 2017 & anr.
compensation amount in terms of the impugned award as
modified in this Judgment and award, in this Court,
within a period of four weeks from today with due
intimation to the learned counsel appearing for the
respondents/claimants. The respondents/claimants shall
then be entitled to withdraw the said amount from the
Registry.
[M.S.SONAK, J.]
SPT/916-FA 127 of 2017 & anr.
