Bombay High Court
Smt. Manisha Wd/O Rajesh ... vs Shri Vinod S/O Harichandra ... on 24 August, 2021
Bench: Pushpa V. Ganediwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 1213 OF 2016
1. Smt. Manisha wd/o Rajesh Padgilwar,
Aged about 45 yrs.,
Occ. - Household
2. Ms. Shivani d/o Rajesh Padgilwar,
Aged about 17 yrs.,
Occ. - Student
3. Master Shardul s/o Rajesh Padgilwar,
Aged about 12 yrs.,
Occ. - Student.
Nos.2 and 3 being minors,
through their Natural Guardian and
Next Friend - mother,
the Appellant No.1 - Smt. Manisha
wd/o Rajesh Padgilwar
All R/o. C/o Shri U.J. Bongirwar,
Bhavana Insurance Services,
Opp. Church, M.G. Road,
Hospital Ward, Chandrapur,
Tq. & Distt. Chandrapur
4. Smt. Vijayabai wd/o Prabhakar Padgilwar, (Deleted as per Court's
Aged 77 yrs., Occ. Nil, order dated 05/12/2018)
R/o. Digras,
Tq. Digras, Distt. Yavatmal ...APPELLANTS
VERSUS
1. Shri Vinod s/o Harichandra Labhane,
Aged Major, Occ. Business,
R/o. Babupeth, Samta Chowk,
Ward No.3, Chandrapur,
Tq. & District Chandrapur
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2. The New India Assurance Company Ltd.,
to be served through its
Branch Manager,
Chandrapur Branch,
J.N. Gupta Building,
Kasturba Road, Chandrapur,
Tq. & Distt. Chandrapur
3. The National Insurance Company Ltd.,
to be served through its
Branch Manager,
Chandrapur Branch,
above Bank of India,
Jatpura Gate, Chandrapur,
Tq. & Distt. Chandrapur
...RESPONDENTS
______________________________________________________________
Shri M.P. Khajanchi, Advocate for appellants.
Shri S.W. Sambre Advocate for respondent No.1.
Shri A.W. Paunikar, Advocate for respondent No. 2.
______________________________________________________________
FIRST APPEAL NO. 1215 OF 2016
Smt. Manisha wd/o Rajesh Padgilwar,
Aged about 45 yrs.,
Occ. - Household
R/o. C/o Shri U.J. Bongirwar,
Bhavana Insurance Services,
Opp. Church, M.G. Road,
Hospital Ward, Chandrapur,
Tq. & Distt. Chandrapur
...APPELLANT
VERSUS
1. Shri Vinod s/o Harichandra Labhane,
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Aged Major, Occ. Business,
R/o. Babupeth, Samta Chowk,
Ward No.3, Chandrapur, Tq. & District Chandrapur.
2. The New India Assurance Company Ltd.,
to be served through its
Branch Manager,
Chandrapur Branch,
J.N. Gupta Building,
Kasturba Road, Chandrapur,
Tq. & Distt. Chandrapur
3. The National Insurance Company Ltd.,
to be served through its
Branch Manager,
Chandrapur Branch,
above Bank of India,
Jatpura Gate, Chandrapur,
Tq. & Distt. Chandrapur
...RESPONDENTS
______________________________________________________________
Shri M.P. Khajanchi, Advocate for appellant.
Shri S.W. Sambre Advocate for respondent No.1.
Shri A.W. Paunikar, Advocate for respondent No. 2.
______________________________________________________________
FIRST APPEAL NO. 909 OF 2017
The New India Assurance Company Ltd.,
through Branch Manager,
J.N. Gupta Building,
Kasturba Road, Chandrapur-442402
Tq. & Distt. Chandrapur
...APPELLANT
VERSUS
1. Smt. Manisha wd/o Rajesh Padgilwar,
Aged about 45 yrs., Occ. - Household
2. Shivani d/o Rajesh Padgilwar,
Aged about 19 yrs., Occ. - Student
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3. Shardul s/o Rajesh Padgilwar,
Aged about 14 yrs., Occ. - Student.
R. No.3 being minor,
through Natural Guardian Mother,
respondent No.1
All above respondent Nos.1 to 3 are
R/o. C/o U.J. Bongirwar,
Bhawana Insurance Services,
Opp. Church, M.G. Road,
Hospital Ward, Chandrapur,
Tq. & Distt. Chandrapur
4. Prabhakar s/o Tukaram Padgilwar, (Deleted as per Court's order
Aged about 73 yrs., Occ. Nil, dated 19/11/2018.
5. Vijayabai wd/o Prabhakar Padgilwar, (Deleted as per Court's order
Aged about 68 yrs., Occ. Nil, dated 05/12/2018.
Respondent Nos. 4 & 5 are
R/o. Digras, Tah. Digras,
Distt. Yavatmal
6. Vinod s/o Harichandra Labhane,
Aged about Major, Occ.-Business, R/o.-Babupeth,
Samta Chowk, Ward No.3, Chandrapur
(Recorded owner of LCV No.MH-04/S-7353)
7. National Insurance Co. Ltd.,
through Branch Manager, above Bank of India,
Jatpura Gate Branch, Chandrapur. ...RESPONDENTS
______________________________________________________________
Shri A.W. Paunikar, Advocate for appellant.
Shri M.P. Khajanchi, Advocate for respondent Nos.1 to 3.
Shri Johar Shakil, Advocate h/f Shri S.W. Sambre, Advocate for
respondent no.6.
Shri S. Zoting, Advocate for respondent no.7.
_____________________________________________________________
CORAM : PUSHPA V. GANEDIWALA, J.
DATED : AUGUST 24, 2021.
ORAL JUDGMENT :
Being aggrieved by the quantum of compensation awarded
by the Claims Tribunal, the injured claimant-Manisha Padgilwar in her
personal capacity and in the capacity of the legal representatives of the
deceased - Rajesh Prabhakar Padgilwar on one hand, so also, the
insurer of the offending vehicle - New India Assurance Company Ltd.
on the other hand independently challenged the judgments and awards
dated 19/08/2016 in M.A.C.P. Nos.101/2007 and 104 /2007, passed
by the Motor Accident Claims Tribunal, Chandrapur, whereby the
learned Tribunal saddled the liability of payment of compensation,
jointly and severally on the owner and the insurer of the offending
vehicle i.e. Truck bearing registration No. MH-04-S-7353. The learned
Tribunal exonerated the insurer of the vehicle Hyundai Accent Car
bearing Registration No. MH-31-BS-786 i.e. respondent No. 7-National
Insurance Company from its liability to pay compensation, which was
driven by the deceased.
2. The facts, in nutshell, in these Appeals are as under :-
On 23/09/2006 at about 10.30 a.m. the deceased along
with his wife and children with one Shri Deorao Wankhede were
traveling in Hyundai Accent Car from Chandrapur to Nagpur via
Warora in a moderate speed. At that time, a truck bearing registration
No. MH-04-H-7353 suddenly came in a rash and negligent manner and
at a high speed from the other side and gave a dash to the Hyundai
Accent Car from the driver's side and accident took place. In the said
accident, three persons seriously injured while one person namely
Rajesh succumbed to the injuries during the course of treatment at
hospital.
3. The Claim Petitions came to be filed by the legal
representatives of the deceased as well as the injured victims of the
accident. The appellant - New India Assurance Company Ltd. resisted
the Claim Petitions and by way of specific pleadings took the defence of
contributory negligence. The learned Tribunal framed necessary issues
and recorded evidence as adduced by the parties. The claimant No.1 -
Manisha Padgilwar was examined at Exh.26 and brought on record
several documents while appellant - New India Assurance Company
Limited examined driver of the offending truck namely Bandu Tukaram
Shergure at Exh. 105.
4. On meticulous appreciation of evidence on record, the
learned Tribunal recorded the findings that the claimants could have
prove that due to rash and negligent driving of the truck bearing
registration No. MH-04-S-7353, the deceased met with an accident and
died. It is further held that the respondent No.2 - New India Assurance
Company Ltd. has failed to prove that there was a breach of terms and
conditions of the insurance policy by respondent No.1 that is the owner
of the offending vehicle. The learned Tribunal directed respondent No.2
- New India Assurance Company Limited to pay compensation to the
claimants with interest at the rate of 7.5% per annum from
02/05/2014 till its full realization inclusive of 'No Fault Liability'.
5. In the impugned judgment in First Appeal No.1215/2016,
the learned Tribunal directed respondent Nos.1 and 2 i.e. the owner
and the insurer of the offending vehicle i.e. Truck bearing Registration
No. MH-04-S-7353 to pay jointly and severally Rs.2,00,000/- to the
claimant- Manisha wd/o Rajesh Padgilwar along with interest at the
rate of 7.5% per annum from 02/05/2014 till its full realization.
6. While in First Appeal No.1213/2016, the learned Tribunal
directed respondent Nos.1 and 2 i.e. the owner and the insurer of the
offending vehicle i.e. Truck bearing Registration No. MH-04-S-7353 to
pay jointly and severally Rs.33,08,687/- to the claimants i.e. the legal
heirs of deceased Rajesh Padgilwar along with interest at the rate of
7.5% per annum from 02/05/2014 till its full realization.
7. The claimants challenged the aforesaid award for the
enhancement of compensation while the Insurance Company has a
grievance that the learned Tribunal has committed a gross error in
exonerating the respondent No.7 i.e. the National Insurance Company
Ltd. with whom the vehicle Hyundai Accent Car bearing Registration
No. MH-31-BS-786 was insured.
8. I have heard Shri M.P. Khajanchi, learned Counsel
appearing on behalf of the claimants, Shri A.W. Paunikar, learned
Counsel appearing for the New India Assurance Company Limited, Shri
S. Zoting, learned Counsel appearing for the National Insurance
Company Ltd. and Shri Johar Shakil, learned Counsel holding for Shri
S.W. Sambre, Advocate for the owner of the offending truck bearing
registration No. MH-04-S-7353.
9. Shri Khajanchi, learned Counsel for the claimants,
restricted his claim towards interest part on the amount of
compensation and also for addition of amount towards the heads future
prospects and consortium in terms of the judgment of the Hon'ble
Supreme Court in the case of National Insurance Company Limited
Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 680.
10. It is urged that the learned Tribunal in M.A.C.P. No.
101/2007 while calculating compensation has not considered the
future prospects at 40% of the income of the deceased as the age of the
deceased was 40 years and was self-employed, funeral charges of
Rs.15,000/- and consortium of 5 dependents at the rate of Rs.40,000/-
per person i.e. Rs.2,00,000/-.
11. With regard to the interest, it is submitted that the
learned Tribunal has granted interest @7.5% per annum from the date
02/05/2014 i.e the date of commencement of recording of evidence
and not from the date of the application. The delay was attributed by
the learned Tribunal to the claimants as well as the respondents.
12. So far as the period for which the interest is to be
calculated is concerned, a perusal of the order sheet from the record
and proceedings, with the assistance of both the learned counsel,
reflects that during the period from filing of the petitions till the time of
recording of the evidence, on many dates, the proceedings came to be
adjourned as the Tribunal was busy in some other matters. For some
dates the learned presiding officer of the Tribunal was on leave.
Therefore, the learned Tribunal is not justified in awarding interest
from 02/05/2014 i.e. the date on which examination-in-chief on behalf
of the claimant was recorded. This Court as well as the Hon'ble Apex
Court in most of the cases have granted interest from the date of the
application. Grant of compensation in terms of pendente lite and future
interest, is the discretion of the Court. In the considered opinion of this
Court, as the delay is not fully attributed to the claimants, it would be
unjustified to deny the interest pendente lite fully to the claimants.
13. Shri Khajanchi, learned counsel for the applicants also
argued for enhancement rate of interest at 12% per annum whereas,
Shri Paunikar, learned Counsel for the respondent no.2, on the other
hand, strongly opposed the prayer. Both the learned counsel cited
various judgments of the High Courts as well as the Hon'ble Supreme
Court wherein different rates ranging from 6% to 12% have been
awarded by the Hon'ble Supreme Court. Considering the date from
which the interest has to be calculated i.e. from 2007 and the present
situation of rate of interest, the Tribunal has judiciously exercised the
discretion for awarding interest at the rate of 7.5% per annum.
14. With regard to enhancement of compensation, the
claimants are entitled for the compensation in accordance with the
ratio laid down by the Constitution Bench of the Hon'ble Supreme
Court in the case of Pranay Sethi (supra) i.e. 40% towards future
prospects, Rs.15,000/- towards funeral expenses, Rs.40,000/-each
towards consortium to all the dependents and Rs.15,000/- towards loss
of estate. Accordingly, the amount of compensation can be calculated
as under:-
Rs.2,50,000/- Annual Income
Rs.1,00,000/- (40%) Future prospects
(-) Rs.87,500/- One fourth deduction towards personal
expenses of deceased.
Rs.2,62,500/- Total Salary
(X) 16 Multiplier applied as deceased was 40 years
of age.
Rs. 42,00,000/- Total
Rs.2,00,000/- Loss of consortium (5 dependents)
(+) Rs. 15,000/- Funeral Expenses
(+) Rs.15,000/- Loss of estate not granted.
Rs. 44,30,000/- Total compensation considered
15. In First Appeal No.909/2017, the appellant - New India
Assurance Company Ltd. has challenged the impugned award mainly
on the ground that the learned Tribunal erred in not considering the
contributory negligence on the part of the Accent Hundai car. The
learned counsel Shri. Paunikar appearing for the appellant-insurance
company submitted that the Tribunal has failed to consider the
situation of the road on which the accident took place. It was 25 feet in
width. The car was dashed on the driver's side and the learned Tribunal
has failed to appreciate that the driver of the truck had applied breaks
to avoid accident from a distance of 15 feet ahead of car, while tyre
marks of truck at the time of application of breaks, are clearly seen on
road as per the spot panchanama. It is further stated that the Tribunal
while delivering its judgment has failed to consider the time of accident
as 10.00 a.m. and if the same is considered, there is every possibility
that the driver of the car could have avoided the accident in broad day
light. It is further urged that the driver of the car is guilty of
contributory negligence and, therefore, the impugned judgment and
award deserve to be set aside.
16. This Court examined the spot panchanama and the
testimonies of the claimant - Manisha Padgilwar and the driver of the
offending truck. The spot panchnama Exh.39 would show that the
driver of the offending vehicle by name Bandu Shergure has shown the
spot. There is description about position of both the vehicles and the
damage caused to the vehicles. The spot panchanama is concluded with
the inference that 'on collective inspection of the spot, it appears that
due to rash and negligent driving of the driver of the Truck bearing
registration No. MH-04-S-7353, the accident occurred'. Furthermore, if
we peruse the cross-examination of the said driver namely Bandu
Shergure conducted by learned counsel Shri Khajanchi on behalf of the
claimants, he has stated that after seeing upcoming vehicle, he has
applied the breaks from 20 to 25 meters. However, in his cross
examination he has clearly admitted that till the accident took place,
his vehicle did not stop. This admission itself speaks about the speed of
the vehicle and at what moment he might have applied the brakes. In
addition to this, the injured eye-witness to the accident i.e. claimant -
Manisha deposed that her husband - deceased Rajesh was driving his
car slowly by his side and when they came near Takli Naka between
Bhadrawati and Warora road on Chandrapur-Nagpur road the driver of
Truck bearing registration No. MH-04-S-7353 came from the opposite
direction in a very high speed and in a very rash and negligent manner
and gave dash to the car from the driver's side, as a result of which
deceased - Rajesh, she herself, her daughter - Shivani, son- Shardul
and one Wankhede sustained injuries. The record is fully silent with
regard to any injury caused to the truck driver in the said accident. In
such circumstances, the learned Tribunal has correctly appreciated the
evidence on record and rightly rejected the plea of contributory
negligence of the driver of the Hyundai Accent Car. Furthermore, F.I.R.
came to be registered against the driver of the offending vehicle.
17. Considering the aforesaid, the negligence in driving the
Hyundai Accent Car cannot be attributed to the deceased and,
therefore, the learned Tribunal has rightly concluded that due to the
rash and negligent driving of the driver of the offending truck accident
took place and, therefore, the owner and the insurer of the offending
truck is liable to pay compensation. For the aforesaid reasons, I do not
find any merit in First Appeal No.909 of 2017 of the Insurance
Company and it needs to be dismissed and the same is accordingly
dismissed.
18. At the same time, the Appeals of the claimants i.e. First
Appeal Nos. 1213/2016 and 1215/2016 on the aspect of calculation of
interest and compensation in accordance with the ratio laid down by
the Hon'ble Supreme Court in its judgment in the case of Pranay Sethi
(supra), are partly allowed. Hence, I pass the following order :
ORDER
(i) The First Appeal No. 909/2017 filed by the appellant- the
New India Assurance Company Limited is dismissed and
First Appeal Nos. 1213/2016 and 1215/2016 of the
claimants are partly allowed.
(ii) The owner of the offending truck and the insurer- the New
India Assurance Company Ltd. are jointly and severally
liable to pay Rs.44,30,000/- (rupees forty four lakh thirty
thousand only) inclusive of 'no fault liability' to the
claimants /legal heirs of deceased Rajesh and Rs.
2,00,000/- (rupees two lakh only) to the injured claimant
Manisha Padgilwar, with interest at the rate of 7.5% per
annum from the date of petition till its realization.
(iii) Needless to say that the amount which is already
deposited shall be deducted from the aforesaid
compensation.
(iv) The claimants are permitted to withdraw the amount of
compensation which has already been deposited by the
appellant - Insurance Company with the Registry of this
Court.
(v) The New India Assurance Company is directed to pay the
enhanced amount of compensation in terms of this
judgment. Thereafter, the claimants are permitted to
withdraw the aforesaid amount with accrued interest
thereon.
(vi) The directions in Clause 5 of the operative part of the
impugned judgment and order in First Appeal
No.1213/2016 with regard to depositing Rs.2,00,000/-
each and keeping the same in fixed deposit are recalled,
considering the fact that the period of five years has
already been lapsed.
19. The Appeals stand disposed of.
JUDGE
*DB
