Shrikant S/O Bapuji Durugkar And ... vs Devanand S/O Nilkanth Bagde And ...
2021 Latest Caselaw 9990 Bom

  39FA 1264.2019.odt                                1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                        FIRST APPEAL NO. 1264 OF 2019

  1. Shrikant s/o Bapuji Durugkar,
     aged about 54 years, Occ. Cultivator.

  2. Sunita w/o Shrikant Durugkar,
     aged about 47 years, Occ. Household.

       Both are R/o Post Dhamna, Dist. Nagpur.
                                                              ...APPELLANTS
                    Versus

  1. Devanand s/o Nilkanth Bagde,
     aged 45 years, Occ. Present Owner,
     R/o Nagsen Nagar, Ward No. 6,
     In front of Badkchhp Building,
     Kamptee, Th - Kamptee, Dist - Nagpur.

  2. Diwakar s/o Nilkanthrao Mahale,
     aged Major, Occ. Not known,
     R/o Ukhali, Post - Jawali, Th - Bhiwapur,
     Dist - Nagpur.

  3. Barkat Ali Abdul Gaffar Shaikh,
     aged Major, Occ. Not known,
     R/o At Post - Mansar, Th - Ramtek,
     Dist - Nagpur.

  4. The Branch Manager,
     The Bajaj Allianz General Ins. Co. Ltd.
     Shriram Towers, Near NIT Office,
     Kingsway, Sadar, Nagpur.
                                                          ...RESPONDENTS.


  Shri B.S. Mandhre, Advocate h/f Shri P. S. Mirache, Advocate for the
  appellants.
  Smt. Mrunal Naik, Advocate for respondent No.4.
  None for respondent Nos. 1 to 3.
                    .....



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   39FA 1264.2019.odt                                2




                     CORAM : PUSHPA V. GANEDIWALA, J.
   ARGUMENTS WERE HEARD ON : 23/07/2021.
  JUDGMENT IS PRONOUNCED ON : 30/07/2021.


  JUDGMENT :

Heard. Admit. Matter is taken up for final hearing

at the stage of admission itself with consent of learned counsel

for both the parties.

2. This is claimants' appeal under Section 173 of the

Motor Vehicles Act, 1988 ("MV Act") assailing the award dated

17/11/2016 passed by the Member, Motor Accident Claims

Tribunal - 1, Nagpur in Claim Petition No. 485/2011. In the

said award, the Tribunal in a death case, fastened the liability

of payment of compensation upon respondent No. 2, the

registered owner of the offending vehicle, and directed him to

pay Rs.4,57,000/- to the appellants, including Rs.50,000/-

towards no fault liability along with interest @ 7.5% per

annum from 06/06/2011 till payment of the entire amount.

The challenge in the appeal is only with regard to

enhancement of the compensation and seeking direction for

'pay and recover' to the Insurance Company.

The facts in brief, necessary to decide the present

appeal may be stated as under :

3. The appellants/ original claimants are the parents

of the deceased Shruti, aged around 20 years, who met with an

unfortunate accident on 30/04/2011, while she was travelling

in a vehicle - Mahindra Max Jeep bearing No. MH-40-9219

from Kondhali towards Nagpur. The cause of the accident is

stated to be the rash and negligent driving of the driver of the

Jeep, as a result of which he lost control over the same and

gave dash to the divider on the road, due to which the Jeep

turned turtle and collided with another Truck which was

coming from the opposite direction. It is stated that the

deceased Shruti, who was the occupant in the said Jeep,

sustained injuries and died on the spot.

4. The parents of the deceased filed Claim Petition

under Section 166 of the MV Act attributing negligence to the

driver of the Jeep. They state that their daughter, the deceased

Shruti was a clever student and was pursuing her studies in

B.E. (Electronics). They claimed total compensation of

Rs.32,30,000/- with interest by considering notional income of

an engineer at Rs. 25,000/- p.m. on the premise that the

deceased would have earned this much of the amount per

month after completing her studies.

5. Respondent No. 1 was impleaded as the owner of

the offending vehicle which was insured with respondent No.

4; the respondent No. 2 was impleaded as the registered owner

and the respondent No. 3 was impleaded as he was shown as

the owner in Insurance Policy, and therefore, all were

impleaded in the Claim petition.

6. Respondent No. 4 - Insurance Company resisted

the claim vide its written statement at Exh.26. The Insurance

Company denied the involvement of the vehicle in the alleged

accident and also disputed the permit and fitness of the

vehicle. It also disputed the contract of insurance and the claim

in toto.

7. The Tribunal framed necessary issues, and recorded

evidence as adduced by the parties, and partly allowed the

Claim Petition as above. The learned Member of the Tribunal

fixed liability for payment of compensation on the registered

owner of the offending vehicle while exonerating the Insurance

Company for want of valid permit. The driver of the vehicle

was not impleaded in the petition. This judgment is impugned

in this appeal by the claimants mainly on two counts i.e.

enhancement of compensation and directions for 'pay and

recover'. The respondent No. 2, the registered owner of the

Jeep preferred not to file an appeal against the award of the

Tribunal.

8. I have heard Shri Mandhre, learned counsel for the

appellants, and Ms. Naik, learned counsel for respondent No.

4/ Insurance Company.

9. Shri Mandhre, learned counsel for the appellants,

with regard to enhancement of compensation submitted that

the Tribunal considered a very paltry sum of Rs.4,000/- as the

notional income of the deceased, who was pursuing the

Engineering course in Electronics at the time of her death. In

support of his submissions, the learned counsel relied on the

judgment in the case of V. Selvaraj & Anr. Vs. Bajaj Allianz

Gen. Ins. Co. Ltd. & Anr. (Civil Appeal No(s) 8430/2014

decided on 01/09/2014), wherein the Hon'ble Apex Court has

taken notional income for a third-year engineering student at

Rs.10,000/- per month. Reliance is also placed on the

judgment of the High Court of Delhi in the case of Ramesh

Chand Joshi & Anr. Vs. New India Assurance Co. Ltd. (MAC.

APP. No. 212-13/2006 decided on 20/01/2010), wherein the

Delhi High Court has considered the notional income of the

deceased who was pursuing Engineering from one reputed

college in Delhi at Rs. 26,833/- per month. The learned

counsel, therefore urged to consider the notional income of the

deceased at the rate Rs. 25,000/- .

10. The second aspect which the learned counsel has

argued, is with regard to the directions to respondent No. 4 -

Insurance Company to first pay the compensation amount, and

to recover the same from the owner.

11. Per contra, Smt. Naik, learned counsel for

respondent No. 4, raised strong objection for enhancement of

the notional income of deceased Shruti. The learned counsel

submitted that in the case of Ramesh Chand Joshi (supra), the

deceased was studying in a reputed Engineering College,

whereas in the instant case, there is nothing on record to show

the credential and the reputation of the college where the

deceased was studying. Furthermore, the pleadings of the

claimants with regard to the name of the engineering college

so also the other details are also silent. The learned Counsel

urged to dismiss the appeal for want of merit.

12. On the aspect of 'pay and recover', learned Counsel

submitted that if at all if this Court is directing the insurer to

pay the compensation and recover the same from the owner of

the vehicle, directions for security of such payment may be

issued against the owner.

13. I have considered the submissions put forth on

behalf of both the parties. I have also perused the record with

the assistance of learned both the counsel. The following points

arose for determination of this Court :

i. Whether the parents of the deceased have made out a

case for enhancement of compensation?

ii. Whether directions in the nature of 'pay and recover'

can be issued ?

14. First and foremost, with regard to the notional

income of the deceased Shruti, the claimants through oral and

documentary evidence have proved that the deceased Shruti

was the student of First Year Engineering in Electronics from

Cumins College, Hingana, Dist. Nagpur and in 12 th standard

examination, the deceased received 55% marks. In this

context, the Hon'ble Apex Court in the case of V. Selvaraj & Anr.

Vs. Bajaj Allianz Gen. Ins. Co. Ltd. & Anr. (Civil Appeal No(s)

8430/2014 decided on 01/09/2014), in somewhat similar facts

situations has taken notional income for a third-year

engineering student at Rs.10,000/- per month. In the case of

Ramesh Chand Joshi (supra), the High Court of Delhi has

taken notional income at Rs.26,833/- per month. In the case

of V. Selvaraj (supra), the Hon'ble Apex Court has not gone into

the question of name and reputation of the engineering

college.

15. In the opinion of this Court, the facts of the present

case are more similar to the facts in the case of V. Selvaraj

(supra), wherein the Hon'ble Apex Court found Rs.10,000/-

per month as an appropriate amount towards the notional

income of the deceased. This Court is also of the view that

since the deceased Shruti was the first year engineering

student, it would be just and fair to consider her notional

income as Rs.10,000/- per month. The Tribunal failed to justify

in considering meagre amount of Rs. 4,000/- as the notional

income of an Engineer in Electronics.

16. Accordingly, this Court quantifies the monthly

income of the deceased at Rs.10,000/-, which makes the yearly

income at Rs.1,20,000/- of which the claimant is also entitled

for 40% towards future prospects (National Insurance

Company Limited Vs. Pranay Sethi And Others, (2017) 16 SCC

680) which is Rs.48,000/- which if added to the yearly income,

the amount would become Rs.1,68,000/- of which if 50% is

deducted towards personal expenses, the amount left would be

Rs.84,000/- which if multiplied by applying multiplier of 18,

taking into consideration the judgment delivered by the

Hon'ble Apex Court in the case of Smt. Sarla Verma & Ors. Vs.

Delhi Transport Corporation & Anr., reported in 2009(6)

SCALE, the amount would come to Rs.15,12,000/-. Further this

Court also quantifies the compensation towards filial

consortium at Rs.80,000/- (40,000/- X 2 ) as held in the case

of Magma General Insurance Company Limited Vs. Nanu Ram

Alias Chuhru Ram And Others, reported in (2018) 18 SCC 130.

In addition, the claimants would also be entitled for an amount

of Rs.15,000/- towards funeral expenses and Rs.15,000/-

towards loss of estate.

17. Thus, the total compensation payable to the

claimants is arrived at Rs.16,22,000/- instead of Rs.4,57,000/-

as awarded by the Tribunal. The said enhanced amount shall

also carry interest at the same rate, i.e., 7.5% per annum as has

been awarded by the Tribunal.

18. Now, the question is with regard to the directions in

the nature of 'pay and recover'. In the instant case, it is not

proved that the offending vehicle had a valid permit at the

relevant time, in the absence of which, the Insurance Company

has been fully exonerated from the liability of payment of

compensation. The Hon'ble Apex Court in the case of Amrit

Paul Singh And Another Vs. Tata AIG General Insurance

Company Limited And Others, reported in (2018) 7 SCC 558 in

para 24 has held that as nothing has been brought on record by

the insured to prove that he had a valid permit of the vehicle,

in such a situation, the onus cannot be cast on the insurer. The

Hon'ble Apex Court directed the Insurance Company to pay the

compensation amount to the claimants with interest with the

stipulation that the insurer shall be entitled to recover the same

from the owner and the driver. The Hon'ble Apex Court stated

that the said directions are in consonance with the principles

stated in National Insurance Co. Ltd. Vs. Swaran Singh,

reported in (2004) 3 SCC 297 and other cases pertaining to

'pay and recover' principle.

19. In the case in hand, as stated earlier, the Insurance

Company has been exonerated for want of permit of the

vehicle. However, as held in the case of Amrit Paul Singh

(supra) of the Hon'ble Apex Court, respondent No. 4 is directed

to pay the entire amount of compensation to the claimants

along with interest, and the Insurance Company is entitled to

recover the same from the owner of the vehicle.

20. With regard to directions towards furnishing

security by the owner, it is true that in some cases, the Hon'ble

Apex Court and this Court issued directions to the owner to

furnish security for the payment to the Insurance Company,

however, considering the facts in the instant case, in the

considered opinion of this Court, such a direction would not

serve the purpose as the claimants would not be able to receive

the amount of compensation. The claimants, the parents of the

deceased daughter are fighting the case since 2011. If such

direction is issued in this case, the claimants would be deprived

of the amount of the compensation, even after fighting the case

for more than ten years, as the registered owner of the vehicle

has not contested the case and also failed to appear before this

Court. However, for the purpose of such recovery, it would not

be necessary for the insurer to file a separate suit but it may

initiate a proceeding before the executing court as if the

dispute between the insurer and the owner was the subject

matter of determination before the tribunal and the issue is

decided against the owner and in favour of the insurer.

21. Accordingly, the impugned judgment and award

dated 17/11/2016 passed by the Member, Motor Accident

Claims Tribunal - 1, Nagpur in Claim Petition No. 485/2011

stands modified as under :

i) Respondent No.4 - Insurance Company shall pay

enhanced compensation amount, i.e., Rs.16,22,000/- to the

claimants along with interest @ 7.5% per annum from

06/06/2011 till payment of the entire amount which is

inclusive of Rs.50,000/- towards 'No Fault Liability'.

ii) After payment of enhanced compensation,

respondent No.4 - Insurance Company is at liberty to recover

the same from the registered owner, i.e., respondent No.2.

through execution proceedings.

iii) Realisation of the amount shall be subject to deficit

Court fee.

22. With the aforesaid directions, the appeal stands

partly allowed and disposed of. No costs.

JUDGE ****** Sumit