Bajaj Allianz General Insurance ... vs Jijabai Anil Koli And Others
2021 Latest Caselaw 4268 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         FIRST APPEAL NO. 789 OF 2019
                                     WITH
                      CIVIL APPLICATION NO. 3573 OF 2019
                                     WITH
                      CIVIL APPLICATION NO. 12014 OF 2019


  Bajaj Allianz General Insurance Co. Ltd.                ...Appellant

          versus

 Jijabai Anil Koli and others                             ...Respondents

                                    .....
 Mr. S.G. Chapalgaonkar, advocate for the appellant
 Mr. M.M. Bhokarikar, advocate for respondent Nos.1 to 3
                                     .....

                                   WITH
                          CROSS APPEAL NO. 2 OF 2021

 Jijabai Anil Koli and others                             ...Appellants

          versus

 Bajaj Allianz General Insurance Co. Ltd.
 And others                                               ...Respondents

                                .....
 Mr. M. M. Bhokarikar, advocate for the appellants
 Mr. S. G. Chapalgaonkar, advocate for respondent No.1
                                     .....

                                      CORAM :        V. K. JADHAV, J.

Date of Reserving the Order :24.02.2021

Date of pronouncing the Order : 09.03.2021

PER COURT :-

1. By order dated 04.10.2019 this court (Coram: Smt. Vibha

Kankanwadi, J.) after recording that the service to all respondents is

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complete, directed to place the first appeal for final disposal at

admission stage. Even in terms of the order dated 20.11.2019

notices have been issued to the respondent owner of the offending

vehicle and the rider of the vehicle for final disposal, however,

despite service of said notice of final disposal, none appears for

respondent No.6.

2. On 6.5.2011 at about 7.30 p.m. deceased Anil Koli was the

pillion rider of motor cycle bearing registration No. MH-19/BB-3260

and one Manohar Koli (respondent No.6 herein) was riding the said

motor cycle. The said motor cycle met with an accident on National

Highway No.6, as the rider of the motor cycle had lost his control

over the vehicle and the motor cycle skidded on the road. On

account of the said accident, deceased Anil Koli had sustained fatal

injuries.

3. Respondent Nos. 1 to 5 original claimants had filed M.A.C.P.

No. 337 of 2011 under Section 166 of the Motor Vehicles Act, 1988

(for short "M.V. Act") for award of compensation. The learned

Member of M.A.C.T. by impugned judgment and award dated

10.9.2018 partly allowed the claim petition with proportionate costs

and thereby directed the respondents in the claim petition to pay

compensation of Rs.7,18,000/- jointly and severally.

4. Being aggrieved by the same, the insurer Bajaj Allianz

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General Insurance Company Ltd. has preferred first appeal No. 789

of 2019 and original claimants have filed cross appeal No. 2 of 2021

challenging the award to the extent of quantum.

5. Mr. Chapalgaonkar, learned counsel for the appellant insurer

in first appeal No. 789 of 2019 submits that the appellant insurer has

raised specific defence in the written statement that the respondent

No.1 in the claim petition i.e. rider of the motor cycle was not holding

valid and effective driving licence at the time of accident. Further

there is voluminous evidence to prove that he was not holding valid

and effective driving licence at all. Learned counsel submits that the

appellant insurer ought to have been exonerated in terms of the

provisions of section 149(2) of the M.V. Act. Learned counsel

submits that the respondent No.1 in the claim petition i.e. rider of the

motor cycle was prosecuted for the offence under Section 181 of the

M.V. Act and the appellant insurer has examined the investigating

officer R.W.1 at Exh.44 to prove the contents of the charge sheet.

Learned counsel submits that the appellant insurer had issued

communicated Exh.50 alongwith the track report, which indicates that

it was duly signed by the respondent owner of the vehicle. Under the

said communication, respondent No.1 owner, was requested to

produce copy of driving licence, if any. However, no driving licence

or its particulars were made available to the insurance company.

Learned counsel submits that the Tribunal should have drawn an

adverse inference against the respondents by accepting the defence

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raised by the appellant insurer.

6. Mr. Chapalgaonkar, learned counsel for the appellant insurer

submits that the insurance policy is placed on record, which is

marked at Exh.49 and the contents of the said policy are proved by

P.W.2 Chinmay Joshi. Further the appellant insurer has also

examined post master to prove that the communication was

dispatched to the respondent owner. Learned counsel submits that

despite the respondent owner has caused his appearance before the

Tribunal and engaged advocate, the respondent owner has not

produced copy of driving licence nor stepped in the witness box to

controvert the defence of insurer. Learned counsel submits that

even the appellant insurer had filed an application Exh.18 in terms of

the Order XI Rule 14 of C.P.C. and the Tribunal has passed order

directing the respondent owner to file driving licence up to 8.1.2014.

However, till disposal of claim petition, no driving licence was filed on

record.

7. Mr. Chapalgaonkar, learned counsel for the appellant submits

that in terms of provisions of section 134 (c) of the M.V. Act, it is

mandatory on the part of the owner or the driver of the vehicle, as the

case may be, to produce the copy of driving licence or its particulars

to insurer immediately upon the accident of the insured vehicle.

However, the respondents have failed to comply their obligation as

per the mandate of law. It is equally mandatory on the part of the

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driver of the vehicle, which met with an accident, to produce the

driving licence or its particulars to the Police Officer on demand. The

respondent owner has not produced such driving licence. The

respondent Nos. 6 and 7 (original respondent Nos. 1 and 2) could not

produce such driving licence or any particulars to the police.

Therefore, the charge sheet came to be filed against rider of the

motor cycle for the offence punishable under section 181 of the M.V.

Act.

8. Mr. Chapalgaonkar, learned counsel for the appellant submits

that in terms of ratio laid down by the Supreme Court in the case of

Pappu and others vs. Vinod Kumar Lamba, reported in (2018) 3

SCC 208, the initial burden to produce the driving licence or its

particulars is upon the owner of the vehicle and the onus would shift

on the insurance company only after the owner of the offending

vehicle pleads and proves the basic facts within his knowledge that

the driver of the offending vehicle was authorized by him to drive the

vehicle and was having a valid driving licence at the relevant time.

Learned counsel submits that in the instant case, the respondent

original respondent Nos. 1 and 2 have failed to discharge the initial

burden and thus, onus cannot be shifted on the appellant insurer to

prove the defence about breach of the conditions.

9. Mr. Bhokarikar, learned counsel for the respondents original

claimants submits that the Tribunal in para 21 of the judgment has

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observed that, from entire evidence led by respondent No.3 insurer,

is not sufficient to conclude that respondent No.1 was not having

valid and effective driving licence on the day of accident. The

learned Member of the Tribunal has observed that offending vehicle

was duly insured with respondent No.3 insurer covering the date of

accident and as such, respondents are jointly and severally liable to

pay the compensation to the claimants.

10. Mr. Bhokarikar, learned counsel for the respondents

claimants in his cross appeal submits that deceased Anil Koli met

with an accidental death at young age. He was working as

supervisor on one brick-kiln on monthly salary of Rs.8000/-.

Deceased Anil was earning additional income of Rs.2000/- to

Rs.2500/- p.m. other than the salary. Learned counsel Mr.

Bhokarikar, submits that considering the young age of the deceased,

the Tribunal ought to have considered his future prospects, however,

the Tribunal has not considered the same. Learned counsel submits

that thus the impugned judgment and award passed by the Tribunal

requires modification to the extent of quantum of compensation.

11. I have carefully perused the evidence led by both the parties.

On perusal of written statement filed by respondent No.2 owner in

the claim petition, it appears that in para 6 of the written statement,

respondent No.2 owner has specifically pleaded that respondent

No.1 had driven the offending vehicle at the time of accident having

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valid driving licence. Admittedly, respondent No.2 owner of the

vehicle has not adduced any evidence in support of his plea taken in

the written statement. Despite the communication Exh.50 sent to

respondent No.2 owner by the appellant insurer and even by the

investigating officer, respondent No.2 owner has not produced the

driving licence or the particulars of the driving licence of respondent

No.1 before the Tribunal.

12. In the case of Pappu and others vs. Vinod Kumar Lamba

and another (supra) relied upon by learned counsel for the

appellant insurer, the Supreme Court by referring the case of

National Insurance Co. Ltd. vs. Swaran Singh, reported in (2004)

3 SCC 297 has observed that the Insurance company entitled to take

a defence that offending vehicle was driven by unauthorized person

or the person having no valid driving licence, however, onus would

shift on insurance company only after owner of offending vehicle

pleads and proves basic facts within his knowledge that driver of

offending vehicle was authorised by him to drive the vehicle and was

having a valid driving licence at relevant time. It appears that

respondent No.2 owner of the offending vehicle, which met with

accident, has raised vague plea in the written statement. It is thus

held by the Supreme Court that the Insurance company becomes

liable only after such foundational facts are pleaded and proved by

the owner of the offending vehicle.

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13. In the facts of the present case and considering the pleadings

and the evidence led by the parties, the ratio laid down by the

Supreme Court in the aforesaid case is squarely applicable to the

facts and circumstances of the present case. The Supreme court in

the said case has considered the question as to "whether in the fact

situation of the case the insurance company can be and ought to be

directed to pay the claim amount, with liberty to recover the same

from the owner of the vehicle"? The Supreme court has referred the

ratio laid down in the case of National Insurance Company vs.

Swaran Singh (supra), particularly by referring paras 107 and 110

has directed the insurer to satisfy the award in terms of the insurance

policy issued by it and then granted liberty to recover the same from

the owner of the vehicle in accordance with law.

14. In the instant case, the appellant insurer has also examined

the officer of the insurance company to prove the contents of

insurance policy Exh.49. It appears that this is two wheeler package

policy. In view of the same, considering the facts and circumstances

of the present case and ratio laid down in the aforesaid cases, as

referred above by the Supreme Court, it would be just and

appropriate if the appellant insurer is directed to pay the claim

amount to the respondents-claimants in the first instance with liberty

to recover the same from the owner of the vehicle in accordance with

law.

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15. So far as the quantum of compensation is concern, it appears

that deceased Anil Koli met with accidental death at a very young

age. It appears that he was bread earner of the family, leaving

behind his widow, two minor children and aged parents. Deceased

Anil was working as supervisor on a brick-kiln on certain monthly

salary. It appears that the Tribunal has not considered the future

prospects. In para 12 of the judgment even though the Tribunal has

discussed the evidence of the claimants about income of deceased,

which is to the tune of Rs.10,500/- p.m. however, considered the

monthly income of Rs.4000/- as notional income while deciding the

quantum of compensation. Deceased was working as supervisor on

a brick-kiln and it is common knowledge that the brick-kiln owner

hardly issues any salary certificate or transfer the salary in the bank

account of brick-kiln workers. Further the Tribunal has not

considered the future prospects of deceased, however, the

respondents-claimants could have examined the brick-kiln owner to

substantiate their claim about monthly income of deceased. In view

of the same, this court left with no other choice but to consider the

notional income of deceased Rs.4000/- p.m. however, I am inclined

to consider the addition of 40% towards the future prospects

considering the young age of the deceased.

16. In view of above, if the monthly income of deceased is

considered at Rs.4000/- which equivalent to Rs.48,000/- per annum

and by addition of 40% of future prospects, the total income comes to

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Rs.67,200/-. If 1/4th amount is deducted towards personal expenses

of the deceased, the net income for calculation of compensation

comes to Rs.50,400/-. Though there is some controversy with regard

to actual age of deceased, however considering the age of deceased

alongwith the age of his widow and minor children, the multiplier 17

would be just and appropriate in this case. Thus, the amount of

Rs.50,400/- if multiplied by 17, the amount of compensation comes to

Rs.8,56,800/-. The Tribunal has awarded Rs.70,000/- towards the

non pecuniary damages. Thus, the respondents claimants are

entitled for total compensation of Rs.9,26,800/- (Rs. 8,56,800 +

70,000/-).

17. At this stage, the learned counsel for the appellant insurer

placed his reliance on the judgment of the Supreme court in the case

of Oriental Insurance Co. Ltd. vs. Nanjappan and others,

reported in (2004) 13 SCC 224 and submits that for recovery of

amount from the insured owner, the insurer shall not be required to

file a suit. It may initiate a proceeding before the executing court

concerned 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. Learned

counsel submits that in terms of ratio laid down in the aforesaid case,

before releasing the amount to the claimants, owner of the vehicle

shall be issued a notice and he shall be required to furnish security

for the entire amount which the insurer will pay to the claimants. The

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offending vehicle shall be attached as part of the security. The

executing court shall pass appropriate order in accordance with law.

18. In the instant case, though after giving notice of final disposal,

the respondent owner remained absent. It thus appears that the

respondent owner has sufficient knowledge about pendency of this

matter before this Court and therefore, no such directions are

required to be given to the executing court to complete the

formalities, as observed in para 8 of the aforesaid order, before

releasing of amount to the claimants. Hence, I proceed to pass the

following order:-

ORDER

I. The first appeal as well as the cross appeal are partly allowed with proportionate costs and the judgment and award dated 10.9.2018 is hereby modified to the following effect:-

a) The claim petition is hereby partly allowed and original respondent Nos. 1 and 2 do pay jointly and severally a sum of Rs.9,26,800.00 (Rupees Nine lacs twenty six thousand eight hundred) inclusive amount awarded under Section 140 of the Motor vehicles Act 1988 with interest @ 8% p.a. from the date of registration of claim till the realization of the amount. However, original respondent No.3 insurer shall pay the quantum of compensation to the claimants as per the determination above and with the following conditions:-

i) For the purpose of recovering the same from the

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respondents insured, the respondent No.3 insurer shall not be required to file a suit and it may initiate a proceeding before the executing court concerned 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.

ii) The award be drawn up in accordance with modification, as above.

iii) The amount of compensation deposited by the appellant insurer before this Court in terms of the judgment and award passed by the Tribunal before modification, as aforesaid, shall be paid to the respondents-claimants forthwith in terms of the apportionment as directed by the Tribunal.

iv) The appellant insurer shall pay remaining amount to the respondents-claimants in terms of the modified award as above within three months from the date of this order.

v) The deficit court fees, if any, be paid as per Rules.

II. The First appeal, cross appeal and all pending civil applications, are accordingly disposed of.

(V. K. JADHAV, J.)

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