The New India Assurance Co.Ltd. ... vs Pandurang Vithobaji Samrutwar ...
2021 Latest Caselaw 15315 Bom

Judgment

                                                            fa711 & 717.09 35

                                       1

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

                       FIRST APPEAL NO.711 OF 2009
                                  AND
                       FIRST APPEAL NO.717 OF 2009


FIRST APPEAL NO.711 OF 2009
The New India Assurance Company Limited,
Through its Divisional Manager, Walcut Compound,
Amravati, presently through its Chief Regional
Manager, 4th Floor, Dr.Ambedkar Bhawan, M.E.C.L.
Premises, Seminary Hills, Nagpur.              ..... Appellant.

                                :: V E R S U S ::

1. Pandurang s/o Vithobaji Samrutwar, aged
about 45 years, resident of Takli (Vrindawan),
Taluka Kelapur, district Yavatmal.

2. Dilip s/o Rajaramji Nagrale, aged major,
resident of ward No.5, Ralegaon, district
Yavatmal.                                 ..... Respondents.
===================================
Ms Anita Mategaonkar, Counsel for the Appellant.
Shri Bharat Vora, Counsel for Respondent No.1.
===================================


FIRST APPEAL NO.717 OF 2009
The New India Assurance Company Limited, through its
Divisional Manager, Walcut Compound, Amravati,
presently through its Chief Regional Manager,
4th Floor, Dr.Ambedkar Bhawan, M.E.C.L. Premises,
Seminary Hills, Nagpur.                ..... Appellant.



                                                                         .....2/-




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 Judgment

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                                         2

                                  :: V E R S U S ::

1. Shankar s/o Ganpat Buddewar, aged about
45 years, resident of Takli (Vrindawan),
Tahsil Kelapur, district Yavatmal.

2. Dilip s/o Rajaramji Nagrale, aged major,
resident of ward No.5, Ralegaon, district
Yavatmal.                                 ..... Respondents.
===================================
Ms Anita Mategaonkar, Counsel for the Appellant.
Shri Bharat Vora, Counsel for Respondent No.1.
===================================

             CORAM              : V.M.DESHPANDE, J.

             DATE               : OCTOBER 26, 2021

COMMON JUDGMENT

1. These two appeals arise out of same accident that took

place on 23.4.2002 at about 1:15 a.m. on Kalamb Wardha Road

within jurisdiction of Kalamb Police Station. Respondent No.1 in

these two appeals suffered injuries in the said accident. Along

with them, a co-passenger by name Shobha w/o Mohan

Badadewar lost her life. The said accident gives rise to three

different claim petitions under the Motor Accident Claims Tribunal

at Yavatmal (hereinafter referred to as, "the Tribunal" for the sake

of brevity). Husband of the deceased Mohan filed a claim petition

.....3/-

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fa711 & 717.09 35

along with his a minor son and it was registered as Claim Petition

No.227/2002; respondent No.1 Pandurang, the injured, in First

Appeal No.711/2009, filed a claim petition and it was registered as

Claim Petition No.42/2003, and respondent No.1 Shankar, the

injured, in First Appeal No.717/2009, filed a claim petition and it

was registered as Claim Petition No.43/2003. These three claim

petitions came to be decided by learned Chairman of the Tribunal

by common judgment on 7.11.2008. All three claim petitions

came to be partly allowed.

2. Being aggrieved by the common judgment, the

appellant/The New India Assurance Company Limited (for short,

"the Insurance Company") filed these two appeals. By filing First

Appeal No.711/2009, the Insurance Company is challenging the

judgment and award in Claim Petition No.42/2003, whereas by

filing First Appeal No.717/2009, the Insurance Company is

challenging the judgment and award in Claim Petition

No.43/2003.

3. Since appeals arise out of the same accident and arise

.....4/-

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fa711 & 717.09 35

out of the same common judgment, these appeals were heard

simultaneously and they are decided by this common judgment.

4. I have heard learned counsel Ms Anita Mategaonkar

for the appellant/the Insurance Company and learned counsel Shri

Bharat Vora for respondent No.1, who will be referred to as

claimants in this common judgment. Both learned counsel

vehemently made their respective submissions to support their

briefs. With their able assistance, I have gone through the

impugned judgment and award.

5. It is contention of learned counsel for the Insurance

Company that the Insurance Company ought to have been

absolved by the Tribunal because of breach of policy inasmuch as

according to the Insurance Company, passengers travelling in ill-

fated jeep were passengers for fare. It is also another contention of

learned counsel that there were passengers exceeding 10 in

numbers, that is also another breach. Learned counsel, therefore,

submitted that the Tribunal ought not to have granted

compensation to injured persons.

.....5/-

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fa711 & 717.09 35

6. Per contra, learned counsel for claimants supported

the judgment and reasoning supplemented by learned Chairman of

the Tribunal and he prayed for dismissal of appeals.

7. It is not in dispute that on 23.4.2002 an accident took

place near Kalamb Wardha Road at around 1:15 a.m.. It is also not

in dispute that in the said accident one Shobha lost her life. It is

also not in dispute that injured persons were travelling in ill-fated

jeep having registration No.MH-29/F/352 and it was rashly driven

by Vinod Madhukar Amate who is not respondent in these appeals.

8. According to injured Pandurang, he sustained

fractures below and above right eye and he was brought initially to

the Government Medical College at Yavatmal and, thereafter, he

was referred to CHMS Hospital at Nagpur and he was injured

patient for about 20-21 days. Referral letter issued by the

Government Medical College at Yavatmal is at Exhibit-51 and

discharge summary issued by CHMS Hospital at Nagpur is at

Exhibit-52. Pandurang, also filed discharge card issued by

Dr.Salpekar and the said is at Exhibit-53 which indicates that he

.....6/-

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fa711 & 717.09 35

was admitted in private hospital for urinal problem and advised for

operation. It is not in dispute at all before this Court that

Pandurang sustained depressed fracture to zygoma right side,

depressed fracture to face, multiple fractures to chest ribs, right

scapula with long contusion and other various injuries. Pandurang

claimed that he suffered 42% permanent disability. For the said,

he produced on record disability certificate of Dr.Dabhere.

Learned Chairman of the Tribunal noticed that extent of disability

is not proved conclusively because of non-examination of the said

doctor. However, learned Chairman of the Tribunal recorded a

finding that Pandurang suffered disability to the extent of 30% in

view of discharge card issued by the Government Hospital at

Yavatmal. I see no reason not to concur with reasoning given by

learned Chairman of the Tribunal. Further, even before this Court

it was not at all challenged that Pandurang did not suffer fracture

injuries.

9. According to injured Shankar, he sustained fracture to

ribs and head injuries. He was admitted in the Government

.....7/-

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fa711 & 717.09 35

Medical College at Yavatmal for two days. His discharge card

(Exhibit-56) issued by the Government Medical College at

Yavatmal confirmed evidence of Shankar that he sustained head

injuries. Shankar has also produced permanent disability

certificate issued by Dr.Dabhere showing that he suffered 26%

permanent disability. However, the said doctor is not examined.

Learned Chairman of the Tribunal found that evidence was not

seriously challenged at all when he was cross-examined in respect

of injuries coupled with the fact that discharge certificate (Exhibit-

56) shows that Shankar suffered head injuries. No different view

can be taken than the view taken by learned Chairman of the

Tribunal insofar as Shankar is concerned that he has suffered 10%

disability.

10. It is also not in dispute that injured Pandurang and

Shankar are agriculturists by their profession and at the time of the

accident their age was 45 years. According to injured Pandurang,

he was earning Rs.7000/- per month. No documentary evidence

was produced before Court below to substantiate the said claim.

.....8/-

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However, in his cross-examination it is brought on record that he

owns a land though dry crop land. In this view of the matter, no

exception can be taken to finding recorded by learned Chairman of

the Tribunal that annual income of Pandurang must be at

Rs.15000/- per month.

11. Similarly, learned Chairman of the Tribunal also

reached to conclusion that early income of injured Shankar must

be at Rs.15000/- per month and I see no reason to take a different

view after going through the entire record.

12. Learned Chairman of the Tribunal, looking to age 45

years of injured Pandurang and injured Shankar, applied multiplier

of 15. In my view, no exception can be taken to that finding also

in view of law laid down by the Honourable Apex Court in the case

of Smt.Sarla Verma and ors vs. Delhi Transport Corporation and

anr reported at AIR 2009 (Vol.96) SC 3104.

13. Now, coming to contention put forth by the Insurance

Company that there was a breach of policy, it is not in dispute that

on the day of the accident motor vehicle i.e. Mahindra and

.....9/-

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fa711 & 717.09 35

Mahindra Jeep having registration No.MH-29/F/352 was duly

insured with the Insurance Company. Exhibit-38, Insurance Policy

shows that it was for 9+1 passengers. According to the Insurance

Company, more than 15 passengers were travelling in the Jeep

and, therefore, there is a breach of conditions of the policy.

Another contention of the Insurance Company is that injured

persons were passengers for fare. In view of these two specific

contentions, burden was on the Insurance Company to prove that

there were more than 10 passengers in the ill-fated Jeep at the

time of the accident and injured persons boarded on the said Jeep

as passengers for fare. Surprisingly, nobody on behalf of the

Insurance Company entered into witness box to substantiate its

claim. Further, cross-examinations of injured persons show that

nothing could be brought on record to show that there were more

passengers than the limit as stated in the Insurance Policy.

Evidences of injured persons specifically state that they did not pay

any fare. Further, in the impugned judgment, learned Chairman of

the Tribunal recorded finding that Insurance Policy (Exhibit-38)

clearly indicates that extra premium of Rs.500/- was paid to cover

.....10/-

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fa711 & 717.09 35

risk of 10 unnamed passengers. Nothing could be pointed out

before this Court to challenge the said finding.

14. Evidences injured Pandurang and Shankar show that

they were to attend engagement ceremony of nephew of

Pandurang who is also related to deceased Shobha and they did

not pay any amount as fare. In view of this, there is no other

option than to reject the contention raised by the Insurance

Company and accordingly the contention in that behalf made on

behalf of the Insurance Company stands rejected.

15. Insofar as quantum is concerned, there is no challenge

by the Insurance Company. Similarly, there is no cross appeal filed

by claimants/injured that less compensation was given to them.

Resultantly, I pass following order:

ORDER

(1) First Appeal Nos.711/2009 and First Appeal No.717/2009

stand dismissed.

(2) Judgment and award dated 7.11.2008 passed by learned

.....11/-

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fa711 & 717.09 35

Chairman , Motor Accident Claims, Tribunal, Yavatmal in Claim

Petition Nos.42 and 43/2003 is hereby confirmed.

(3) Respondent No.1, Pandurang s/o Vithobaji Samrutwar, in First

Appeal No.711/2009, and respondent No.1, Shankar s/o Ganpat

Buddewar, in First Appeal No.717/2009, are entitled to withdraw

amount along with accrued interest which is deposited in the

Motor Accident Claims Tribunal at Yavatmal.

Both first appeals stand disposed of accordingly. No

costs.

JUDGE

!! BRW !!

...../-