Bombay High Court
Sangita Mohan Jarange And Ors vs Kalidas Alias Bandu Tukaram Maske ... on 6 September, 2021
Bench: R. G. Avachat
FA-4404-08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.4404 OF 2008
1. Sangita w/o. Mohan Jarange
Age : 29 years, Occ. Household,
2. Archana d/o. Mohan Jarange,
Age : 14 years, Occ. Education
3. Pranita d/o. Mohan Jarange,
Age : 11 years, Occ. Education
4. Pooja d/o. Mohan Jarange,
Age : 06 years, Occ. Education
5. Onkar s/o. Mohan Jarange,
Age : 06 years, Occ. Education
claimant nos.2 to 5 minors and
under guardian of their mother
claimant no.1 Sangita w/o. Mohan
Jarange
6. Shahadeo s/o. Appa Jarange,
Age : 56 years, Occ. Agri.
7. Kamalbai w/o. Shahadeo Jarange,
Age : 51 years, Occ. Household,
Both r/o. Kuslumb, Tq. Patoda, ..Appellants
Dist. Beed (orig. claimants)
Vs.
1. Kalidas @ Bandu Tukaram Maske,
Age:Major, Occ.Driver,
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r/o. Deokheda, Tq. Majalgaon,
Dist. Beed
2. Shaikh Hasan s/o. Shaikh Gafar,
Age : Major, Occ. owner,
r/o. Kitti Adgaon, Tq. Majalgaon,
Dist. Beed
3. The New India Assurance Co. Ltd.
through its Branch Manager,
Branch Jalna Road, Beed ..Respondents
----
Mr.Sachin Deshmukh, Advocate for appellants
Mr.K.K.Kulkarni, Advocate for respondent no.1
Mr.R.P.Dhase, Advocate for respondent no.2
Mr.A.G.Kanade, Advocate for respondent no.3
----
CORAM : R.G. AVACHAT, J.
DATE : SEPTEMBER 06, 2021
JUDGMENT :-
This is an appeal under Section 173 of the Motor
Vehicles Act. The appellants herein are original claimants in the
petition, bearing Motor Accident Claim Petition No.111 of 2007,
for compensation on account of death of Mohan in an accident
involving motor vehicles. The Tribunal, on appreciation of the
evidence in the matter, dismissed the petition, on the ground
that late Mohan himself was responsible for his death.
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FACTS:-
2. It so happened that on 24.05.2007 at about 10.30
a.m., deceased Mohan was proceeding on his motorbike along
Beed-Ahmednagar highway. It was the deceased who was
riding the motorbike. A Maruti OMNI van bearing registration
No.MH-12-P-1503 was coming from opposite side. A collision
between the two vehicles took place. As a result, deceased -
Mohan suffered multiple injuries and died on the way to
hospital.
3. Heard learned counsel appearing for the parties.
4. Mr.Sachin Deshmukh, learned counsel for the
appellants-claimants, would submit that on investigation of the
crime, driver of Maruti OMNI van was proceeded against by
filing charge sheet. The owner and driver of Maruti OMNI van
did not participate in the claim petition before the Tribunal. As
such, the averments in the claim petition went unchallenged.
The Tribunal ought not to have entirely relied on the site
panchnama, which was drawn sometime after the accident. No
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witness was examined on behalf of the respondent-insurance
company. In this factual backdrop, the Tribunal erred in
holding the deceased to have been clusively responsible for the
accident and his death as well.
On the question of quantum, learned counsel would
submit that the deceased was 32 years of age. He is survived
by his widow, four minor children and parents. The deceased
was an agriculturist by profession. He was a milk vendor too.
The monthly income of the deceased was Rs.25,000/-. Due to
untimely death of deceased - Mohan, the claimants have
suffered incalculable loss. He has, therefore, urged for grant of
compensation of more than Rs. Six Lakhs.
5. Mr.K.K.Kulkarni, learned counsel for respondent
no.1, driver of Maruti OMNI van, would submit that the driver
has been acquitted of the criminal case.
6. Mr.A.G.Kanade, learned counsel for respondent no.3
- insurance Company, would submit that the site-panchnama
(Ex.37/C) speaks for itself. The deceased - Mohan, riding the
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motorbike, went to the extreme wrong side of the road and
dashed against oncoming Maruti OMNI van. Learned counsel
read out the observations made by the Tribunal, holding the
deceased to have exclusively been responsible for the accident.
On the question of quantum, learned counsel would submit that
there was no concrete evidence regarding income of the
deceased. He, therefore, urged for taking it at Rs.2,000/- per
month for grant of compensation, if any.
7. Admittedly, the accident involving Maruti OMNI van
bearing registration no.MH-12-P-1503 and the motorbike
bearing registration no.MH-16-W-7297 took place on
24.05.2007 on Beed-Ahmednagar road. As a result of the
injuries suffered in the said accident, the motorbike rider,
Mohan, passed away. On due investigation of the crime, the
driver of the Maruti OMNI van was prosecuted. True, he
appears to have been acquitted of the charge. It needs no
mention that in a criminal case, the charge is required to be
proved beyond reasonable doubt. In a civil case, rash or
negligence may be proved on preponderance of probabilities.
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The owner and the driver of Maruti OMNI van did not file their
written statement in the petition before the Tribunal. As such,
the averments in the claim petition went unchallenged. The
respondent - insurance company, in its first breath, claimed
ignorance about the manner in which the accident took place.
It has further been averred in paragraph 11 of the written
statement as under:-
"11. .................................. It transpires
that accident occurred in middle portion of
Highway road and it is clear cut head on
collision in between motorbike and Maruti
OMNI van. Therefore, deceased
contributes the accident and while granting
compensation point of this contributory
negligence is necessary to be considered
whether it may not be equal, but some
extent towards motorcycle driver."
8. The respondent - insurance company came with a
case of it being a contributory negligence. Thus, it is surprising,
as to how the Tribunal could come to the conclusion of it being
a case of exclusive negligence or rashness on the part of
deceased - Mohan. The impugned judgment is solely based on
the scene of accident panchnama. The Investigating officer
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appears to have not drawn a sketch or map of the site. The
contents of the panchnama describes the situation at the situs.
The same was drawn a few hours after the accident. It is a
common knowledge that due to speed of vehicles involved in
the accident and as a result of the impact, the vehicles leave
the place whereat collision takes place. In the first part of the
site plan, it has specifically been mentioned that the accident
took place at the middle of the road. The respondent -
insurance company does not dispute the said fact. In view of
the same, the Tribunal ought not to have traveled beyond the
pleadings and admitted position of the contents of the site
plan. Further, the description of the site appearing in the
panchnama, is necessarily the development or the effect of
accident. It is reiterated that no eye witness has been
examined in the case. It is, therefore, not known as to how
the accident took place. From the police papers and the
averments in the written statement of the respondent-
insurance company, the only conclusion that could be drawn, is
the case of being contributory negligence. Since the accident
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took place at the middle of the road, this Court is inclined to
hold both the deceased Mohan and the driver of Maruti OMNI
van to be equally responsible for the accident. The findings
recorded by the Tribunal are, therefore, set aside.
QUANTUM:-
9. The Tribunal has not quantified the quantum of
compensation. The deceased was 32 years of age. The widow
of the deceased filed her evidence on affidavit reiterating the
averments in the claim petition except denying her case as
regards income of the deceased, there is no cross-examination.
It is true, it is for the appellants/claimants to prove their claim.
Since the appeal is continuation of the petition for
compensation, this Court proposes to award the compensation
in terms of the decisions of the Hon'ble Supreme Court, with
some variations, in the cases of (i) Sarla Verma (Smt.) and ors.
Vs. Delhi Transport Corporation and anr., (2009)6 SCC 121; (ii)
National Insurance Company Ltd. Vs. Pranay Sethi and ors.,
(2017)16 SCC 680; and (iii) Magma General Insurance Co.
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Ltd. Vs. Nanu Ram alias Chuhru Ram and ors., (2018)18 SCC
130.
10. For want of concrete evidence regarding income of
the deceased, a sum of Rs.2,000/- per month is considered as
notional income of deceased Mohan. In view of the above, the
amount of compensation payable to the claimants needs to be
worked out as under:-
Particulars Figures in
Rupees
Income of deceased per annum 24,000
(Rs.2,000/- per month x 12 months)
Addition of 40% towards future + 9,600
prospects (deceased being below (plus)
40 years of age)
:- 33,600
Since the claimants were seven in - 6,720
number, 1/5th amount is deducted (minus)
in view of Pranay Sethi's case
(supra), towards personal and
living expenses of the deceased.
:- 26,880
Applying multiplier of 16, amount of :- 4,30,080
compensation on account of loss of
dependency (Rs.26,880 x 16)
Addition of amount towards loss of + 2,80,000
consortium, in view of Pranay (plus)
Sethi's case (supra) and Magma
General Insurance's case (supra)
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Rs.40,000/- x 7 (claimants i.e.
widow, four children and
parents), would be -
Addition of funeral expenses and + 30,000
loss of estate (plus)
Amount of compensation Rs. 7,40,080/-
11. Since this Court found it to be a case of contributory
negligence in equal proportion, the appellants-claimants would
be entitled to Fifty percent of the amount of compensation
worked out herein above.
12. In the result, the appeal partly succeeds. The
impugned judgment and order is set aside. The Claim Petition
is allowed. The amount of compensation payable to the
claimants shall be Rs.3,70,040/- with 6% interest thereon,
from the date of the claim petition i.e. 04.08.2007, until the
amount is deposited. The appeal stands disposed of
accordingly.
[R.G. AVACHAT, J.]
KBP
11 FA-4404-08
