Shriram Gereral Insurance ... vs Lata Arun Mahale And Ors
2022 Latest Caselaw 4438 Bom

                                 1/9                      7 fast-31399-16.doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
                  FIRST APPEAL (ST) NO.31399 OF 2016
                                   WITH
                  CIVIL APPLICATION NO.1082 OF 2017
                                   WITH
                  CIVIL APPLICATION NO.1081 OF 2017


Shriram General Insurance Co. Ltd.           ..     Appellant
through   Mr.Satpalsingh   Rajput,
Manager Legal

                       Versus

Lata Arun Mahale & Ors.                      ..     Respondents


                                   WITH
                 INTERIM APPLICATION NO.2781 OF 2022


Lata Arun Mahale & Ors.                      ..     Applicants

                       Versus

Shriram General Insurance Co. Ltd.           ..     Respondent
through   Mr.Satpalsingh   Rajput,
Manager Legal


                                       ...

Mr.Nikhil Mehta i/b KMC Legal Venture for the Appellant.
Mr.Deepak T. Raut for the Respondent No.1.

                                       ...



M.M.Salgaonkar




  ::: Uploaded on - 29/04/2022                    ::: Downloaded on - 29/04/2022 22:26:11 :::
                                       2/9                     7 fast-31399-16.doc


                          CORAM: BHARATI DANGRE, J.

DATED : 27th APRIL, 2022

P.C:-

1. Heard the learned counsel Mr.Mehta for the Appellant and the learned counsel Mr.Raut for the respondent No.1/claimant.

Respondent No.3, though served, has failed to appear.

2. The claimant moved an interim application bearing No.2781 of 2022, seeking withdrawal of the amount of compensation and considering that a short point is involved in the appeal and all the relevant documents are placed on record, I deemed it expedient to take up the appeal for fnal hearing.

3. The Appellant-Insurance Company has also fled Civil Application No.1081 of 2017, seeking condonation of delay of 273 days in fling the appeal. The offce note records that there is a delay of 288 days in fling the appeal. The reasons which have occasioned delay in fling the appeal are contained in para 4 of the application.

I am convinced with the justifcation offered for the delay bonafde and the delay is condoned.

The application is allowed in terms of prayer clause (a).

M.M.Salgaonkar





                                      3/9                       7 fast-31399-16.doc


4.      The      learned         counsel   for   the    appellant-Insurance

Company specifcally urged the following grounds in the appeal:-

(a) The non-involvement of the vehicle/tempo, which is held responsible for commission of the accident;

(b) The amount of Rs.10,000/- as earnings of the deceased is considered to be the notional income, without any basis;

(c) The Tribunal has assessed the income on the basis that the deceased was running a medical shop, but the evidence brought on record proved to the contrary;

(d) The consortium awarded to the claimant/wife to the extent of Rs.1,00,000/- is not sustainable and;

(e) The funeral expenses awarded to the tune of Rs.25,000/- are excess.

5. In the wake of the aforesaid submission, when the impugned Judgment is perused, it is clear that deceased Atul Chimaji Mahale, husband of the claimant and son of respondent No.3-Narmada, was riding a motorcycle and proceeding towards Mumbai by Nagar Kalyan Road on 02/05/2011 at about 4.00 p.m.. When he reached within the precinct of village Kolwadi, one tempo bearing registration No.MH-04-EB-5603 coming from Kalyan side in high speed, dashed the motorcycle of the deceased, resulting into he being toppled. He sustained grievous injuries and the driver of the

M.M.Salgaonkar

4/9 7 fast-31399-16.doc

tempo, instead of attending to him, fed from the spot and did not even bother to report to the police about the said accident.

Atul succumbed to the injuries on the spot and C.R.No.27 of 2011 came to be registered against the driver of the vehicle, by invoking Sections 279, 337, 338, 304(A) of the Indian Penal Code and under Section 184, 134-B of the Motor Vehicles Act.

6. A claim for compensation came to be fled before the M.A.C.T., Pune by his wife against the owner of the tempo as well as the Insurance Company, with whom the vehicle was insured. Mother of the deceased Smt.Narmada Mahale was also impleaded as respondent No.3.

The claim was premised, on the ground that Atul was aged 41, when he met with an accident and he had obtained certifcate from Maharashtra State Pharmacy Council in the year 1996 and registered himself as a Pharmacist. It was also pleaded that he was running medical store at Mouje Kamathe and earning an income of Rs.25,000/- per month. Claiming that the claimant was dependent upon him and on his death, she has suffered severe loss, compensation of Rs.30,00,000/- was claimed from the opponents jointly and severally, by fling claim petition under Section 166 of the Motor Vehicle Act.

7. Upon the petition being fled, opponent No.1 though served, remained absent and, therefore, claim proceeded ex- parte against him.

M.M.Salgaonkar





                                      5/9                   7 fast-31399-16.doc

8. Opponent No.2 i.e. the Insurance Company fled it's written statement (Exh.23). It did not dispute that the offending tempo was insured with it and was covered by a valid policy in force. It was, however, denied that the accident has taken place due to rash and negligent act of the driver. The earnings of the deceased as well as his avocation and running a medical store was specifcally denied.

Opponent No.3 i.e. the mother of the deceased also fled a written statement and on account of dispute between herself and the daughter-in-law, though did not dispute the accident, claimed that her son drove the motorcycle in high speed and committed suicide. In any case, she did not step into the witness box and her defence was not taken into consideration.

9. The question that arose for determination before the Tribunal was about the loss suffered to the claimant, on account of death of her husband. As regards the defence of the Insurance Company about non-involvement of the vehicle, it is to be noted that the claimant entered into the witness box, but admittedly she was not an eye witness. However, she produced on record the copy of the complaint and the supplementary statement of Nilesh Mahale as well as the spot panchnama, inquest panchnama, documents of motorcycle of the deceased etc. The copy of the certifcate issued by the Maharashtra State Pharmacy Council in the name of the deceased is also brought on record through her.

M.M.Salgaonkar





                                  6/9                 7 fast-31399-16.doc

10. The Tribunal, on perusal of the FIR as well as the spot panchnama, appreciated the manner in which the accident took place in paragraph 11 of the Judgment and arrived at the conclusion that deceased Atul was driving his motorcycle on correct side of the road, but the tempo being driven from Kalyan side sprint at his motorcycle. Observing that the driver of the tempo drove the vehicle rashly and negligently in high speed, without following the traffc rules, an inference was drawn that the accident took place on account of sole negligence on the part of the tempo driver.

Reliance was also placed on the other investigation papers, which included the statements of the witnesses, resulting into registration of crime against the driver of the tempo.

In absence of the Insurance Company examining any independent witness to refute the claim in the petition, the Tribunal recorded that the opponent No.2 has not adduced any evidence refuting the evidence of the claimant and in absence of the same, rendered a fnding that the accident took place due to the negligence of the driver of the vehicle and the deceased is not responsible for the accident.

I see no reason to disturb the said fnding of the Tribunal, which is based on the evidence brought before it.

11. Turning to the quantum of compensation, it can be seen that the deceased was a registered pharmacist with the Maharashtra State Pharmacy Council and the certifcate to that effect (Exh.51) is placed on record.

M.M.Salgaonkar





                                     7/9                         7 fast-31399-16.doc

The claim of the claimant is that her husband was running a medical shop. Relying upon the statement of Nilesh to the effect that deceased Atul was his uncle and he was serving in the medical shop at Mumbai, the Tribunal has disbelieved the version of the claimant that he was running a Medical & General Shop in his own name and rightly so. Further recording that no positive evidence has been brought on record by the claimant to show that the deceased was running the medical shop of his own, the Tribunal reached a conclusion that he was serving in the medical shop at Mumbai and his earnings were presumed to be Rs.10,000/- per month atleast. The Tribunal justifed that said amount of Rs.10,000/- specifcally in the wake of his registration with the Maharashtra State Pharmacy Council and based on this, the compensation came to be computed.

The Tribunal has not awarded any sum towards future income by agreeing with the contention of the Insurance Company that the claimant had not produced any documentary evidence to show that the deceased was not in the employment, but was running his own shop and no amount towards future income was added in the income of the deceased. The claimant has not raised any challenge about the said fnding and, hence, it has reached fnality.

Though the income of the deceased was computed as Rs.10,000/- per month, the Tribunal has refrained itself from awarding any compensation in the form of future prospects.

M.M.Salgaonkar





                                  8/9                     7 fast-31399-16.doc

12. The Tribunal has awarded an amount of Rs.1,00,000/- towards loss of consortium to the widow of the deceased as well as his mother, who was impleaded as opponent No.3. In the wake of the decision of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Satinder Kaur (2020 ACJ 2131), the wife is entitled for loss of spousal consortium so also his mother, on account of loss of her son, is entitled for flial consortium to the tune of Rs.40,000/- each. The amount of Rs.1,00,000/-, therefore, must undergo a cut, under the caption of loss of consortium. The Judgment, therefore, requires modifcation to that extent.

13. As far as the funeral expenses is concerned, since the admissible amount for expenses is also on a higher side, being awarded as Rs.25,000/-, which ought to have been Rs.15,000/- .

With the aforesaid modifcation effected on two counts in the impugned judgment i.e. under the head of loss of consortium and funeral expenses, remaining amount of compensation awarded by the Tribunal under the impugned Judgment is upheld.

Since I do not fnd any substance in the contention of the learned counsel for the appellant-Insurance Company about the non-involvement of the offending vehicle, the Judgment requires no modifcation.

Accordingly, the First Appeal is partly allowed.

M.M.Salgaonkar





                                  9/9                  7 fast-31399-16.doc

14. The amount of compensation, which is re-worked out, shall be distributed amongst the claimant and respondent No.3 strictly in compliance with the directions by the learned Tribunal, in the ratio of 75:25.

15. The statutory deposit shall be remitted to the Tribunal and is permitted to be appropriated by the Appellant.

16. In view of the disposal of the First Appeal, pending application, if any, stands disposed off.

( SMT. BHARATI DANGRE, J.)

M.M.Salgaonkar