Citation : 2022 Latest Caselaw 2221 Bom
Judgement Date : 7 March, 2022
fano. 1142.14.odt
1/23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FIRST APPEAL NO.1142 OF 2014
WITH
CIVIL APPLICATION (CAF) NO.3228 OF 2014
1. Royal Sundaram Alliance Insurance
Company Ltd. Subramaniam Building,
IInd Floor, No.1
Club House Road, Annasalai,
Chennai-600002
Through Mr. Manish S. Waghmare,
Manager Legal
(Original Opponent No.3)
.... APPELLANT
// VERSUS //
1. Mrs. Vinaya Undaybabu Shah
Age:- 35, occupation: Household
2. Udaybabu Ratanchand Shah
Age-59 years, Occupation: Business
Both R/at-14, Bhakti, 402, Ghorpadi
Peth, Pune 411002
3. Deve Bahadur, son of Man Bahadur,
Age-23 years, Occupation : Chauffeur
R/at- VIII Nagle, Charandas, Phase: II
Noida, G.B. Nagar, Gaziabad, Uttar Pradesh
4. Miss Vandana d/o Tejvir Singh
Chaoudhari
Age: 22 years, Occupation: Business
R/at-House No.36, Gali No.1 (B), Durgapuri
Extension, Delhi-110093
(Original Opponents No.2)
....RESPONDENTS
fano. 1142.14.odt
2/23
__________________________________________________________
Mr. Nikhil Mehta, learned counsel for the appellant.
Mr. Sumit Khanna, learned counsel alongwith Ms Shweta Rathod and Mr.
Pravin Bhoi, learned counsel alongwith Ms. Sneha Sanap, Advocate for the
respondent Nos. 1 and 2.
___________________________________________________________________
CORAM : V. G. BISHT, J.
Date on which arguments were heard:- 24/02/2022
Date on which the judgment is pronounced :- 07/03/2022
JUDGMENT: (Per: V. G. BISHT, J.)
1. Heard learned counsel for the parties.
2. Rule. Rule made returnable forthwith. By consent of
the learned counsel for the parties, appeal is taken up for final
hearing.
3. This Appeal and Cross Objection arises from the
judgment and order of the learned Member, Motor Accidents
Claims Tribunal, Pune passed in M.A.C.P. No.247/2004 on
13.06.2014.
4. The brief facts of the case are that the applicants are
parents of deceased Shreyans Udaybabu Shah. The deceased
was required to attend urgent supervision on his working site at fano. 1142.14.odt
Dharchula, State of Uttaranchal. He was at Delhi at such time.
The deceased requested his friend Tejwir Singh of New Delhi to
provide a car with Chauffeur, who accordingly arranged a Tata
Indica car bearing registration No. DL 5 CB 5279.
5. On 23.02.2013 at about 4.30 a.m. at Gram Talli
Gwadi, Ban-Kot Town road, the driver of the car i.e. opponent
No.1 in a negligent manner took a wrong turn on left side
instead of taking turn to the right side to Pithoragarh. Because of
that the car got turtled and opponent driver thrown out the car
but deceased remained inside. Owing to the impact, deceased
sustained serious injuries and succumbed to those injuries.
Accordingly offence was registered.
6. According to the applicant-parents at the time of
death of the deceased, the deceased was 27 years old and was
looking after the business of Electrical Engineering and joined as
a partner in claimant No.2 with the firm M/s. Mahati Electricals
and his last average monthly income was Rs.1 Lac. They
accordingly, claimed total sum of Rs.1,85,32,854/- on all
permissible heads.
fano. 1142.14.odt
7. On appreciation of material before it, the tribunal
partly allowed the claim with proportionate costs and awarded
compensation of Rs.1,17,14,000/- alongwith costs and
proportionate interests at the rate of 9% per annum on
Rs.1,16,64,000/- from the date of application till realization.
There against the appellant-Insurance Company has preferred
the present appeal and the respondents by way of cross-objection
sought enhancement of the compensation.
8. Mr. Mehta, learned counsel for the Insurance
Company, at the outset assailed the impugned award on the
ground that the learned Member failed to appreciate that the
insured vehicle has been used for hire and reward at the time of
accident and thus, there was breach of Insurance Policy. Learned
counsel then invited my attention to the various grounds viz. (h)
(i)(k)(l)(m)(n)(p) and (q). I have carefully perused these
grounds. Learned counsel also canvassed before me that since
the deceased was partner of the applicant No.2 and the fact that
the applicant No.2 was driving income from the business of
partnership company, the compensation ought to have been
allowed only to the extent of loss of managerial skills (of
deceased) and nothing else. For all these reasons learned fano. 1142.14.odt
counsel sought exoneration and in the alternate submitted that
at least the learned Member could have directed to pay the
compensation first and recover from the owner and driver of the
vehicle.
9. Mr. Sumit Khanna, learned counsel for the respondent
Nos. 1 and 2, on the other hand, vehemently opposed the
submissions of learned counsel for the appellant and would
submit that since the Insurance Company is coming out with a
case of breach of contract, the burden of proof was on it to
establish the same by adducing cogent and convincing evidence.
According to learned counsel, no such evidence is forth coming,
Supporting the impugned order, learned counsel also assailed
the submission of learned counsel for the appellant that
applicants were only entitled to loss of managerial skills and
nothing more. In this regard learned counsel placed reliance in
National Insurance Company Limited Vs. Birender, (2020) 11
SCC 356.
10. Coming to the cross-objection learned counsel
submits that learned Member while calculating/determining the
income of deceased, failed to consider the share of profit from fano. 1142.14.odt
the partnership firm earned by deceased as the same is tax-
exempt income in the hands of partner and are excluded as
exemption under Section 10(2A) read with 40 (b) of the Income
Tax, Act, 1961. This being a computational error, needs to be
rectified at the hands of this Court, urged learned counsel.
11. I have considered the rival submissions.
12. The factum of accident resulting in death of the
deceased, age and occupation are not in dispute. I am
concerned, with the points, as raised by learned counsel for the
appellant, in respect of breach of the terms of the policy and
income of deceased.
13. When the Insurance Company takes the plea that it is
not liable to pay compensation or to indemnify the insured as the
vehicle in question was driven in breach of the terms of the
policy, the insurance company has to discharge the burden by
placing legal and cogent evidence before the Tribunal.
14. In case of Insurance Co. Ltd. Vs. Swaran Singh and
others (2004) 3 SCC 297 the Hon'ble Apex Court has made fano. 1142.14.odt
following observation at para 69:-
"The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.
"While summarizing finding the Hon'ble Apex Court
has further observed at para 110 as under:-
"The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable fano. 1142.14.odt
care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2)of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising fano. 1142.14.odt
in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured fano. 1142.14.odt
can be taken recourse to by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
The Hon'ble Apex Court further held that the Insurance
Companies are, however, with a view to avoid their liability must
not only establish the available defence(s) raised in the said
proceedings but must also establish "breach" on the part of the
owner of vehicle, the burden of proof wherefore would be on
them.
15. From the above proposition of law it is more than
clear that the person who alleges breach must prove the same.
The Insurance Company is thus required to establish the said
breach by cogent evidence. Therefore, it becomes necessary to
find out whether the onus of proof as required by Section 149 of
Motor Vehicle Act, 1988 has really been discharged by Insurance
Company or not.
16. The Insurance Company in support of claim of breach
of policy examined its Legal Officer, namely, Mahesh Suresh
Waghmare ( Exh. 63). It is his evidence that the Insurance Policy fano. 1142.14.odt
was valid at the time of accident. The offending car was having
private car package policy and as per the condition of policy,
owner of the vehicle and his relatives travelling in the car were
covered under the policy. The persons hiring car were not
covered in the Insurance Policy. He then produced the policy
which came to be marked at Exh. 64.
17. It is his further evidence that the deceased was
unauthorized passenger of the offending car and as he was an
unauthorized passenger, their company is not liable to pay
compensation.
18. Two things can be noted from the examination-in-
chief of the above witness. First, according to him, it was a
private car package policy and only owner of vehicle and his
relatives were covered by that policy. Second, the deceased
being an unauthorized passenger, the company is not liable to
pay compensation.
19. Interestingly, in the cross-examination this witness
admits that the terms and conditions of policy were not enclosed
alongwith policy. He further admits that he cannot say on which
conditions policy was issued. He denies the suggestion, when fano. 1142.14.odt
given to him, that the policy in question is comprehensive policy
and it being so, passengers of vehicle were covered under it.
20. The said witness then states in his cross-examination
that he has no document to show that offending car was being
used for hire and reward. According to him, there was no specific
mention that only owner and his relatives were covered in the
policy. He further stated that he has no documents to show that
deceased was traveling unauthorizedly. Lastly, he states that in
the year 2003 since he was not in service of Insurance Company
in question he has no personal knowledge about policy in
question.
21. It is significant to note that the essential and requisite
terms and conditions of the policy were not produced before the
learned Member of Tribunal at the time of adducing evidence by
the witness of Insurance Company. Even the witness was not
aware of the terms and conditions on which the policy in
question was issued. In short this witness had no personal
knowledge about the necessary terms and conditions of the
policy. Simply producing the Insurance Policy will not prove
everything and more particular the breach as claimed by the
Insurance Company. What is disheartening to note is that fano. 1142.14.odt
although Insurance Company has put up a brave defence of the
deceased being an unauthorized passenger and that offending
vehicle was taken on hire and reward but there is no shred of
evidence to substantiate the same. Further, no evidence is forth
coming to show that only owner and his relatives were covered
in the policy.
22. Learned Member of Tribunal was right in his
observation that the Insurance Company neither examined the
driver of the vehicle nor any other witness to prove that the
illfated vehicle was in fact hired by the deceased. For the
aforesaid reasons, I do not find any perversity in the findings of
the learned Member that the Insurance Company has failed to
discharge its burden to prove that the insurance vehicle was used
for hire and reward in breach of terms and conditions of
Insurance Policy.
23. I may add here that it is settled law with respect to
the "comprehensive/package policy" that gratuitous occupant of
private car is covered under it. In case of National Insurance Co.
Ltd. Vs. Balakrishnan and another (2013) 1 SCC 731 the Hon'ble
Apex Court has quoted with approval as under :- Para 25 and 27 fano. 1142.14.odt
25. "It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:-
"27.In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC's directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case."
"27. In view of the aforesaid legal position, the question that emerges for consideration is: whether in the case at hand, the policy is an "Act Policy" or "Comprehensive/Package Policy"? There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a "comprehensive policy" but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a "package policy" to cover the liability of an occupant in a car."
In view of above, I do not find merit in the submission
of learned counsel for the Insurance Company that there was
failure on the part of learned Member to appreciate that the fano. 1142.14.odt
insured vehicle had been used for hire and reward at the time of
accident and thus, there was breach of Insurance Policy.
24. Since the breach of insurance policy has not been
established, the alternate submission of pay and recover also
looses steam.
25. The next submission of learned counsel for the
appellant is that learned Member failed to appreciate that at the
most respondent Nos. 1 and 2 (original claimants) could be
entitled to compensation to the extent of loss of managerial skills
of the deceased and nothing more, inasmuch as, admittedly, the
business of partnership firm and the company was still
continuing and the claimants were drawing income from the
same. Learned counsel also raised the grievance that learned
Member failed to appreciate the ratio laid down in the case of
New India Assurance Company Limited Vs. Yogesh Devi and
others (2012) 3 SCC 613.
26. On the other hand, learned counsel for the
respondents submitted that though the claimants are also
partner in business which the deceased was carrying and the fano. 1142.14.odt
partnership firm continued even after the death of deceased,
compensation cannot be declined to the claimants on the ground
that they are still drawing benefit of the partnership business.
Learned counsel to substantiate his submission has placed
reliance in Rukmani Devi Vs. Om Prakash (1991) ACJ, (SC) page
3 and National Insurance Company Limited Vs. Birender and Ors
(2020) 11 SCC 356.
27. I have carefully gone through the decisions relied on
by learned counsel for the parties in New India Assurance
Company Vs. Yogesh Devi and others (supra). Owner of the
buses died in motor accident. It was specifically contended that
deceased was earning Rs.3900/- as driver of buses. Motor
Accident Claims Tribunal awarded the compensation of
Rs.10,00,000/-. However, High Court enhanced compensation to
Rs.30,72,000/- by taking notional income of deceased as
Rs.24,000/-. While examining the legality of the said findings the
Hon'ble Apex Court held that quantum of income depends upon
various factors likewise, income derived out of three buses would
still accrue to family of deceased. As deceased was managing
buses during his lifetime, now respondents/claimants needed
someone to mange buses and thus payment made for driver and fano. 1142.14.odt
manager of their buses would be loss of income to respondents/
claimants. Hon'ble Apex Court further found that no evidence
was adduced to show loss of income in this respect and
therefore, further found that the computation made by High
Court was neither based on any evidence nor on right logic.
28. In my considered view the factual position obtaining
in the case cited (supra) and the case in hand are dissimilar and
therefore, though learned Member did not discuss the facts as
noted herein above but was right in holding that the ratio laid
down therein cannot be made applicable to the case in hand.
29. As against above, in Rukmani Devi and Ors. (supra)
the deceased who was husband of appellant died in bus accident.
Learned Second Additional District Judge Muzaffarpur acting as
Motor Accident Claims Tribunal awarded the amount of
Rs.1,25,000/- as claimed towards compensation. On appeal the
High Court observed that even after death of deceased his
partnership business was continued by the family member
having deceased's son as partners of the firm. High Court further
found that partnership business was being carried on and
claimants were deriving benefit from that business and they had fano. 1142.14.odt
not been put to any pecuniary loss. On that reasoning the High
Court reduced the compensation from Rs.1,25,000/- to
Rs.48,600/- However, the Hon'ble Apex Court did not agree
with the High Court and found no justification whatsoever to
reduce the compensation. Accordingly the appeal was allowed in
toto and award of Rs.1,25,000/- was affirmed.
30. Thus, the factual position in the case of Rukmani Devi
and others vis-vis the case in hand is quiet similar and therefore,
learned Member of the Tribunal was justified in following the
decision given in Rukmani Devi's.
31. Similarly, in case of National Insurance Company
Limited Vs. Birender (supra) the Hon'ble Apex Court held that it
is thus settled by now that the legal representatives of the
deceased have a right to apply for compensation. Having said
that, it must necessarily follow that even the major married and
earning sons of the deceased being legal representatives have a
right to apply for compensation and it would be the bounden
duty of the Tribunal to consider the application irrespective of
the fact whether the concerned legal representative was fully
dependent on the deceased and not to limit the claim towards fano. 1142.14.odt
conventional heads only.
32. Thus, having regard to the pronouncements made in
the case of Rukmani Devi and others (supra) and as also in
National Insurance Company Limited Vs. Birender Kumar and
others (supra), I do not find any infirmity with the approach of
learned Member of the Tribunal. Consequently, the submission in
this regard advanced by learned counsel for the appellant also
stands rejected.
33. Learned counsel for the appellant during the course of
argument also submitted that learned Member has wrongly
relied upon the income tax returns for the financial year 2003-04
to have assessed the income of deceased. According to learned
counsel the accident in question took place on 23.02.2003 and
therefore, the income that shall have been taken for assessment
of compensation shall have been based on previous year returns.
34. It is well settled that the income on the date of death
ought to have been taken into consideration after deducting
income tax payable. Since admittedly the deceased died in an
accident occurred on 23.02.2003, in my considered view, learned
Member of Accident Claims Tribunal was right in taking into fano. 1142.14.odt
consideration the income tax returns of the assessment year
2003-04. The submission of learned counsel for the appellant in
this regard is bereft of logic and cannot be accepted.
35. This brings me to the cross-objection of the
respondents. In Urmila Devi and Ors. Vs. Branch Manager,
National Insurance Company Ltd. and Another the Hon'ble Apex
Court at para 24 held as under:-
"24. A conjoint reading of the provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the Award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross- objection to the decree which he could have taken by way of appeal."
36. Although no formal cross-objection has been filed
by the respondent, but in view of above proposition of the
Hon'ble Apex Court learned counsel is well within his right to
raise the cross-objection before this Court.
37. According to learned counsel for the respondents
learned Member while calculating/determining the income of
deceased failed to consider the share of profit earned from the fano. 1142.14.odt
partnership firm by the deceased as the same is tax exempt
income in the hands of the partner and is excluded under Section
10(2A) read with Section 40 (b) of Income Tax Act, 1961.
38. Exh. 47 i.e. income tax return for the assessment year
2003-04 which was pressed by learned Member for recokning
the income of deceased is very much on record. Under the head
computation of total income at serial No.3, it is shown that an
amount of Rs.5,39,082.00 was under exemption under Section
10 of the Income Tax Act, 1961. As per Section 10(2A) share of
profit received by a partner from the firm is exempt from tax in
the hands of the partner. Therefore, it appears that
Rs.5,39,082/- as share of profit from the firm, was subtracted
while calculating gross taxable income. It is pertinent to
mention that share of profit is part of income being derived and
same is subtracted as per provision of law to determine the tax
liability. Therefore, it was wrong on the part of learned Member
to not include the said amount of Rs.5,39,082/- to the assessed/
determined income of the deceased.
39. Thus, the calculation of compensation payable under
Section 166 of Motor Vehicle Act, after adding the share of profit fano. 1142.14.odt
from partnership as part of income will be as follows:-
( In Rs.) Calculations
(i) Gross Annual salaries per ITR (2003-2004) 9,47,364
(ii) Profit share from partnership firm as per ITR 5,39,082
(iii) Total Gross Income as per ITR [(i) + (ii)] 14,86,446
(iv) Tax paid as per ITR 2,64,188
(v) Annual income post tax [(iii) - (iv)] 12,22,258
(vi) Addition for Future prospect @ 50% 6,11,129
(vii) Annual Income with Future prospect [ (v) + (vi)] 18,33,387
(viii) Deduction towards personal expenses @ 50% 9,16,694
(ix) Annual income for calculating compensation 9,16,694
[(vii) - (viii)]
(x) Multiplier (as per sarla verma/Pranay Sethi case) 17
(xi) Loss of future income (total income x multiplier) 1,55,83,790
(xii) Funeral expense 15,000
(xiii) Loss of estate 15,000
(xiv) Loss of consortium @ 40,000 x 2 80,000
(xv) Total compensation payable 1,56,93,790
40. Appellant - Insurance Company is, therefore, directed
to pay Rs.1,56,93,790/- alongwith interest @ 9% p.a. from the
date of filing of the claim petition till payment, less that already
deposited, within a period of eight weeks from the receipt of this fano. 1142.14.odt
judgment.
41. In the result,
(i) Appeal is dismissed. No costs.
(ii) Cross-objection is allowed to the extent
indicated (para- 39) above.
Orders accordingly.
42. In view of dismissal of appeal, Civil Application
No.3228 of 2014 also stands disposed off.
(V.G. BISHT) JUDGE manisha
TRUPTI SADANAND BAMNE Digitally signed by TRUPTI SADANAND BAMNE Date: 2022.03.09 13:24:16 +0530
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