Bombay High Court

Asma Anjum Wd/O Mo. Mohasin And Others vs National Insurance Company Ltd., ... on 30 August, 2024

Author: M. W. Chandwani

Bench: M. W. Chandwani

2024:BHC-NAG:9789


                                                                    1                               33-fa-479-21j.odt



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

                       FIRST APPEAL NO. 479/2021 & CROSS OBJECTION NO. 69/2021


                    FIRST APPEAL NO. 479 OF 2021

                    National Insurance Company Ltd.,                                  (Original Respondent No. 3)
                    10, Wardhman Nagar, Old Bhandara Road,
                    Nagpur
                    Regional Office- 5th Floor, Fidvi Towers,
                    Mount Road, Sadar, Nagpur.                                                 . . . APPELLANT

                                       // V E R S U S //

                    1. Asma Anjum Wd/o. Mo. Mohasin,                                    (Original Petitioner No. 1)
                       Aged about 47 years, Occ. Household

                    2. Mo. Atif S/o. Mo. Mohasin,                                       (Original Petitioner No. 2)
                       Aged about 24 years, Occ. Education,
                       R/o. At Digras, Distt. Yavatmal.
                                                                                      (Original Respondent No. 1)
                    3. Shahnaz Parveen W/o. Mo. Shakil,
                       Aged about Major, Occ. Business
                       R/o. Seva Sadan Building, Near Masjid
                       C. A. Road, Nagpur (Old Owner of
                       Matador No. MH-31/M-8286)

                    4. Venkatsubbarao Vadelempudi,                                    (Original Respondent No. 2)
                       Aged about Major, Occ. Business,
                       R/o. Deoli, Tq. Deoli, Distt. Wardha(MS)
                       (Owner of Matador No. MH-31/M-8286)
                                                                                          . . . RESPONDENTS

                    ------------------------------------------------------------------------------------------------
                    Shri A. W. Paunikar, Advocate for appellant.
                    Shri I. M. Ghongade, Advocate for respondent no. 1.
                    Shri K. J. Topale, Advocate for respondent no. 2.
                    -----------------------------------------------------------------------------------------------

                                                                 WITH
                                                 2                               33-fa-479-21j.odt



CROSS OBJECTION NO. 69 OF 2021

Asma Anjum Wd/o. Mo. Mhasin,                                         (Original Claimant No. 1)
Aged 47 years, Occ. Household,
R/o. Taj Nagar, Digras, Tq. Digras,
Dist. Yavatmal.                                                  . . . CROSS-OBJECTOR

                  // V E R S U S //

1. National Insurance Company Ltd.                                (Original Respondent no. 3)
   10, Wardhman Nagar, Old Bhandara
   Road, Nagpur, Regional Office 5th Floor,
   Fidvi Towers, Mound Road, Sadar,
   Nagpur.

2. Mo. Atif S/o. Mo. Mohasin,                                        (Original Claimant no. 2)
   Aged about 24 years, Occ. Education,
   R/o. Taj Nagar, Digras, Tq. Digras,
   Dist. Yavatmal.

3. Shahnaz Parveen W/o. Mo. Shakil,                               (Original Respondent no. 1)
   Aged Major, Occ. Business,
   R/o. Sewa Sadan Building, Near
   Masjid, C. A. Road, Nagpur
   (Old Owner of Matador No.
    MH-31/M/8286).

4. Venkat Subbarao Vadelempudi                                    (Original Respondent no. 2)
   Aged about Major, Occ. Business
   R/o. Deoli, Tq. Deoli,
   Dist. Wardha (MS).
  (Owner of Matador No MH-31/M/8286)                                  . . . RESPONDENTS

------------------------------------------------------------------------------------------------
Shri I. M. Ghongade, Advocate for cross-objector.
Shri A. W. Paunikar, Advocate for respondent no. 1.
Shri K. J. Topale, Advocate for respondent no. 2.
-------------------------------------------------------------------------------------------------
                 CORAM :-         M. W. CHANDWANI, J.

                 DATED :-         26.08.2024

ORAL JUDGMENT :-

                                    3                      33-fa-479-21j.odt



            Heard.

2. The First Appeal is admitted. The parties are hereinafter

referred to as their position/nomenclature in the First Appeal.

3. By this appeal, the appellant assails the impugned award

dated 29.11.2017 passed by the Motor Accident Claims Tribunal,

Darwha in MACP No. 8/2011, thereby granting compensation of

Rs.8,20,000/- to respondent nos. 1 and 2 alongwith interest @ 8% per

annum from the date of judgment till realization of the amount, on

account of the death of son of respondent no. 1 - Shaikh Mohd. Aasim,

who died in a vehicular accident on 12.01.2011. The appellant-

Insurance Company is aggrieved by the impugned award only on the

ground that though, the Tribunal has held that there is a breach of

policy on the ground that driver of the offending vehicle was not

holding the requisite license for driving transport vehicle, whereas, he

was holding a driving license of Light Motor Vehicle (non-transport

category) but, the Tribunal directed the appellant to pay first and then

recover the same from the owner of the vehicle.

4. The law in this regard is no more res integra. The

Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran 4 33-fa-479-21j.odt

Singh1, Shamanna Vs. Divisional Manager, Oriental Insurance Co. Ltd. 2

and other catena of judgments has held that even in the cases where a

driver was not holding a valid license, the Insurer can be directed to

compensate the claimant and it may recover the same from the owner

of the vehicle. There is no substance in this ground of appeal,

therefore, no interference is required with the impugned award passed

by the Tribunal.

5. Before parting, it will be relevant to mention herein that in

this appeal, respondent no. 1 (original claimant no. 1) has filed a

Cross-Objection in the form of Cross-Appeal, whereby enhancement of

the compensation amount is claimed. It is a matter of record that by

order dated 24.01.2022, this Court allowed the respondent no. 1 to file

salary certificate on record and directed the Tribunal to record

evidence of the employer of the deceased and forward the same

alongwith documents to this Court. The Tribunal recorded the

evidence of the employer of the deceased, which has been forwarded

to this Court by the Tribunal. The evidence of Shri Kailashnath

Kamalkant Tripathi, who is serving with Acharya Vinoba Bhave Rural

Hospital, Sawani-Meghe, Wardha has deposed that the deceased was

working as Staff Nurse and filed salary certificate of the deceased for

the month of December-2010, which has been placed on record. 1 (2004) 3 SCC 297 2 (2018) 9 SCC 650 5 33-fa-479-21j.odt

6. Perusal of the salary certificate goes to show that the

deceased was getting a gross salary of Rs.7250/- per month, however,

he used to pay Rs.175/- towards professional tax, which if deducted,

the net salary of the deceased was Rs.7075/- per month. However, the

Tribunal has assessed the income of the deceased as only Rs.5000/-

per month. In wake of the additional evidence, it has been brought on

record that the deceased was earning Rs.7075/- per month. It is

common ground that the deceased was serving on adhoc basis.

Needless to mention that in wake of the decision of the Supreme Court

in the case of National Insurance Co. Ltd. Vs. Pranay Sethi 3, 40%

amount of income towards future prospects is required to be added.

Since, the deceased was a bachelor and respondent no. 1 (mother) and

respondent no. 2 (younger brother) were the only dependents, the

Tribunal was right in deducting 50% of assessed income towards

personal expenses.

7. Needless to mention that respondent no. 1 and 2 are

entitled to loss of filial consortium of Rs.40,000/- each, in wake of the

decision in the case of Magma General Insurance Co. Ltd. Vs. Nanu

Ram @ Chuhru Ram and others4 as well as Pranay Sethi (supra). Apart

from this, respondent no. 1 is entitled to Rs.15,000/- towards loss of

3 (2017) 16 SCC 680 4 (2018) 18 SCC 130 6 33-fa-479-21j.odt

estate and Rs.15,000/- towards funeral expenses. Accordingly,

respondent no. 1 and 2 are entitled to the following compensation:-

1. Monthly notional income of the deceased fixed Rs. 7075/-

2. Annual income of the deceased (Rs.7075/- x 12) Rs. 84,900/-

3. Add - 40% future prospects as per the judgment of (+) Rs. 33,960/- National Insurance Co. Ltd. vs. Pranay Sethi (2017) 16 SCC 680 Rs. 1,18,860/-

4. Less - ½th deduction as per the judgment of Sarla (-) Rs. 59,430/-

Verma vs. Delhi Transport Corporation [(2009) 6 SCC 121]

5. Salary for multiplier Rs. 59,430/-

6. Multiplier of 18 as per the judgment of Sarla Verma (x) Rs. 10,69,740/- vs. Delhi Transport Corporation [(2009) 6 SCC 121], applicable for the age group of 21 to 25 years (Rs. 62,967x 12)

7. Add : Loss of Consortium : (+) Rs. 80,000/- Rs.40,000/- for each claimant as per the judgment of Magma General Insurance Co. Ltd. vs. Nanu Ram [(2018) 18 SCC 130] followed in United India Insurance Co. Ltd. vs. Satinder Kaur - [AIR 2020 (SC) 3076] (10% increase as per Prayan Sethi's Judgment) (Rs.40,000/- x 2)

8. Add : Loss of Estate (+) Rs. 15,000/-

9. Add : Funeral Expenses (+) Rs. 15,000/-

10. Total compensation payable to the claimants Rs. 11,79,740/-

8. What remains to be addressed is the date from which the

interest is to be awarded. By the impunged award, interest @ 8% per

annum from the date of judgment till realisation of the compensation

amount is awarded holding that the claimants have not adduced 7 33-fa-479-21j.odt

evidence for a considerable time. In the judgment in the cases of

Rekha Dutta and others Vs. Ram Avatar Lohiya and another 5 and

Mohinder Kaur and others Vs. Hira Nand Sindhi (Ghoriwala) and

another6, it is held that the grant of interest is not a penal measure,

since, the Insurance Company retained the amount of compensation

and enjoyed the interest on the said amount, therefore, the claimant is

entitled for the interest. Therefore, I do find substance in the

argument of the learned counsel for respondent no. 1 that interest is to

be granted from the date of application and not from the date of

judgment. Therefore, the impunged award is also required to be

modified to that effect. Hence, the following order:-

i)               The First Appeal is dismissed.



ii)              The Cross-Objection is allowed.



iii)             The appellant and respondent nos. 3 and 4 are jointly and

severally liable to pay an amont of Rs.11,79,740/- towards

compensation to the claimants alongwith interest @ 8% per annum

from the date of the application till its realisation.

5 2009 ACJ 2679 6 2007 ACJ 2123 8 33-fa-479-21j.odt

iv) The appellant to first deposit the remaining amount of

award within four weeks from today. The appellant is entitled to

recover the said amount from respondent nos. 3 and 4 by initiating

seperate execution proceedings.

v) Upon deposit of the amount by the appellant, the

respondent nos. 1 and 2 shall be allowed to withdraw the said amount

alongwith accrued interest.

(M. W. CHANDWANI, J.)