Bombay High Court
The New India Assurance Company Ltd vs Archana Rajendra @ Dagadu Gawade And ... on 6 May, 2024
2024:BHC-AUG:9641
1 FA 3229.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3229 OF 2015
The New India Assurance Company,
Ltd., Through it's Authorized Official
and Divisional Manager, Legal Hub,
Adalat Road, Aurangabad. Appellant.
(orig resp No.2.)
Versus
1. Archana Rajendra @ Dagadu Gawade,
age 25 yrs, Occ Household,
2. Viresh Rajendra @ Dagadu Gawade
age 7 yrs, Occ. Education.
3. Sakshi Rajendra @ Dagadu Gawade
age 5 yrs, Occ. Education.
4. Sarthak Rajendra @ Dagadu Gawade
age 1 year, Occ. Nil.
(Resp Nos.2 to 4 u/g of their mother
Resp No.1.)
5. Vishwanath Murlidhar Gawade,
age 55 yrs, Occ. Nil.
6. Muktabai Vishvanath Gawade,
age 50 yrs, Occ. Nil.
Resp No. 1 to 6 r/o Kolhar Budruk,
Tq. Rahata, Dist. Ahmednagar.
7. Dattatraya s/o Jagannath Raut,
age-major, Occ. Business,
R/o Shani Shinganapur, Tq. Newasa,
Dist. Ahmednagar. Respondents.
(Resp 1-6 orig claimants
& Resp No.7 orig resp 1)
2 FA 3229.15.odt
...
Mr.A.S. Usmanpurkar, advocate for appellant.
Mr.Shaikh Mazhar A. Jahagirdar advocate for
Respondent Nos. 1 to 6.
Respondent No.7 - served.
...
CORAM : S. G. CHAPALGAONKAR, J.
...
Reserved on : 18.04.2024
Pronounced on : 06.05.2024
...
JUDGMENT :
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1. The appellant/original respondent no.2-insurer
approached this Court under section 173 of the Motor Vehicles
Act impugning the judgment and award dated 21.4.2015
passed by the Motor Accident Claims Tribunal, Ahmednagar in
MACP no.575 of 2011.
2. Mr. A.S. Usmanpurkar, learned advocate appearing
for the appellant submits that the present appeal is filed only
on the ground of negligence. The accident in question took
place on 4.7.2011 while late Rajendra Gawade was riding on
his motorcycle and collided against the insured Jeep bearing
registration No.MH-17/AE-1705. He submit that the accident
took place in the center of the square due to head on collusion
of the jeep and motorcycle, which clearly suggest contributory
negligence on the part of the deceased. He would further
submit that the spot panchnama at exhibit 24 is admitted in
evidence. The Tribunal ignored contents of the panchnama
while adjudicating the issue of negligence. He would further
submit that Tribunal has erroneously added 50% amount
towards future prospects. Multiplier is wrongly applied, since
age of the deceased was more than 31 years as per the
3 FA 3229.15.odt
contends of the panchnama. He urges that award passed by
the Tribunal be appropriately corrected.
3. Mr. Shaikh Mazhar Jahagirdar, learned advocate
appearing for respondent nos. 1 to 6-claimants supports the
award. He submits that age of the deceased was 28 years at
the time of death which could be ascertained on the basis of
school leaving certificate depicting date of birth as 19.2.1983.
As such, on the date of the accident, age of the deceased was
28 years and 4 months. He would further submit that
deceased died leaving behind six dependents. Each of
dependent was entitle for loss of consortium to the extent of
40,000/-. The Tribunal, awarded compensation of Rs.1.00
Lakh towards loss of consortium and loss of love and affection
only for widow. If the Award is corrected in tune with the law
laid down by the Supreme Court of India in case of National
Insurance Company Limited Versus Pranay Sethi & Ors.
Reported in (2017)16 SCC 680, impugned award can be
justified no modification is required.
4. Having considered the submissions advanced and
after going through the record of the case, it is apparent that
there is no dispute as regards to accidental death of the
deceased arising out of use of the insured vehicle. The
claimants have raised claim against owner and insurer of the
jeep bearing registration No.MH-17/AE-1705 with specific
allegation of rash and negligent driving on the part of the jeep
driver. The claimants have relied upon the contents of police
papers in support of their contentions. It is not disputed that
jeep driver was prosecuted for rash and negligent driving. The
4 FA 3229.15.odt
respondents have not brought on record oral or documentary
evidence in support of their defence on the point of negligence.
The jeep driver failed to step into witness box. Even, Insurance
company made no attempt to bring him before the Court.
Therefore, merely on the basis of contents of the spot
panchnama, it would be difficult to draw any inference of
contributory negligence. It is trite that contents of the
panchnama depicts position of vehicle after the accident. It is
only driver of the vehicle or eye witness can throw light on
manner of accident and position of the vehicles at the relevant
time. When, respondent/Insurer has failed to bring on record
best possible evidence of the jeep driver, submissions advanced
on behalf of the insurer to draw inference of contributory
negligence only on the basis of position of vehicles depicted in
the panchnama cannot be accepted. Hence, there is no reason
to disturb the finding recorded by the Tribunal on the issue of
negligence.
5. So far as the quantum of compensation is
concerned, Mr. Usmanpurkar is right in contending that the
Tribunal has erroneously added 50% amount towards future
prospects. It is trite that, in case of non-salaried victim,
addition of 40% of income can be made by way of future
prospects. In the present case, deceased was agriculturist. His
notional income is fixed @ Rs.5,000/- p.m. Therefore,
addition of 50% towards future prospectus appears to be
erroneous. Furthermore, Tribunal awarded compensation of
Rs.50,000/- towards loss of consortium to wife and
Rs.50,000/- towards loss of love and affection . It is trite that
5 FA 3229.15.odt
loss of consortium is available to wife, minor children so also
parents. However, separate compensation for loss of love and
affectin is disapproved once loss of consortium is awarded. If
this Court considers Rs.40,000/- towards loss of consortium to
each of six claimants in light of the dictum in case of Magma
General Insurance Company Limited Versus Nanu Ram Alias
Chuhru Ram & Ors. reported in (2008)18 SCC 130 that
amount comes to Rs.2,40,000/-. Therefore, even after
deducting the amount of Rs.50,000/- granted towards loss of
love and affection and adding loss of consortium correctly to
the widow and other dependents; assessment of compensation
is not likely to be reduced. Application of the multiplier
appears to be correct considering age of the deceased as per
school record.
6. Resultantly, there is no merit in the appeal hence
dismissed with costs.
7. The compensation amount deposited by the
insurance company be released to the claimants.
( S. G. CHAPALGAONKAR )
JUDGE
...
aaa/- (f)
