Bombay High Court

M/S. Iffco-Tokio General Insurance Co. ... vs Suvarna Rajabhau Ghodke And Others on 1 October, 2024

2024:BHC-AUG:23391



                                                  1
                                                                         401.24FA

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                  FIRST APPEAL NO. 401 OF 2014

                     M/s. IFFCO-TOKIO General Insurance Co.Ltd.
                     Having its Corporate office at 4 & 5th Floor
                     IFFCO Tower, Plot No.3,
                     Sector 29 Gurgaon 122001 (Hry),
                     Mumbai Office at AFL House, 2nd Floor,
                     Lokbharti Complex, Marol Maroshi Road,
                     ANDHERI (E), Mumbai 400 059 and
                     Branch office A1 Building, 10,
                     Shahid Jeetsingh Marg, New Delhi-110 067
                     and Serving Divisional Office at Kalda Cornor,
                     Aurangabad 431005
                     Through it's Vice President (Legal) and
                     Constituted Attorney.                        .. APPELLANT

                                    VERSUS

                     1]    Smt. Suvarna w/o. Rajabhau Ghodke,
                           Age 30 years, Occ. Household,
                           R/o. Padsah, Tq. Uttar Solapur,
                           Dist. Solapur
                           Presently residing at Raghuchiwadi,
                           Tq. & Dist. Osmanabad.

                     2]    Kum. Sandhya Rajabhau Ghodke [Minor]
                           Age 9 years, Occ. Education,
                           R/o. As above.

                     3]    Prathamesh Rajabhau Ghodke,
                           Age 6 years, Occ. Education (Minor)
                           R/o. As above.

                     4]    Kum. Trupti Rajabhau Ghodke,
                           Age 5 years, Occ. Education (Minor),
                           R/o. As above.
                              2
                                                   401.24FA


5]   Rambhau Vithoba Ghodke,
     Age 60 years, Occ. Nil,
     R/o. Padsali, Tq. Uttar Solapur,
     Dist. Solapur.

6]   Sau. Kalawati Rambhau Ghodke,
     Age 55 years, Occ. Household,
     R/o. as above.

7]    Mr.Saurab Jeet Singh,
      Age Major, Occ. Business,
      R/o. BG 534, Sanjay Gandhi TPT Nagar,
      New Delhi 110 042.
      (Owner of Truck No.RJ14/GB6314)
                                        ..RESPONDENTS
                             ...
Mr.V.N.Upadhye, Advocate for the appellant.
Adv.P.D.Dadpe h/f. Adv.Sayali Tekale, Advocate for the
respondent nos.1 to 4 and 6.
                             ...
                       CORAM : ARUN R. PEDNEKER, J.

                       Reserved on : 06.09.2024
                       Pronounced on : 01.10.2024

JUDGMENT :

1] By the present appeal, the appellant - Insurance

Company challenges the judgment and order dated

11.12.2012 passed by the Motor Accident Claims Tribunal,

Osmanabad in MACP No.12 of 2009, granting claim to the

dependents of the deceased, who had met with an accident

with truck while driving an auto-rickshaw.

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Brief facts leading to the filing of the present Appeal are as under :

2] One Rajabhau @ Rajaram Rambhau Ghodke

was residnet of Padsali, Taluka Uttar Solapur, District

Solapur. He owned auto-rickshaw bearing MH-04/AR-7503.

On 23.07.2008 at 23.00 hours, he met a friend Bapu Baban

Thorat and both of them went to Thane for filling up gas in

the auto-rickshaw and the deceased was driving the auto-

rickshaw in moderate speed. Truck bearing No.RJ-14/GB-

6314 came from opposite side in high speed and dashed

Rambhasu Ghodke's rickshaw. In the accident, Rambhau

Ghodke died on the spot. A crime was registered against the

driver of the truck. The claimants [widow, two minor

daughters, one minor son and parents of the deceased, total

06] filed an application before the Motor Accident Claims

Tribunal, claiming compensation against the owner of the

truck and the Insurance Company of the truck. Before the

Tribunal, evidence was adduced by the claimants.

3] The claimant no.1, widow, deposed that the

deceased was driving his rickshaw on the left hand side of

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the road and friend of the deceased, namely, Bapu Thorat

was also driving his rickshaw behind him. The Truck

bearing No.RJ-14/GB-6314 came from opposite side and

dashed her husband's rickshaw. Thereafter, the truck driver

took the truck down the road, left the truck and ran away

from the spot. FIR was registered by Bhaurao Chandu

Dudhale, another rickshaw driver. After investigation, the

Police has filed charge sheet against the truck driver.

Considering the evidence on record, the Tribunal held that

the truck driver was negligent in driving. The Tribunal also

held that the deceased was earning Rs.300/- a day i.e.

Rs.9000/- per month. His age was 33 years and by the

judgment and order dated 11.12.2012, the Tribunal has

granted compensation of Rs.13,16,000/- to the claimants.

Against the said judgment and order, the present First

Appeal is filed by the Insurance Company.

4] The learned counsel for the appellant submits

that there was head on collusion between two vehicles and

as such the responsibility ought to have fixed on both

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vehicles. The learned counsel for the appellant has relied

upon the judgment in the case of Ranjana Prakash & Ors.

Vs. Divisional Manager & Anr. reported in [2011] 14 SCC

639 to contend that 30% income has to be deducted

towards income tax. However, the judgment is not

applicable to the instant case as the deceased is not in

income tax bracket. He has also relied upon the judgment in

the case of Kalpana Madhu Gavali and Ors. Vs. Maharashtra

State Road Transport Corporation reported in

MANU/MH/3837/2023 to contend that interest should not

be paid on the future prospects. He has also relied upon the

judgment in the case of National Insurance Co. Ltd. Vs.

Pranay Sethi reported in [2017] 16 SCC 680 to contend that

judicial discipline is required to be maintained and

consistent view be taken by the Court in granting

compensation. He has also relied upon the judgment in the

case of Sandhya Educational Society and another Vs. Union

of India and others reported in [2014] 7 SCC 701 to

contend that a coordinate Bench has to take consistent view

of this Court with earlier judgments.

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5] On perusal of the evidence of Bapu Baban

Thorat at Exh.46, so also, the spot panchanama at Exh.47, it

appears that the dead body of the deceased is away from

the centre of the road and is towards the left side. The auto

rickshaw was near the centre of the road and the time of

accident was 3.00 a.m. However, as per the evidence on

record, the truck driver came from the opposite side in a

high speed. The deceased was driving the auto rickshaw in

moderate speed. The dead body of the deceased appears

towards left side. The Police statement / FIR indicates that

the truck driver was driving at excessive speed. Thus, it is

difficult to conclude that the rickshaw driver was negligent

in driving. The finding of fact of the Tribunal is based on

police paper and in absence of evidence being led by the

truck owner, its difficult to interfere with the same. The

charge sheet is filed in the matter against the truck driver.

Therefore, I accept the findings rendered by the Tribunal

that it was the truck driver, who was responsible for the

accident.

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6] This Court in the case of Kalpana Madhu Gavali

and Ors. Vs. Maharashtra State Road Transport Corporation

reported in MANU/MH/3837/2023 has observed at para

no.19 as under :

19. Coming to the reliance placed by the learned Counsel for the Respondent Corporation on the decision of Jammu and Kashmir and Ladakh at Srinagar High Court in the case of National Insurance Company Limited vs. Mst. Aisha Bano and Ors.

(supra), which decision has placed reliance on a similar view taken by the Guwahati High Court in the cases of Khusboo Chirania Kanta Chirania @ Kanta Chirania vs. Kamal Kumar Sovasaria MANU/GH/1269/2018 : 2018 Supreme (Gau) 966 and Nasima Begum vs. Keramat Ali 2019 Supreme (Gau) 507, while submitting that, if this Court was inclined to consider future prospects, then in any event, compensation granted under the head of loss of future prospects should not be subjected to payment of any interest thereon, I am in agreement with the said submission. I am in agreement with the reasoning given In paragraph 12 of the said decision that future prospects are with regard to probable Income to be received in the future and as such, there is no requirement to compensate the claimant by way of future interest for the loss that is to occur in future as the future is yet to happen. The said paragraph 12 is usefully quoted as under:

"12. The third and last contention raised by the learned Counsel for the Appellant is that the portion of compensation granted under the head of loss of future prospects should not have been subjected to payment of any interest thereon. This argument of the learned Counsel carries force due to

401.24FA

the fact that the future prospects are relatable to an income to be received in the future and, as such, there could not be any loss to the claimants for the payment of future prospects at the time the deceased met with the accident. The reason for awarding interest on the compensation amount, minus the future prospects, is due to the fact that, though the loss of dependency starts from the date of accident, the compensation amount is computed on the date of the award of the Tribunal, interest is awarded to compensate the loss of money value on account of lapse of time, such as the time taken for the legal proceedings and for the denial of right to utilize the money when due. However, future prospects are with regard to probable income to be received in the future and, as such, there is no requirement to compensate the claimant by way of future interest for the loss that is to occur in the future, as the future is yet to happen. Further, future prospects are given for the entire future and, as such, the claimant is getting compensation in a lumpsum under the future prospects prior to the occurrence of future event(s). Thus, with regard to future prospects, this Court is of the view that there cannot be any interest on future prospects as the same relates to an income to be given in the future. The same view has been taken by the Gauhati High Court in cases reported as 'MANU/GH/1269/2018 :

2018 Supreme (Gau) 966'; and '2019 Supreme (Gau) 507', therefore, the contention of the learned Counsel for the Appellant is accepted that the component of compensation under the head of loss of future prospects is not to be subjected to interest."

401.24FA

7] On the submission that interest cannot be

granted on future prospect reference can be made to the

judgment of the Hon'ble Supreme Court in the case of

Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias

Chuhru Ram & Ors in Civil appeal No.9581 of 2018 [arising

out of SLP [Civil] No.3192 of 2018], decided on 18 th

September, 2018, the Hon'ble Court has granted

compensation as under :

Head                                           Compensation awarded

     i.   Income                        Rs.6000/-

  ii.     Future prospects              Rs.2,400/- (i.e. 40% of the income)

 iii. Deduction towards                 Rs.2800/-[ i.e. 1/3rd of

          Personal expenditure :        (Rs.6000/- + Rs.2,400/-)

 iv.      Total income                  Rs.5600/- [i.e. 2/3rd of
                                        Rs.6000/- + Rs.2,400/-]



 vi.      Loss of future income         Rs.12,09,600/- [Rs.5600/- x 12 x 18]

vii. Loss of love and affection : Rs.1,00,000/- (Rs.50,000/- each)

viii. Funeral expenses : Rs.15000/-

 ix.      Loss of estate :              Rs.15,000/-

  x.      Loss of Filial                Rs.80,000/- (Rs.40,000/- payable to
          Consortium :                  each of Respondent Nos. 1 and 2)

          Total            CompensationRs.14,25,600 alongwith Interest @
          awarded :                    12% p.a. from the date of filing of the
                                       Claim petition till payment.

                                                       401.24FA



8]           The above computation of compensation in

Magma General Insurance Co. Ltd. [supra] is quoted to

indicate that the interest is granted from the date of filing of

the claim petition even on future prospect. As such, the

argument of the appellant that the interest should not be

granted on future prospect is not acceptable in view of the

judgment of the Hon'ble Supreme Court.

9] In the case of Jitendra Khimshankar Trivedi &

Ors. Vs. Kasam Daud Kumbhar & Ors in Civil Appeal

No.1415 of 2015 [arising out of SLP (Civil) No.4969/2014),

decided on 3rd February, 2015, the Hon'ble Supreme Court

has granted interest on the enhanced amount [which

includes future prospect and consortium] from the date of

filing of the claim petition.

10] The Hon'ble Supreme Court in the cases of

Sandhya Educational Society [supra], Magma General

Insurance Co. Ltd. [supra], S. Vasanthi and another Vs.

Adhiparasakthi Engineering College and another reported in

401.24FA

[2022] 15 SCC 316, Mohd. Sabeer @ Shabir Hussain Vs.

Regional Manager, U.P. State Road Transport Corporation in

Civil Appeal Nos.9070-9071 of 2022 [arising out of Special

Leave Petition (Civil) Nos.481-482 of 2019], decided on 9 th

December, 2022, and also in the case of R. Valli & Ors. Vs.

Tamil Nadu State Transport Corporation Ltd. In Civil Appeal

No.1269 of 2022 [airsing out of SLP [Civil] No.20913 of

2018], decided on 10th February, 2022, the Hon'ble

Supreme Court has granted interest on future prospects.

11] This Court has held in the case of Kalpana

Madhu Gavali [supra] that interest on future prospects

should not be paid. However, I have not applied the said

judgment for the following reasons :

i] The Hon'ble Supreme Court in the various

judgments, noted in para no.10 above, has granted interest

on the future prospects and the same is not granted in

exercise of powers under Article 142 of the Constitution of

India.

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ii] The entire compensation is computed based on

loss of future income which includes future prospect.

iii] The compensation becomes payable from the

date of filing of the claim petition and the interest is

awarded by the tribunal from the date of filing of claim

petition. The claim petition may be adjudicated within one

year or may take 20 years up till the appellate stage. But,

the amount becomes payable from the date of filing of the

claim petition, as such, the interest is granted from the date

of claim petition till it's realization.

12] The Hon'ble Supreme Court has consistently

granted interest on future prospect from the date of filing of

the claim petition. As such, the argument of the Insurance

Company on that interest should not be granted on future

prospect is rejected.

13] There is one more aspect on which I may agree

with the counsel for the appellant that the amount of

deduction ought to have allowed towards maintenance of

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the vehicle. The evidence of the claimants is that the

deceased was earning Rs.300/- per day i.e. Rs.9000/- per

month, which is not improbable. However, it is not noted

whether the income is after deduction of maintenance of

Auto. As such, Rs.1000/- per month would be deduction

towards maintenance of the rickshaw. On such deduction

being made, I would consider the income of the deceased of

Rs.8000/- per month and compensation is worked out as

under :

                     Head                  Compensation awarded
  I.    Income                      Rs.8000/-

  II.   Future prospects            Rs.3200/- (i.e. 40% of the income)

 III. Deduction towards             Rs.2240/-[ i.e. 1/5th of

        Personal expenditure :      Rs.8000 + Rs.3200 = Rs.11,200/-
                                    Rs.11,200 - Rs.2240 = Rs.8960/-

 IV.    Total income                Rs.8960/-



 VI. Loss of future income          Rs.16,12,800/- [Rs.8960 x 12 x 15]

 VII. Loss of consortium            Rs.2,40,000/-

[Rs.40,000 each x 6 = Rs.2,40,000/-]

VIII. Funeral expenses : Rs.15000/-

 IX. Loss of estate :               Rs.15,000/-

        Total          Compensation Rs.18,82,800/- alongwith interest @
        awarded :                  7.5% p.a. from the date of filing of the
                                   claim petition till payment.

                                                    401.24FA

14]        The Hon'ble Supreme Court in the case Jitendra

[supra] has observed at para no.13 as under :

13. ... The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa vs. Gurudayal Singh & Ors, Oriental Insurance Company Ltd. vs. Mohd. Nasir & Anr., and Ningamma & Anr. vs. United India Insurance Company Ltd. As against the award passed by the tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/tribunals to award just and reasonable compensation, it is appropriate to increase the compensation.

15] Considering the judgments of the Hon'ble

Supreme Court in case of Jitendra [supra], this Court is

bound to grant just compensation and can enhance the

compensation even in absence of counter-claim / appeal by

the claimant.

16] The Insurance Company to deposit the

enhanced compensation before the Motor Accident Claims

Tribunal, Osmanabad within eight [08] weeks from the date

of this judgment. Any amount deposited by the Insurance

Company in this Court be transmitted to the Motor Accident

Claims Tribunal Osmanabad. The amount deposited to be

disbursed to the claimants by the Motor Accident Claims