Bombay High Court
New India Insurance Co. Ltd. vs Minakshee Gokuldas Gosavi And Others on 7 August, 2025
2025:BHC-AUG:20990
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1271 OF 2019
WITH
CA/7555/2025 IN FA/1271/2019
The New India Insurance Co. Ltd.,
Branch Manager,
Abbott Buildding, Ist Floor, Near Ashoka Hotel,
Kings Road, Ahmednagar - 414001
Through its Divisional Manager/
Authorized Signatory,
Mahesh Auto Compound, Adalat Raod,
Aurangabad. ... APPELLANT
(Orig. Respondent No.2)
Versus
1. Minakshee Gokulkdas Gosavi,
Age: 51 years, Occu.: Nil.
2. Poonam Gokuldas Gosavi,
Age: 29 years, Occu.: Education,
3. Pooja Gokuldas Gosavi
Age: 27 years, Occu.: Education,
4. Prasad Gokuldas Gosavi,
Age: 25 years, Occu.: Education
All R/o. Sangamner, Tqluka Sangamner,
District Ahmednagar.
5. Arjun Shivshankar Rawni,
Age: Major, Occu. Business,
R/o. H.No. 16 at Baghodi,
Post Saria Cirdih, District Girdih,
Jharkhand - 815 301 ... RESPONDENTS
(R-1to 4 Orig. Claimants)
( R-5 Orig. R-1)
......
Mr. S.R. Bodade, Advocate for Appellant
Mr. R.B. Dhakane, Advocate for Respondents No.1 a to 4
......
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CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 24 JULY 2025
PRONOUNCED ON : 07 AUGUST 2025
JUDGMENT:
-
1. This is an appeal filed by the Insurance Company taking
exception to the judgment and award dated 17.07.2015 passed
by the learned M.A.C.T, Sangamner in M.A.C.T. No.96 of 2011.
BRIEF FACTS GIVING RISE TO THE APPEAL ARE AS UNDER:
2. The present respondents No.1 to 4 set up the above
claim against the owner of the truck and its insurer on the
premise that, on 18.12.2010, deceased Gokuldas, who was in
the employment of Public Works Department, Sub-Division,
Sangamner, was behind the wheels of Government Jeep bearing
No. MH-04-Y-175. When the said vehicle reached the vicinity of
village Naigaon, a truck bearing No. HR-38-K-2361, coming
from the Malkapur side at an excessively high speed and on the
wrong side of the road, and gave a dash to the jeep, causing
grievous injuries to the deceased Gokuldas. He succumbed on
the spot. Crime was registered against truck driver, as accident
has occurred due to his entire negligence. The wife, daughters,
and son of the deceased Gokuldas filed Accident Claim Petition
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No. 96 of 2011, seeking compensation to the tune of Rs.
19,00,000/- on the ground that they were his dependents and
had lost their source of income due to his death. The deceased
Gokuldas was the sole bread earner of the family; therefore, the
claimants sought compensation under various heads from the
owner of the vehicle as well as the insurer.
3. In response to the notices issued by the Tribunal,
respondent No.1 filed written statement at Exhibit-14 denying
negligence and rather set up the case of negligence of deceased
Gokuldas (jeep driver). Respondent No. 2, the insurance
company, also filed a written statement at Exhibit-25, taking the
stand that the deceased himself was rash and negligent. The
second ground raised for objection was that the driver of the
offending truck was not holding a valid driving licence, which
amounted to a breach of the insurance policy; therefore, the
insurance company sought dismissal of the claim petition
against it.
4. The necessary issues were framed by the Tribunal, and
by judgment and award dated 17.07.2015, the claim petition
was partly allowed, directing respondents No. 1 and 2 to pay
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compensation jointly and severally to the tune of ₹14,11,404/-,
along with interest at the rate of 8% per annum.
Feeling aggrieved by the award dated 17.07.2015, the
insurance company has taken exception to the above award by
filing the instant appeal on various grounds spelt out in the
appeal memo.
5. The thrust of the learned counsel for the insurance
company is that, firstly, the sole negligence of the truck driver is
not established. Secondly, the truck driver, i.e., the driver of the
offending vehicle, was not holding a valid licence on the date of
the accident; therefore, there was a breach of the policy
condition, and the insurance company is not liable to pay
compensation.
6. Learned counsel for the insurance company has taken a
specific plea, with contentions raised in the written statement
filed by the company, stating that the insurance company
engaged a private investigator who conducted a thorough
investigation at the R.T.O. office in Kolkata, which has
jurisdiction to issue the licence to the offending truck. The
insurance company is in receipt of communication dated
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29.08.2013 from R.T.O. office conveying that photocopy of the
driving licence is fake. Learned counsel submitted that,
unfortunately, due to a communication gap, the investigator's
report could not be placed on record before the Tribunal; hence,
a civil application for additional documents has been filed. For
all the above reasons, the liability of the insurance company as
fixed by the Tribunal has been questioned in this appeal.
7. Per contra, learned counsel for the
respondents/claimants supported the impugned judgment and
award passed by the Tribunal, contending that every aspect put
forth before the Tribunal has been correctly appreciated, and
therefore, the impugned judgment and award, being legally
justified, should not be interfered with. On the contrary, he
sought enhanced compensation, as according to him, insufficient
compensation has been awarded by the Tribunal.
8. Heard learned counsel for appellant/insurance company
and learned counsel for respondents No.1 to 4/original
claimants. Perused the impugned judgment and award.
9. On re-appreciation of the entire evidence, it emerges that
on behalf of the original claimants, the widow of the deceased
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Gokuldas has adduced her evidence at Exhibit-26. Apart from
her testimony, she has also placed on record the FIR (Exhibit-31)
and the spot panchanama (Exhibit-32). On studying these
documents, particularly the spot panchanama, this Court is
convinced that the truck had left its correct side of the road,
gone onto the wrong side, and given a dash to the jeep.
Therefore, with such quality of evidence on record, no fault can
be found with the Tribunal's finding that the truck driver was
solely responsible for the accident. Even in appeal, the insurance
company has not seriously questioned such findings of
negligence recorded by the Tribunal.
10. The only issue hotly contested by the insurance company
is that, the driver of the offending truck was not holding a valid
licence, and since it amounts to breach of the policy conditions,
the insurance company seeks to be absolved of liability.
11. Admittedly, except for taking such a plea, the insurance
company has neither taken effective steps nor examined the
R.T.O. authority or the investigator whom it claims to have
engaged. Now, civil application has been filed seeking
permission to produce additional evidence on record, i.e. the
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communication dated 29.08.2013. However, the very
investigator on whose report the said communication is relied
upon has not been examined.
12. It is well settled that when a specific defence is taken by
the insurance company to avoid liability on the ground of breach
of policy conditions, the fundamental burden lies on the
insurance company to establish the same. Apart from placing
reliance on the said communication allegedly received from the
R.T.O. authority at Kolkata, there is no other material on record
so as to accept the case of the insurance company regarding the
breach of policy condition.
13. Admittedly, the claimants have placed on record a
photocopy of the driving licence of respondent No. 1 at Exhibit-
37. Before the Tribunal, no evidence was brought on record by
the insurance company to demonstrate that the said licence was
not genuine, which is precisely the stand taken in the first
appeal. Consequently, the sole ground of breach of policy
condition raised on appeal has no substance. This Court finds no
reason to interfere with the findings and conclusions reached by
the Tribunal.
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14. Learned counsel for respondents No. 1 to 4, the original
claimants, has sought just compensation, i.e. rather enhanced
compensation. It is contended that such enhancement can be
claimed without filing an appeal.
15. In view of the ratio laid down in Nagappa Gurudayal
Singh and Others, (2003) 2 SCC 274 and Khimshankar Trivedi
and Others Vs. Kasam Daud Kumbhar and others, (2015) 4 SCC
137, it is settled position that, claimants need not file distinct
appeal or cross appeal seeking enhancement.
16. In the present case, a perusal of the impugned judgment
and award reveals that the computations and calculations made
by the learned Tribunal are set out in paragraphs 21 and 22 of
the impugned judgment. This Court finds no fault in considering
the monthly salary as Rs. 13,499, deducting one-fourth of the
amount towards personal and living expenses, and applying a
multiplier of 11. At the time of the accident, the deceased was
51 years of age; therefore, there is no question of adding future
prospects in view of the ratio laid down in Sarla Verma and
Others vs. Delhi Transport Corporation and Another , AIR 2009
SC 3104.
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17. However, it is noticed that, the Tribunal has awarded
Rs.25,000/- towards loss of consortium only to claimant No.1
(present Respondent No.1) and Rs.10,000/- each to claimants
No.2 to 4 (Present respondents No.2 to 4). All the claimants are
equally entitled to loss of consortium in their individual
capacities as the wife, daughters, and son of the deceased. So
also, the Tribunal has awarded Rs.10,000/- towards funeral
expenses. Similarly, the Tribunal seems to have forgotten to
award distinct compensation under the head of 'loss of estate'.
Therefore, modification in the award to that extent is also
required to be made.
18. In view of the ratio laid down in National Insurance
Company Limited v. Pranay Sethi and Others, 2017 (16) SCC
680, claimants are entitled for Rs. 40,000/- each, i.e. 1,60,000/-
plus 30% (Rs.48,000/-) which comes to Rs.2.08,000/- towards
loss of consortium. Rs. 15,000/- plus 30% (Rs.4,500/-), which
comes to Rs.19,500/- towards loss of estate and Rs.15,000/-
plus 30% (Rs.4,500/-), which comes to Rs.19,500/- towards
funeral expenses.
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19. Having regard to the above reasons and discussion, the
award of the Tribunal is reassessed as under:
Head Amount (Rs.)
1 Annual Income Rs.1,61,988/-
(Rs.13,499 x 12)
As calculated by the Tribunal
2. (-) 1/4 deduction towards Rs.1,21,491/-
personal and living expenses
(1,61,988 - 40,497)
As deducted by the Tribunal
4. Multiplier 11 Rs.13,36,401/-
(1,21,491 x 11 )
As applied by the Tribunal
5. Non-pecuniary Losses:- Rs. 2,57,000/-
Loss Consortium = Rs.2,08,000
Loss of Estate = Rs.19,500/-
Funeral Expenses = Rs.19,500/-
Transportation
Charges = Rs.10,000
6. Total compensation awarded Rs. 15,93,401/-
7. Compensation awarded by the Rs. 14,11,401/-
Tribunal
8. Enhanced Compensation Rs. 1,82,000/-
(15,93,401 - 14,11,401)
20. In the result, the following order:
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ORDER
(i) Appeal filed by the Insurance Company is dismissed
with no order as to costs
(ii) Impugned judgment and award dated 17.07.2015,
passed by the Member of M.A.C.T., Sangamner in
M.A.C.P. No.96 of 2011 is modified.
(iii) Appellant-insurance company to pay enhanced
compensation of Rs.1,82,000/- to claimants within 12
weeks from today along with interest @ 8% per
annum from the date of registration of claim petition
till its realization.
(iv) Modified award be prepared accordingly.
(v) Respondents No.1 to 4/original claimants to pay court
fees on enhanced compensation as per rules.
(vi) On deposit of the amount by Insurance Company,
respondents No.1 to 4/original claimants are
permitted to withdraw the same.
(vii) Civil Application No.7555 of 2025 also stands
disposed of.
ABHAY S. WAGHWASE,
JUDGE
S P Rane
