Bombay High Court
Pramilabai Uttarwar vs Shantabai Shankar Khedkar & 2 Ors on 13 June, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 FA511.08, 512.08, 513.08(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 513/2008 with FIRST APPEAL NO.511/2008 with
FIRST APPEAL NO.512/2008
............
FIRST APPEAL NO. 513 OF 2008
Smt Pramilabai Uttarwar,
Aged about 65 years,
Occupation-Business,
R/o Gondpipri, Tah. Gondpipri,
District-Chandrapur.
....... APPELLANT
...V E R S U S...
1] Shantabai Shankar Khedkar,
Aged about 20 years,
Occupation-Not known.
2] Dharmabai Shankar Khedekar,
Age about 06 months,
through guardian adlitum,
Smt Shantabai r/o Virli, Post-Sandgaon,
Tah. Kothura, District-Adilabad, (Andhra Pradesh)
3] Divisional Manager,
New India Assurance Vima Company
Maryadit, Kasturba Road, Chandrapur.
...... RESPONDENTS
FIRST APPEAL NO.511/2008
Smt Pramilabai Uttarwar,
Aged about 65 years,
Occupation-Business,
R/o Gondpipri, Tah. Gondpipri,
District-Chandrapur.
..... APPELLANT
...V E R S U S...
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2 FA511.08, 512.08, 513.08(J)
1] Raoji Karu Chaudhary,
Age about 45 years,
Occupation-Labour, R/o Chak Nandgaon,
PO Kala, Tah. Gondpipri, District Chandrapur.
2] Maroti Srihari Sonuwanshi,
Age about 25 years, Occupation-Driver,
R/o Kanhalgaon Dharan,
PO Kothari, Tah. Gondpipri,
District -Chandrapur.
3] Divisional Manager,
New India Assurance Vima Company
Maryadit, Kasturba Road, Chandrapur.
...... RESPONDENTS
FIRST APPEAL NO.512 OF 2008
Smt Pramilabai Uttarwar,
Aged about 65 years,
Occupation-Business,
R/o Gondpipri, Tah. Gondpipri,
District-Chandrapur.
....... APPELLANT
...V E R S U S...
1] Sunil Bhaurao Yelmule,
Aged about 18 years,
Occupation-Education,
R/o Chak Nandgaon, P.O. Dhaka,
Tah. Gondpipri, District-Chandrapur.
2] Maroti Srihari Sonuwanshi,
Age about 25 years, Occupation-Driver,
R/o Kanhalgaon Dharan,
PO Kothari, Tah. Gondpipri,
District-Chandrapur.
3] Divisional Manager,
New India Assurance Vima Company
Maryadit, Kasturba Road, Chandrapur.
...... RESPONDENTS
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3 FA511.08, 512.08, 513.08(J)
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Shri A.De, Advocate, for appellants in all these appeals.
Mrs. Anita Mategaonkar, Advocate for respondent-Insurance Company in all
these appeals.
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CORAM : A.S.CHANDURKAR,J.
DATED : 13.06.2019
ORAL JUDGMENT
1. All these appeals filed under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the said Act') can be decided together as the claims arise out of the same accident.
2. According to the claimants, a Matador bearing no. MH-34/A-6431 was owned by the appellant herein. One Shankar Narayan Khedekar was travelling in the said Matador on 01.05.2001 as a passenger. On account of rash and negligent driving of the said Matador, the same turned turtle resulting in various injuries to Shankar Khedekar. He succumbed to his injuries. His legal heirs filed Claim Petition No. 13/2001. The Claims Tribunal recorded a finding that the said vehicle was being driven rashly and negligently by its driver. Similarly about 12 passengers were being carried without there being any permit in that regard. The Claims Tribunal awarded compensation of Rs.1,50,000/- and while exonerating the Insurance Company on account of breach of policy, saddled liability on the owner of the vehicle only. First Appeal No. 513/2008 arises from Claim Petition No. 13/2001.
In the same accident, one Raoji Karu Chaudhary sustained injuries ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/06/2019 23:00:56 ::: 4 FA511.08, 512.08, 513.08(J) and he filed Claim Petition No.10/2002. The Claims Tribunal awarded compensation at Rs.50,000/- after exonerating the Insurance Company. The owner of the vehicle has filed First Appeal No.511/2008 challenging that judgment.
One Sunil Yelmule was also injured in that accident and he filed Claim Petition No. 9/2002. The Claims Tribunal awarded a sum of Rs.30,000/- and exonerated the Insurance Company. The owner of the vehicle has filed First Appeal No.512/2008.
3. It is submitted by learned counsel for the appellants that the Claims Tribunal erred in exonerating the Insurance Company especially when the accident occurred as one of the tyres of the Matador had burst. The vehicle in question was insured and there was no reason to exonerate the Insurance Company. It was further submitted that compensation of Rs.1,50,000/- in Claim Petition No.13/2001 had been awarded without there being any evidence as to the income of the deceased. Reference was made to the evidence on record to indicate that aspect. It was thus submitted that the compensation as awarded deserves to be reduced and the Insurance Company ought to be held liable to satisfy the claims.
4. Learned counsel for the Insurance Company referred to the policy of insurance to indicate that the vehicle was a goods carrying vehicle and besides the driver, there was a permit for carrying one cleaner. Passengers ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/06/2019 23:00:56 ::: 5 FA511.08, 512.08, 513.08(J) were not permitted to be carried and therefore the breach of the policy was obvious. A reference was made to the First Information Report (FIR) indicating the fact that 12 passengers were being carried. It was further submitted that despite instructions given by the owner, the driver had breached the same and had carried the claimants therein. It was thus submitted that there was no reason to interfere with the adjudication made by the Claims Tribunal.
The claimants have been duly served, but there is no appearance on their behalf.
5. The following points arise for determination :
(1) Whether the Insurance Company has been rightly exonerated by the Claims Tribunal ?
(2) Whether the amount of compensation deserves to be reduced ?
6. Heard learned counsel for the parties and perused the records of the case. The occurrence of the accident is brought on record by virtue of the First Information Report at Exhibit 31 in M.A.C.P.No.13/2001. The same indicates 12 passengers being carried in the said vehicle. It is not in dispute that the vehicle was owned by the appellant. The insurance policy is at Exhibit 37 and it indicates the fact that Matador was a goods carrying vehicle with sitting capacity of one besides the driver. From the aforesaid, it is clear that 12 passengers were being carried in the said Matador in breach of the ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/06/2019 23:00:56 ::: 6 FA511.08, 512.08, 513.08(J) insurance policy.
7. For proving the income of the deceased his widow was examined and she deposed that her husband was earning Rs.3,000/- per month. In the cross examination, it is stated that he was engaged for about 10-12 days in a month and was receiving Rs.35/- per day. It is on this basis, it is urged that the income of the deceased has been taken on higher side. The Claims Tribunal has determined the compensation by calculating the monthly income at Rs.1050/-. Besides this amount, Rs.5,000/- has been granted for mental agony and Rs. 2,000/- awarded for funeral expenses. In the light of the law laid down in National Insurance .Vs. Pranay Sethi, 2018(3) Mh.L.J.70, the manner in which compensation is to be calculated has been laid down therein. It is seen that in the impugned judgment no amount has been awarded towards future prospects or on the conventional heads. When those aspects are taken into consideration, it is seen that there is no reason to reduce the amount of compensation as granted at Rs.1,50,000/-.
8. As regards breach of the insurance policy, the said aspect is clear from the terms of the policy at Exhibit 37. The fact that passengers were being carried in the said Matador is proved from the copy of the First Information Report at Exhibit 35. On that count, the Claims Tribunal has rightly exonerated the Insurance Company. The points as framed are ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/06/2019 23:00:56 ::: 7 FA511.08, 512.08, 513.08(J) answered accordingly.
9. Insofar as amounts granted in the injury cases are concerned, the same are on lower side not requiring any further reduction. There are no cross objections seeking further enhancement.
10. In the light of aforesaid discussion, the judgment of the Claims Tribunal in each appeal stands confirmed. The first appeals are dismissed with no orders as to costs. The claimants are at liberty to withdraw the amount of compensation as deposited with accrued interest.
JUDGE Andurkar..
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