Bombay High Court
Daji Dhondu Meshram And 5 Ors vs Dineshkumar Nabilal Thakre And Anor on 4 February, 2019
217fa485.08.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 485 OF 2008
1] Daji s/o Dhondu Meshram, Deleted as per Court's order
Aged about 70 years, Occu: Nil. dt. 17.9.2018
2] Girjabai w/o Daji Meshram,
Aged 65 years, Occu: Household.
Both R/o Wasala, Tah. Armori,
Dist. Gadchiroli.
3] Gaura wd/o Liladhar Meshram,
Aged about 45 years, Occu: Household.
4] Takaram s/o Liladhar Meshram,
Aged about 19 Years, Occu: Education.
5] Amol s/o Liladhar Meshram,
Aged about 17 years, Occu: Education.
6] Rahul s/o Liladhar Meshram
Aged about 15 years, Occu: Education.
Applicant Nos.5 and 6 are minors
through their natural guardian mother
i.e. applicant No.3. Applicant Nos.4 to 6
are R/o Panchgaon (Rui) Post. Nilaj,
Tah. Brahmapuri, Dist. Chandrapur.
.....APPELLANTS
...V E R S U S...
1] Dineshkumar s/o Nabilal Thakre,
Aged Not known, Occu: Matador owner,
R/o Shiwani, Post-Shiwni,
Tah. Gondiya, Dist. Bhandara.
2] Branch Manager,
New India Assurance Company Ltd.,
Motwani Chamber, Bhandara,
Tah. and District - Bhandara.
.....RESPONDENTS
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Shri P.P. Pendke, counsel with Ms Priti Badwaik (Pedke) for the
Appellant Nos. 2 to 6.
Shri D.S. Dharaskar, counsel for the Respondent No. 2.
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CORAM: ARUN D. UPADHYE, J
DATE: 04-02-2019.
ORAL JUDGMENT
1. The appellants/original claimants have filed this First Appeal under Section 173 of the Motor Vehicles Act, challenging the judgment and award dated 13.02.2007 passed by the Member, Motor Accident Claims Tribunal, Gadchiroli in M.A.C.P. No.24/2009.
2. By the impugned judgment and award, the learned Tribunal has granted compensation of Rs.93,600/- with interest @ Rs 7.5 % per annum from the date of application i.e. from 21.6.2001 till its realization against the respondent No.1-owner of the vehicle. However, the claim against the respondent No.2 against the Insurance company was disallowed/rejected.
3. The appeal was admitted on 06.05.2008 and awaiting for its turn for final hearing. Today, the matter came up for final hearing.
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4. None for the respondent No.1 owner of the vehicle. I have heard Shri P.P. Pendke, learned counsel for the appellants and Shri D.S. Dharaskar, learned counsel for the respondent No.2 Insurance company.
5. Shri P.P. Pendke, learned counsel for the appellants has submitted that learned Tribunal has wrongly discharged the Insurance Company, though, there is sufficient evidence on record, more particularly, Exhibit No. 48 i.e. Insurance Policy. He, further submitted that the Insurance Company failed to prove that there was breach of policy, and the burden of proof therefore is not discharged by the Insurance Company. He, also submitted that the deceased was 45 years old and multiplier 14 as per Sarla Verma and others V/s Delhi Transport Corporation and another case is made applicable and there were six dependents. Therefore, after considering the notional income of Rs 2000/- and conventional amounts, total compensation would be Rs. 3,85,000/-. The appeal, therefore, be allowed, and the respondent Nos. 1 and 2 be held jointly and severely liable to be pay the amount of compensation.
6. Shri D.S. Dharaskar, learned counsel for the respondent No.2-Insurance Company has submitted that the ::: Uploaded on - 08/02/2019 ::: Downloaded on - 16/03/2019 01:10:33 ::: 217fa485.08.doc 4 vehicle insured is Goods Carrier, and the deceased was travelling by the said vehicle who was fair paying passenger, and therefore, the Insurance Company is not liable to pay the compensation to the appellants and the trial Court has rightly discharged the Insurance Company. The appeal filed by the claimant for enhancement as well as liability of Insurer therefore be dismissed.
7. Considering the submissions of both the sides, I have perused the impugned judgment and award as well as material placed on record. It appears that the appellants have filed the petition under Section 166 of the Motor Vehicles Act,1988 for compensation against the owner as well as Insurance Company.
The appellants have contended that the accident took place on 28.4.1996. The deceased Liladhar Daji Meshram was travelling by the said vehicle i.e. M.H.-35-771. The said vehicle was insured with Respondent No.2/Insurance Company at the relevant time. It is further contended that offence vide Crime No. 67/1996 was registered under Sections 279, 334, 338 and 427 of the Indian Penal Code against the driver of the said vehicle. It is contended that the deceased was earning Rs. 2,000/- per month by selling fishes at Gadchiroli. Therefore, they claimed compensation of Rs. 3,00,000/- from the owner as well as ::: Uploaded on - 08/02/2019 ::: Downloaded on - 16/03/2019 01:10:33 ::: 217fa485.08.doc 5 Insurance Company.
8. The Respondent No.1/Owner was ex-parte to the proceedings as he did not appear, though served. The respondent No.2/Insurance Company by filing written statement vide Exhibit No.22 resisted the claim of the applicant. According to the respondent No.2, the vehicle was utilized for traveling of the passenger, and therefore there is a breach of policy. The Insurance Company, therefore is not liable to pay the compensation.
After recording the evidence in the matter and hearing both the sides, the learned Tribunal passed the judgment and award as referred above. From the above facts and circumstances, the following points arises for my consideration.
POINTS FINDINGS
1] Whether the appellant/claimant are
entitled for enhanced compensation ? .... Yes.
2] Whether the impugned judgment and
award dated 13.2.2007 passed by the
Member, Motor Accident Claims Tribunal,
Gadchiroli in M.A.C.P No. 24/2001 requires
interference ? ... Yes.
3] What order ? .... As per final order.
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REASONS
9. From perusal of the evidence and record, it appears that the claimant Smt Gaura w/o Liladhar Meshram in her evidence, has stated that her husband died in the motor accident and the driver of the said offending vehicle was negligent while driving the same. Her oral evidence is corroborated by documentary evidence i.e. Spot Panchanama, Certified Copies of Charge-Sheet, F.I.R., Inquest Panchanama vide Exhibit Nos. 32 to 35 and documents i.e. Form-AA, Police Report and Post Mortem Report at Exhs. 36 to 38 respectively. The claimants have also filed cover note at Exhibit No.39. She was cross-examined at length on behalf of the respondent No.2-Insurance Company, however nothing was elicited in her cross-examination to disbelieve her.
10. The claimants have also examined one Vithabai Nathu Ahirkar, who was traveling in the said Metador. She has stated that the deceased Liladhar was traveling by Metador. According to her Liladhar had come to Gadchiroli for selling fishes and while returning to the village having baskets of fishes by the said Metador and the said Metador met with an accident. In the cross- examination, she admitted that the Metador was goods vehicle. She has also admitted that she has filed claim petition for ::: Uploaded on - 08/02/2019 ::: Downloaded on - 16/03/2019 01:10:33 ::: 217fa485.08.doc 7 compensation of injuries sustained by her in the said accident.
11. Considering the evidence of these two witnesses and documentary evidence on record, the claimants have established that an accident took place on 28.04.1996 and driver of the said vehicle i.e. MH-35-771 was negligent while driving the said vehicle and the offending vehicle was insured with the respondent No.2 at the relevant time.
12. As regards, the income of the deceased is concerned, the learned Tribunal has taken into account notional income Rs.2,000/-, the same being reasonable one and could be considered for determination of the compensation. The deceased was 45 years old at the time of accident, and therefore, as per the Sarla Verma and others V/s Delhi Transport Corporation and another case multiplier of 14 is made applicable. The claimants are six in numbers, therefore, deduction would be 1/4, for the loss of estate amount of Rs.15,000/- and for funeral expenses Rs. 15,000/- and for consortium amount of Rs. 40,000/- should be granted. So far as future prospects are concern no evidence on record to that effect. Hence, the claimants are not entitled for the same. If income of Rs. 2,000/- per month is considered annual ::: Uploaded on - 08/02/2019 ::: Downloaded on - 16/03/2019 01:10:33 ::: 217fa485.08.doc 8 income would be Rs. 24,000/- after deducting the amount for personal expenses it would come Rs. 18,000/- and by applying multiplier 14 it would come Rs. 2,52,000/- and Rs. 70,000/- for conventional compensation. The compensation would come to Rs.3,22,000/-. The learned Tribunal, however, granted compensation of Rs. 93,000/- only. The claimants thus entitled for enhanced compensation.
13. The submissions put forth on behalf of the appellant, that the Tribunal has wrongly held that the deceased undertook journey in the offending vehicle, and he is equally responsible, and therefore deducted half of the amount is not proper appears to be forceful. The said finding will have to be quashed and set aside. The learned Tribunal has also deducted 25% amount from compensation because same was paid by lumpsum is also liable to be quashed and set aside. This observation by the Tribunal is arbitrary and liable to be quashed.
14. As regards, the responsibility of Insurance Company is concerned, the learned Tribunal did not considered the Insurance Company's Policy [Exhibit-48], and wrongly exonerated the Insurance Company from its liability. From perusal of Exhibit ::: Uploaded on - 08/02/2019 ::: Downloaded on - 16/03/2019 01:10:33 ::: 217fa485.08.doc 9 No.48, it reveals that the amount of Rs.50/- was paid for one NFPP [non-fare paying passenger]. However, it reveals that amount of Rs. 60/- was paid for 3+1 and total amount of insurance was 7866 +393. The insurance cover note is at Exhibit No.39 of the same vehicle.
15. Considering the evidence adduced by the claimant, I am of the view that there is no breach of policy. On the contrary, burden lies upon the respondent No.2-Insurance Company, to establish the same by adducing evidence. The witness examined by the Insurance Company i.e. Dilip Boptuji Limaje who is Branch Manager, has stated that deceased Liladhar was traveling at the time of accident. He, also admitted that cover note [Exhibit No.39] and Policy Scheduled [Exhibit 48] were issued by the Insurance Company. However, he has not stated that how there was a breach of policy. He has clearly admitted that cover note [Exhibit No.39] was issued at the time of payment of first premium, and thereafter schedule Exhibit No.48 was issued. The policy Exhibit No.48 is issued in printed Form for goods carrying commercial vehicle. He also admitted that Rs. 50/- is typed against one NFPP in the schedule Exhibit No.48 that means the owner has paid the premium of Rs. 50/- for one non-fare paying passenger. ::: Uploaded on - 08/02/2019 ::: Downloaded on - 16/03/2019 01:10:33 ::: 217fa485.08.doc 10
16. Considering the above evidence on record, I am of the view that learned Tribunal was wrong while exonerating the Insurance Company. The Insurance Company is thus responsible to pay the compensation jointly with the owner. The appeal filed by the claimants / appellants deserves to be allowed.
17. Hence, I answer point No.1 and 2 in the affirmative and I proceed to pass following order:-
ORDER 1] First Appeal No. 485/2008 is allowed.
2] The impugned judgment and award is modified as under :-
i] The respondent Nos.1 and 2 are jointly and severely liable to pay the compensation of Rs. 3,22,000/-
(including NFL) with interest @ Rs. 7.5% from the date of application i.e. 21.6.2001 till its realization.
ii] The appellants Nos. 2 to 6 are having equal share in the said amount of compensation.::: Uploaded on - 08/02/2019 ::: Downloaded on - 16/03/2019 01:10:33 ::: 217fa485.08.doc 11
iii] The amount already paid be deducted from the award of compensation.
iv] No order as to costs.
JUDGE
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