Bombay High Court
Bhalchandra N. Donge And Anr. vs Mohan G. Butala And Ors. on 9 September, 1993
Equivalent citations: 1995ACJ898
JUDGMENT A.P. Shah, J.
1. Being aggrieved by the award, dated 29.1.1988, passed by the Motor Accidents Claims Tribunal, Pune, the original claimants have filed the present appeal under Section 110-A of the Motor Vehicles Act, 1939.
2. On 5.7.1980, deceased Shekhar, the only son of his parents, namely, appellant Nos. 1 and 2, was proceeding towards Alandi on a bicycle to visit his married sister. When deceased Shekhar was near the Mari-aai Gate, truck bearing No. MTL 634 belonging to respondent No. 2 dashed against him, which resulted in his death in the same night. The appellants, thereafter, filed an application under Section 110-A of the Motor Vehicles Act, 1939, before the Motor Accidents Claims Tribunal, Pune, against respondent Nos. 1 and 2, who were respectively driver and owner of the truck and the respondent No. 4, United India Insurance Co. Ltd., for compensation of Rs. 1,00,000/- on account of untimely death of deceased Shekhar.
3. Though respondent Nos. 1 and 2 filed separate written statements, their defence was common. The respondent Nos. 1 and 2 contended that the accident occurred not on account of rashness or negligence on the part of the respondent No. 1, but due to the negligence of the deceased Shekhar, who suddenly tried to cross the road and dashed against the truck. The respondent Nos. 1 and 2 also contended that the claim for compensation of Rs. 1,00,000/- was exorbitant and excessive. The respondent No. 2 contended that the truck was insured under insurance cover No. 60588 for the period from 26.12.1979 to 25.12.1980. The respondent No. 4, insurance company, in its written statements, Exhs. 126 and 112, mainly contended that the truck was not insured with the respondent No. 4 at all. The respondent No. 4 disputed the claim of the appellants that the death was caused due to negligence or rashness of the respondent No. 1. The respondent No. 4 also disputed the claim for compensation of Rs. 1,00,000/- as excessive and exorbitant. In any event, the respondent No. 4 contended that its liability should be restricted only to Rs. 50,000/- as per the provisions of the Motor Vehicles Act, 1939.
4. On appreciation of evidence led by the parties, the Tribunal, inter alia, held that deceased Shekhar died an accidental death due to rash and negligent driving by the opponent No. 1 and that the appellants are entitled to receive compensation of Rs. 35,000/- from opponent Nos. 1 and 2 with interest at the rate of 12 per cent per annum from the date of filing of the application till recovery. The Tribunal was pleased to dismiss the claim as against the insurance company on recording a finding that the truck was not insured at the time of accident.
5. Mr. Kotak, the learned counsel for the appellants, submits that the finding of the Tribunal that the truck was not insured is completely erroneous and perverse. Mr. Kotak draws our attention to the entries made in the tax payments and registration books of the respondent No. 2 and the report prepared by the Inspector of Motor Vehicles in support of the case of the appellants that the truck was insured with the respondent No. 4. Mr. Kotak also relies upon the evidence of Madhukar Banke, an R.T.A. officer and Vinayak Ghuriakikar, Inspector of Motor Vehicles, to further support the appellants' claim against the respondent No. 4. Mr. Kotak also criticised the finding of the Tribunal that the appellants are entitled to a sum of Rs. 35,000/- as against Rs. 1,00,000/-. Mr. Kotak submits that the Tribunal committed an error in fixing the dependency at a paltry sum of Rs. 250/- per month and applying multiplier of 10. According to Mr. Kotak, the dependency is much more and a multiplier of 25 should have been applied in the facts and circumstances of the case. In reply Mr. Kudroli, the learned counsel for respondent No. 4 and Mr. Dhakephalkar, the learned counsel for respondent No. 2, maintained that the award passed by the Tribunal is correct and just.
6. The first question which falls for our consideration is whether the amount of compensation awarded by the Tribunal is just and proper. The appellant No. 1, the father of the deceased, has deposed that he is a tailor by profession and that the deceased, who had studied up to VII the standard, was helping him in tailoring profession. He has further deposed that before the deceased joined him in his profession, he was getting only Rs. 250/- to Rs. 300/- per month, but soon after the joining of the deceased the said income increased to Rs. 800/- to Rs. 900/- per month. Thus, according to the appellants, the dependency was around Rs. 500/- to Rs. 600/- per month. The Tribunal has taken the dependency at Rs. 250/- per month. On perusal of the evidence, we are of the opinion that the dependency should have been fixed at Rs. 375/- per month. Considering the age of the appellants, we find that the Tribunal correctly applied the multiplier of 10. At the rate of Rs. 375/- per month, the yearly dependency comes to Rs. 4,500/-. Using the multiplier of 10 , the total amount comes to Rs. 45,000/-. The appellants have been deprived of the love and affection of their only son and, therefore, the appellants are entitled to Rs. 5,000/- on that count. We, therefore, hold that the appellants are entitled to Rs. 50,000/- by way of compensation.
7. Next question, which falls for our consideration, is whether the respondent No. 4, insurance company, is liable. In their application for compensation, the appellants have stated that the truck was insured with the respondent No. 4 under the cover note No. 60585 for the period from 26.12.1979 to 25.12.1980. In his written statement, respondent No. 2 stated that the correct cover note number is 60588. The respondent No. 2, however, failed to produce the insurance policy. The respondent No. 4 contended that the truck was not insured at all. The appellants produced material on record to show that at the relevant time, the truck was insured it the respondent No. 4. Madhukar Banke, an officer working with R.T.A., deposed on the basis of entries made in the record that the respondent No. 4 was the insurer in respect of the truck under policy bearing No. 59955 for the period between 18.12.1979 and 17.12.1980 and that again the truck was insured for the period between 26.12.1979 and 25.12.1980 under policy bearing No. 65085. Vinayak Ghunakikar, the Inspector of Motor Vehicles, deposed that he examined the offending truck after the accident and prepared report, Exh. 154. This report shows that the truck was insured with respondent No. 4 under cover note No. 60588. He said that he has prepared the report on the basis of the papers, which were found with the vehicle at the time of the inspection. We see no reason to disbelieve the record of the R.T.A. office and the report of the Motor Vehicles Inspector. It is true that there is some confusion about the exact policy number, but it is not possible to discard the evidence solely on that ground. The owner of the vehicle, namely, respondent No. 2 has given the correct policy number in the written statement. The R.T.A. officer has produced original register and deposed that two numbers of cover note/policy were issued by the respondent No. 4. The Inspector of Motor Vehicles has deposed that he had inspected the vehicle and its papers after the accident and he found a policy copy issued by the respondent No. 4. In our opinion, this evidence is sufficient to hold that the truck was insured with the respondent No. 4 at the time of accident. Turning now to the evidence of respondent No. 4. Its officer, Prabhakar Kulkarni, has deposed that a vehicle can be insured in any office of insurer and "it is possible that the truck No. 634 could have been insured by any other branch of our company..." It is also pertinent to note that the respondent No. 4 has failed to produce the cover note/policy in question to show that it was issued to someone other than respondent No. 2 or for a different vehicle. The respondent No. 4 has not alleged or proved that it never issued a cover note/policy of such number. We have, therefore, no hesitation to accept the appellants' case that the truck was insured with the respondent No. 4 at the time of accident.
8. For these reasons, we allow the appeal. The award dated 29.1.1988 passed by the Motor Accidents Claims Tribunal, Pune, is set aside and in its place the following award is passed:
Respondent Nos. 1, 2 and 4 to pay Rs. 50,000/- to the appellants with interest at the rate of 12 per cent per annum thereon from the date of application till recovery. Respondent Nos. 1, 2 and 4 to pay proportionate costs of the appellants and bear their own costs.