Bombay High Court
Bajaj Allianz General Insurance Co. ... vs Smt. Kantabai Ramesh Ikhar And Others on 22 March, 2018
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 fa404.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL (FA) NO. 404/2017
Bajaj Allianz General Insurance Co. Ltd.,
Through the Senior Executive Claims (Legal),
7th Floor, Shriram Towers,
Near N.I.T. Building, Sadar,
Nagpur
.... APPELLANT.
// VERSUS //
1] Smt. Kantabai Ramesh Ikhar,
Aged 38 years, Occu:- Household
2] Ku. Rohini Ramesh Ikhar,
Aged 20 years, Occu:- Education
3] Ku. Priyanka Ramesh Ikhar,
Aged 18 years, Occu:- Education
4] Ch. Santosh Ramesh Ikhar,
Aged 16 years as on the date of petition,
presently major, Occu:- Education,
All R/o. Mahuli Jahagir,
Tq. and Dist. Amravati
5] Vinod Gulabrao Gadge,
Aged 32 years, Occu:- Auto Rickshaw Driver
and owner, R/o Talegaon, Shamjipant,
Tq. Ashti, Dist. Wardha
.... RESPONDENTS
.
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Judgment 2 fa404.2017.odt
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Shri D.N. Kukday, Advocate for the appellant
Shri S.R. Charpe, Advocate for the respondent nos. 1 to 4
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CORAM : Z.A.HAQ, J.
DATED : MARCH 22, 2018
ORAL JUDGMENT : -
Heard.
ADMIT.
Considering the nature of controversy and as record and proceedings is received, the appeal is taken up for final hearing. 2] The appellant (Insurance Company) has challenged the award passed by the Motor Accident Claims Tribunal by which the claim of the respondent nos. 1 to 4 (claimants) for compensation is upheld and the appellant (Insurance Company) and the respondent no. 5 (owner and driver of the vehicle) are held liable to pay the amount of compensation jointly and severally. The Tribunal has held that the claimants are entitled for compensation of Rs. 15,40,000/- alongwith interest.
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Judgment 3 fa404.2017.odt
3] The award is challenged mainly on the following grounds:-
"(i) That the claimants have failed to prove
that the driver of the autorickshaw in which the deceased was travelling, was having a valid licence on the date of the accident.
(ii) There is no material on record to show that the income of the deceased was Rs. 7,000/- p.m. as found by the Tribunal."
4] The learned advocate for the claimants has supported the impugned award.
5] After considering the rival submissions, I find that the following points arise for consideration:-
"(a) Whether the Tribunal has committed an error by holding that the appellant (Insurance Company) is jointly and severally liable to pay the amount of compensation, alongwith the owner of the vehicle in question.
(b) Whether the conclusions of the Tribunal that the income of deceased was Rs. 7,000/- p.m. are proper."
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Judgment 4 fa404.2017.odt 6] As far as the first point is concerned, I find that there
is no dispute that the vehicle involved in the accident and in which the deceased was travelling was insured with the appellant (Insurance Company). In the facts of the case, the appellant (Insurance Company) cannot be absolved of the liability of satisfying the claim of the claimants and as the material on record is insufficient to establish that the driver of the autorickshaw was not having licence/driving licence on the date of the accident, the appellant (Insurance Company) would be entitled to recover the amount paid by it from the respondent no. 5 (owner of the autorickshaw).
7] As far as the second point is concerned, I find that the evidence on record is not sufficient to establish the income of the deceased, therefore, I am of the view that the matter is required to be remanded to the Tribunal to grant one more opportunity to the claimants to adduce evidence to establish the income of the deceased.
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Judgment 5 fa404.2017.odt 8] The appellant (Insurance Company) had deposited
Rs. 25,19,352 /- before this Court, out of which, the claimants are permitted to withdraw Rs. 6, 29,838/-. 9] Considering the facts of the case, I find that the income of the deceased can be notionally treated as Rs. 3,000/- p.m. and as he was self-employed, considering the proposition laid down in the judgment given by the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in IV (2017) ACC at page 460 (SC), additional 25% will have to be granted towards future prospects, and ¼th amount will have to be deducted from this amount which the deceased would have spent for himself.
The learned advocate for the claimants has submitted that the respondent no. 1 (widow of the deceased) is aged about 47 years, the respondent nos. 2 and 3 (daughters of the deceased) are married after passing of the award by the Tribunal and the respondent no. 4 (son of the deceased) is student of M.Sc.
Considering the entitlement of the claimants for compensation under other conventional heads i.e. loss of ::: Uploaded on - 13/04/2018 ::: Downloaded on - 21/05/2018 12:03:05 ::: Judgment 6 fa404.2017.odt "consortium", loss of "funeral expenses and estate", it has to be held that provisionally the claimants are entitled for the amount of Rs. 9,27,251/- (this includes interest till today). Out of this amount, the claimants have withdrawn Rs. 6,29,838/-. 10] Considering the facts of the case, the following order is passed:-
O R D E R
a) It is held that the claimants are provisionally entitled for Rs. 9,27,251/- towards compensation (including interest till today).
This amount shall be paid by the appellant (Insurance Company) and the Insurance Company will be entitled to recover it from the respondent no. 5 (owner of the vehicle).
b) Out of the amount deposited by the appellant (Insurance Company) with the Registry of this Court, the claimants have withdrawn Rs. 6,29,838/-. In addition to this, the respondent no. 1 (Smt. Kantabai Ramesh Ikhar) be given Rs. 2,97,413/- (Rs. Two Lakh Ninety Seven Thousand ::: Uploaded on - 13/04/2018 ::: Downloaded on - 21/05/2018 12:03:05 ::: Judgment 7 fa404.2017.odt Four Hundred and Thirteen).
The balance amount be returned to the appellant (Insurance Company) on filing an undertaking that after the decision of the Tribunal on remand and subject to its right of filing appeal if so advised, the appellant (Insurance Company) shall deposit the amount if any, before the Tribunal within four weeks from the date of passing of the award.
c) The impugned award is modified and the matter is remanded to the Tribunal for deciding the entitlement of the claimants for additional compensation, if any.
d) The appellant and the respondent nos. 1 to 4 shall appear before the Motor Accident Claims Tribunal, Amravati on 06/06/2018 at 11:00 a.m. and abide by further orders/instructions in the matter.
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e) The determination of the amount is provisional and the Tribunal shall not be influenced by this order while considering the entitlement of the claimants for further amount of compensation which would depend on the evidence adduced by the claimants.
f) The parties are at liberty to amend the pleadings, produce documents and lead evidence on the point of income of the deceased and the entitlement of the claimants for additional compensation.
Except this point, the other points are not open for consideration by the Tribunal receivable by the claimants.
The appeal is disposed in the above terms. In the circumstances, the parties to bear their own costs.
The Tribunal shall dispose the proceedings till 30/11/2018.
JUDGE Ansari ::: Uploaded on - 13/04/2018 ::: Downloaded on - 21/05/2018 12:03:05 :::