Bombay High Court
Smt Anusayabai Eknath Sable vs Laxman Maruti Jadhav & 4 Ors on 29 March, 2019
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 173 OF 2008
APPELLANT: Smt. Anusayabai Eknath Sable,
Aged 61, Occu. Housewife,
R/o Samvatsar, Tq. Kopargaon,
District Ahamadnagar.
-VERSUS-
RESPONDENTS: 1. Laxman Maruti Jadhav (Dead) through
Lrs:
1a) Smt. Shantabai Laxman Jadhav,
Aged 70 years,
1b) Shri Suresh Laxman Jadhav,
Aged 52 years,
1c) Shri Sunil Laxman Jadhav,
Aged 44 years,
All R/o Jadhav Mala, Balikashram
Road, Ahmednagar.
1d) Smt. Satyabhama Kundalik Shinde
(Dead) (Dismissed on R(J) 25-6-13)
1e) Smt. Sharda Narayan Dhadge,
Aged 47 years,
R/o Nagardewale,
Tq & District - Ahmednagar.
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2. New India Assurance Co. Ltd.,
Having its Branch Office at
Abbot Building Zendigate,
Ahmednagar.
3. Sheshrao Daulatrao Mahale (Dead)
(Deleted)
4. Arun R. Wagh,
(Dismissed R(J) 8/7/14)
5. The united India Insurance Co. Ltd.,
Having its Branch Office at Rajasthan, 1 st
Floor, Near Cotton Market, Akola.
Ms. D. Sapkal, Advocate for the appellant.
Shri A. H. Patil, Advocate for respondent No.2.
Shri M. M. Kalar, Advocate for the respondent No.5.
WITH
FIRST APPEAL NO. 1591 OF 2008
APPELLANT: The New India Assurance Company
(On R.A.) Limited, through its Branch Office at
Abbot Building Zendigate, Ahmednagar
(Original Respondent No.)
-VERSUS-
RESPONDENTS: 1. Smt. Anusuyabai Eknath Sabale, Aged
about 60 years, occupation-Household,
Resident of Samvatsar, Tq. Kopargaon,
District Ahmednagar.
2. Shri Dattatraya Nana Buchude (Deleted)
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3. Laxman Maruti Jadhav (Dead) through
Lrs:
3(a) Smt. Shantabai Laxman Jadhav,
aged 76 years, (widow)
3(b) Shri Suresh Laxman Jadhav,
aged about 52 years (son)
3(c) Shri Sunil Laxman Jadhav,
aged 44 years, (son)
All residents of Jadhav Mala,
Balikashram Road, Ahmednagar.
3(d) Smt. Satyabhama Kundalik Shinde
(Deleted)
3(e) Smt. Sharda Narayan Dhadge,
aged 47 years, Resident of Nagardewale,
Tahsil and Distt. Ahmednagar
(Daughter).
4. Sheshrao Daulatrao Mahale (Deleted)
5. Mr. Arun Ramkrishna Wagh, resident of
Wagh Construction House, Chhoti
Umari, Beside Servo Petrol Pump,
Earlier to Railway Bridge, Akoa, Tahsil
and District Akola.
6. United India Insurance Co. Ltd., having
its Branch Office at "Rajasthan" 1 st floor,
near Cotton Market, Akola, Tq. & Distt.
Akola.
Shri A. H. Patil, Advocate for the appellant.
Ms. D. Sapkal, Advocate for respondent No.1.
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WITH
FIRST APPEAL NO. 510 OF 2008
APPELLANT: The New India Assurance Company
Limited,through its Branch Office at
Abbot Building, Zendigate,
Ahmednagar.
-VERSUS-
RESPONDENTS: 1. Rahul Ganpatrao Sabale, major,
occupation presently nil, resident of
Shiv-Shakti, Near Baroda Bank Colony,
Jadhav Mala, Ahmednagar.
2. Shri Dattatraya Nana Buchude (Deleted)
3. Laxman Maruti Jadhav, (Dead)
3(a) Smt. Shantabai Laxman Jadhav,
aged 70 years,
3(b) Shri Suresh Laxman Jadhav,
aged 52 years,
3(c) Shri Sunil Laxman Jadhav,
aged 44 years,
all residents of Jadhav Mala,
Balikashram, Road, Ahmednagar.
3(d) Smt. Satyabhama Kundlik Shinde
(Deleted)
3(e) Smt. Sharda Narayan Dhadge,
aged 47 years, resident of
Nagardewale, Tahasil & District
Ahmednagar.
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4. Sheshrao Daulatrao Mahale (Dead)
(Deleted)
5. Shri Arun Ramkrishna Wagh, resident of
Wagh Construction House, Chhoti
Umari, Beside Doke Servo Petrol Pump,
Earlier to Railway Bridge, Akola, Tahsil
and District Akola.
6. The united India Insurance Co. Ltd.,
Having its Branch Office at Rajasthan,
First Floor, Near Cotton Market, Akola.
Shri A. H. Patil, Advocate for the appellant.
Ms. D. Sapkal, Advocate for respondent No.1.
Shri M. M. Kalar, Advocate for the respondent No.6.
WITH
FIRST APPEAL NO. 1162 OF 2008
APPELLANT: Rahul Ganpatrao Sable,
Aged Major, Occ. At present Nil,
R/o Shivshakti, Near Baroda
Bank Colony, Jadhav Mala,
Ahmadnagar.
-VERSUS-
RESPONDENTS: 1. Laxman Maruti Jadhav (dead) through
its L.Rs:
1a) Smt. Shantabai Laxman Jadhav,
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1b) Shri Suresh Laxman Jadhav.
1c) Shri Sunil Laxman Jadhav,
Respondent Nos.1(a) to 1(c) R/o Jadhav
Mala, Balkishram Road, Ahmednagar.
1(d) Smt. Satyabhama Kundlik Shinde
(Abated Registrar (J) order dated. 26-8-
04.)
1(e) Smt. Sharda Narayan Dhandge
Aged 47 years, R/o Nagardewale,
Tq. & District : Ahmednagar.
2. The New India Assurance Company,
Having its Branch Office at Abbot
Building, Zendigate, Ahmednagar.
3. Sheshrao Daulatrao Mahalde (Dead)
4. Arun R. Wagh,
Aged: Major, Occu: Business and
Agriculturist, R/o Ward No.43, Akola
(Dismissed as per Registrar (J) order
dated 24/9/2013)
5. The united India Insurance Company
Limited, Having its Branch Office at
Rajasthan, 1st Floor, Near Cotton
Market, Akola.
Ms. D. Sapkal, Advocate for the appellant.
Shri A. H. Patil, Advocate for respondent No.2.
Shri M. M. Kalar, Advocate for the respondent No.5.
WITH
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FIRST APPEAL NO. 1165 OF 2010
APPELLANT: The New India Assurance Company
(On R.A.) Limited,through its Branch Office at
Abbot Building, Zendigate, Ahmednagar
(Original Respondent No.6)
-VERSUS-
RESPONDENTS: 1. Shri Babanrao Raoji Girdge, Aged about
(On R.A.) 63 years,
2. Smt. Prayagabai Babanrao Gidge, Aged
52 years,
Both original claimants residents of
Mamadapur, Tq. Yewla, District Nashik.
3. Shri Dattatraya Nana Buchude, Aged 24
years, Driver, Resident of Ahmednagar.
4. Laxman Maruti Jadhav, (Dead) through
Lrs:
4(a) Smt. Shantabai Laxman Jadhav,
aged 70 years, resident of Jadhav Mala,
Balikashram Road, Ahmednagar, District
Ahmednagar (wife).
4(b) Shri Suresh Laxman Jadhav,
aged 52 years, resident of Jadhav Mala,
Balikashram Road, Ahmednagar, District
Ahmednagar (son).
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4(c) Shri Sunil Laxman Jadhav,
aged 44 years, resident of Jadhav Mala,
Balikashram Road, Ahmednagar, District
Ahmednagar.
4(d) Smt. Satyabhama Kundlik Shinde
(Deleted)
4(e) Smt. Sharda Narayan Dhadge,
aged 47 years, resident of
Nagardewale, Tahasil & District
Ahmednagar.
5. Sheshrao Daulatrao Mahale (Dead)
(Deleted)
6. Shri Arun Ramkrishna Wagh, Aged 57
years, Occupation-Businessman and
Agriculturist, resident of ?Ward No.43,
Akola.
7. The United India Insurance Company
Ltd., Regd. Head Office at 24, Vites
Road, Madras - 600 014.
Shri A. H. Patil, Advocate for the appellant.
Ms. D. Sapkal, Advocate for respondent Nos.1 & 2.
Shri M. M. Kalar, Advocate for the respondent No.7.
WITH
FIRST APPEAL NO. 445 OF 2009
APPELLANT: The New India Assurance Company
Limited,through its Branch Office at
Abbot Building, Zendigate, Ahmednagar
(Original Respondent No.3)
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-VERSUS-
RESPONDENTS: 1. Smt. Anusayabai Eknath Sable,
aged about 60 years,
Occupation;Household,
2. Bhausaheb Eknath Sable, aged about 38
years, Occupation-Service,
3. Balasaheb Eknath Sable, aged 36 years,
Occupation-Service,
All original Claimants residents of
Samvastar, Tq. Kopargaon,
District Ahmednagar.
4. Shri Dattatraya Nana Buchude,
aged 24 years, Drivedr, Resident of
Ahmednagar already deleted.
5. Laxman Maruti Jadhav, Major
Occupation-Agricuoturist,
Resident of Jadhav Mala,
Behind Balikashram,
Ahmednagar.
5(a) Smt. Shantabai Laxman Jadhav
aged about 70 years,
5(b) Shri Suresh Laxman Jadhav,
aged about 52 years,
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5(c) Shri Sunil Laxman Jadhav,
aged about 44 years,
All residents of Jadhav Mala
Balikasharam Roadk Ahmed Nagar.
Amendment carried out on 18/07/2013
vide court order dated 24/06/2013
5(d) Smt. Satyabhama Kundlik Shinde
(deleted).
5(e) Smt. Sharda Narayan Dhadge,
aged 47 years, Resident of
Nagardewale, Tahsil & Distt.
Ahmednagar.
6. Sheshrao Daulatrao Mahale,
Aged about 52 years, Driver, resident of
Gadgenarar, Akola Deleted vide court
order don 17/02/2009.
7. Shri Arun Ramkrishna Wagh,
Aged 57 years, Occupation-Businessman
and Agriculturist, resident of ?Ward
No.43, Akola.
8. The United India Insurance Co. Ltd.,
Regd. Head Office at 24, Vites Road,
Madras - 600 014.
Shri A. H. Patil, Advocate for the appellant.
Ms. D. Sapkal, Advocate for respondent Nos.1 to 3.
Shri M. M. Kalar, Advocate for the respondent No.8.
WITH
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FIRST APPEAL NO. 191 OF 2008
APPELLANTS 1. Smt. Anusayabai Eknath Sable
(On R.A.): Aged 61, Occ: Housewife,
2. Bhausaheb Eknath Sable,
Aged 38 years, Occ: Service,
3. Balasaheb Eknath Sable,
Aged 36 years, Occ: Service,
All the appellants are resident of
Samvatsar, Tq. Kopargaon,
District Ahamadnagar.
-VERSUS-
RESPONDENTS: 1. Laxman maruti Jadhav (Dead) through
(On RA) LRS:
1(a) Smt. Shantabai Laxman Jadhav,
aged about 70 years, wife,
1(b) Shri Suresh laxman Jahav,
Aged about 52 years, Son,
1(c) Shri Sunil Laxman Jadhav,
Aged about 44 yeares, Son,
All R/o Jadhav Mala, Balikashram Road,
Ahmednagar.
1(d) Smt. Satyabhama Kundalik Shinde,
(Daughter), R/o Shendi, Tah. and Distr.
Ahmednagar.
1(e) Smt. Sharda Narayan Dhadge,
Aged about 47 years, (daughter), R/o
Nagardewale, Tah. and Distt.
Ahmednagar.
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2. The New India Assurance Co. Ltd.,
Having its Branch Office at Abbot
Building, Zendigate, Ahmednagar.
3. Sheshrao Daulatrao Mahale (Deleted)
4. Arun R. Wagh,
Aged: Major, Occ: Businessman and
Agriculturist, R/o Ward No.43, Akola.
5. The United India Insurance Co. Ltd.,
Having its Branch Office at Rajasthan 1 st
Floor, Near Cotton Market, Akola.
Ms. D. Sapkal, Advocate for the appellant.
Shri A. H. Patil, Advocate for respondent No.2.
Shri M. M. Kalar, Advocate for the respondent No.5.
WITH
FIRST APPEAL NO. 318 OF 2009
APPELLANTS: The New India Assurance Company
Limited, through its Branch Office at
Abbot Building, Zendigate, Ahmednagar
(Original Respondent No.6)
-VERSUS-
RESPONDENTS: 1. Smt. Vidya Ganpatrao Sable, Aged about
54 years, Occ: Service,
2. Rajendra Ganpatrao Sable, Aged 26
years,
3. Shailendra Ganpatrao Sable,
Aged 27 years,
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4. Rahul Ganpatrao Sable,
Aged about 23 years,
5. Aarti Ganpatrao Sable, aged 23 years,
All original claimants residents of
Shivshakti, Near Badoda Bank Colony,
Jadhav Mala, Ahmednagar.
6. Shri Dattatraya Nana Buchude, Aged 24
years, Driver, R/o Ahmednagar
(Deleted).
7. Laxman Maruti Jadhav through Lrs:
7(a) Smt. Shantabai Laxman Jahav,
Aged 70 years,
7(b) Shri Suresh Laxman Jadhav,
aged 52 years,
7(c) Shri Sunil Laxman Jadhav,
Aged 44 years, (Amended as per Court
order dated.4.2.2014.)
All residents of Jadhav Mala,
Balikashram Road, Ahmednagar.
7(d) Smt. Sharda Narayan Dhadge,
Aged 47 years, resident of Nagardewale,
Tahsil and District Ahmednagar.
8. Sheshrao Daulatrao Mahale, Aged about
52 years, Driver, R/o Gadgenagar, Akola
(Deleted)
9. Mr. Arun Ramkrishna Wagh,
Resident of Wagh Construction House,
Chhoti Umari, Beside Doke Servo
Petyrol Pump, Earlier to Railway Bridge,
Akola, Tahsil and District Akola.
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Shri A. H. Patel, Advocate for the appellant.
Ms. D. Sapkal, Advocate for respondent Nos. 1 to 5.
Shri M. M. Kalar, Advocate for the respondent No.10.
WITH
FIRST APPEAL NO. 176 OF 2008
APPELLANTS: 1. Smt. Vidya Ganpatrao Sable,
Aged 53, Occ: Service,
2. Rajendra Ganpatrao Sable,
Aged 27 years, Occ: Service,
3. Shailendra Ganpatrao Sable,
Aged 27 years, Occu: Student,
4. Rahul Ganpatrao Sable,Aged 26 years,
Occu: Student,
5. Aarati Ganpatrao Sable,
Aged 24 years, Occu: Education,
All the appellants are resident of R/o
Shivahakti, Near Badoda Banik Colony,
Jadhav Mala, Ahmednagar.
-VERSUS-
RESPONDENTS: 1. Laxman Maruti Jadhav,
Aged Msajor, Occu: Agriculturist,
R/o Jadhav, Mala Behind, Balikashram,
Ahmednagar.
2. The New India Assurance Co. Ltd.
Having its Branch Office at Abbot
Building, Zendingate, Ahmednagar.
3. Sheshrao Daulatrao Mahale (Deleted)
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Appeal is 4. Arun R. Wagh,
dismissed against
Aged Major, Occ: Businessman,
Respondent No.4.
Agriculturist, R/o Ward No.43, Akola.
5. The United India Insurance Co. Ltd.
Having its Branch Office at Rajasthan 1 st
Floor, Near Cotton, Market, Akola.
Ms. D. Sapkal, Advocate for the appellant.
Shri A. H. Patil, Advocate for respondent No.2.
Shri M. M. Kalar, Advocate for the respondent No.6.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 06-02-2019
DATE ON WHICH JUDGMENT IS PRONOUNCED: 29-03-2019
ORAL JUDGMENT :
1. All these appeals filed under Section 173 of the Motor Vehicles Act, 1988 (for short, the said Act) are being decided by this common judgment in view of the fact that all the claim petitions arise from the same accident.
2. The facts giving rise to these proceedings are that on 27-4-1994, a Matador that was owned by one Laxman Jadhav and which was insured with the New India Assurance Company Limited collided with a truck which was in a stationary position. The said truck was owned by Arun Wagh and it was insured with the United India Insurance Company Ltd. In that accident, both ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 16/37 Ganpatrao Sable and his brother Eknath Sable who were travelling in the Matador alongwith their families were seriously injured and they succumbed to their injuries. Similarly, injuries were also suffered by other passengers who were travelling in the said Matador. The said accident gave rise to various claim petitions under Section 166 of the said Act. On behalf of the insurer of the Matador a plea was raised that the said vehicle was registered as a private vehicle and not as a taxi. Under the policy of insurance there was a limitation to its use and such use was permissible only by the owner of the said private vehicle. Since the victims were travelling from Ahmednagar to Kashi, it was clear that the vehicle had been given on hire. On the part of the owner of the vehicle it was pleaded that the Matador was not given on hire or reward, but for a social purpose as the ashes of the mother of Ganpatrao Sable who had expired earlier were to be immersed. The Claims Tribunal allowed the claim petitions and held the Insurance Company of the Matador liable to pay the amount of compensation along with such liability being saddled on the owner of the truck as well as its insurer. It is in this backdrop that the present appeals have been filed.
3. First Appeal No.318/2009 arises out of the adjudication of Claim Petition No.57 of 2000. By the judgment ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 17/37 dated 16-8-2007 the Claims Tribunal has awarded an amount of Rs.5,82,628/- as compensation and the same was directed to be paid by the owner of the Matador as well as its insurer and also the owner of the truck and its insurer jointly and severally.
First Appeal No.173/2008 has been filed by the claimants seeking enhancement in the amount of compensation as awarded by the Claims Tribunal.
4. First Appeal No.191/2008 arises out of the adjudication of Claim Petition No.58/2000. The victim herein is Eknath Sable and the Claims Tribunal by its judgment dated 20-8-2007 has awarded compensation of Rs.59,500/-. The owner of the Matador as well as its insurer along with the owner of the truck and its insurer have been held jointly and severally liable to pay the amount of compensation. The claimants have filed First Appeal No.191/2008 seeking enhancement in the amount of compensation while the insurer of the Matador has filed First Appeal No.445 of 2008.
5. First Appeal No.510/2008 has been filed by the insurer of the Matador challenging the adjudication in M.A.C.P. No.59/2000. The victim here is Rahul Ganpatrao Sable who had sustained injuries in the said accident. The Claims Tribunal has awarded a sum of Rs.7,22,000/- under Section 166 of the said Act ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 18/37 as compensation. The said amount has been directed to be paid by the owner of the Matador and its insurer as well as by the owner of the truck and its insurer jointly and severally. The victim has filed First Appeal No.1162/2008 seeking enhancement in the amount of compensation as awarded.
6. First Appeal No.1591/2008 arises out of adjudication of M.A.C.P. No.60/2000 that has been filed by Anusayabai Eknath Sable who was injured in the said accident. By judgment dated 24-8-2007, the Claims Tribunal has awarded a sum of Rs.40,543/- and the same has been directed to be paid by the owner of the Matador and its insurer as well as the owner of the truck and its insurer jointly and severally. The victim has filed First Appeal No.173/2008 seeking enhancement in the amount of compensation as awarded.
7. Shri A. H. Patil, learned Counsel for the appellant - insurer of the Matador in support of the appeals submitted that the learned Member of the Claims Tribunal erred in holding the insurer of the Matador liable to satisfy the claim for compensation. Referring to the insurance policy in question, it was submitted that there were specific limitations as to its use. Its use only for social, domestic and pleasure purposes as well as for the own business of the insured was permitted. According to him, the said Matador had ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 19/37 been let on hire as the passengers therein were travelling from Ahmednagar to Kashi. The passengers therein were not family members of the owner of the Matador. It was brought on record that fuel charges of Rs.5000/- had been paid to the driver which indicated that the Matador was being used as a taxi. Such use could not be said to be either social, domestic or for the purposes of pleasure of the owner. Ignoring these restrictions in the insurance policy, the Claims Tribunal proceeded to saddle liability on the insurer. It was further submitted that the policy in question was dated 6-3-1994 which indicated that it came into force prior to the amendment to the provisions of Section 147(1)(b)(i) of the said Act. The said provisions were amended with effect from 14- 11-1994. As a result the risk of the insured was not duly covered on the date of the accident which was 27-4-1994. He submitted that since the claimants were travelling in the Matador they could not be called as third party and that they were travelling at their own risk. Even the risk of a gratuitous passenger was not covered and as no additional premium had been paid, the liability, if any, was required to be satisfied only by the owner of the Matador and not by the insurer. Without prejudice to the aforesaid submissions, it was urged by way of an alternate submission that at the highest a direction to pay and recover the amount of compensation could ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 20/37 have been issued by the Claims Tribunal. In support of his submissions, the learned Counsel placed reliance on the following decisions:
(A) United India Insurance Co. Ltd. vs. Tilak Singh and others (2006) 4 SCC 404.
(B) New India Assurance Co. Ltd. vs. Ranglal Punju Nikam and others 2007(4) Mh.L.J. 321.
(C) United India Insurance Co. Ltd. Vs Anubai Gopichand Thakare and otheres 2008(1) Mh.L.J. 73.
(D) Manuara Khatun and ors vs. Rajesh Kr. Singh & Ors. 2017 (5) Mh.L.J. 522.
(E) Jayakumar v. Rajamma and others 2005 ACJ 172. (F) United India Insurance Co. Ltd. Vs Celinamma 2003 ACJ 623. (G) Goshen Stones Crushers vs. Mrs. Fathimuthu and ors 1(2002) ACC 700.
(H) Niranjan Singh v. Om Suta and others 2005 ACJ 548.
8. Ms. D. Sapkal, learned Counsel for the claimants on the other hand submitted that the Claims Tribunal rightly held the insurer liable to satisfy the claims for compensation. Under the terms of the insurance policy, the use of the Matador was permissible for domestic purposes. There were family relations between the family members of the owner of the vehicle and the persons who were travelling therein. The son of the owner of the Matador namely Sunil Jadhav was working in the college in which ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 21/37 one of the victims, Ganpatrao Sable was the Principal. As said Ganpatrao Sable intended to go to Kashi for immersion of ashes of his mother, the Matador in question was given to him. No rent or hire charges were taken from the passengers who were all members of the family of Ganpatrao Sable. The vehicle was not being used as a Taxi and the amount of Rs.5000/- given to the driver was only for meeting fuel expenses and other charges. It was submitted that the Claims Tribunal rightly noted that there was no evidence on record to indicate any fare being charged from the passengers and on the contrary, the relationship between the parties with the owner of the vehicle was clearly proved. The Insurance Company did not discharge its burden of proving the breach of the terms of the insurance policy and hence it was not liable to be exonerated from its liability. It was then submitted that the amount of compensation as awarded was on the lower side and by applying law as laid down by the Hon'ble Supreme Court in the matter of grant of just and fair compensation, the amounts granted deserve to be suitably enhanced. She referred to the evidence on record to indicate entitlement for higher compensation. In support of her submissions the learned Counsel placed reliance on the following decisions:
(A) Manager National Insurance Company Limited vs. Saju ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 22/37 P. Paul and another (2013)2 SCC 41.
(B) Manuara Khatun and Ors. v. Rajesh Kr. Singh and Ors AIR 2017 SC 1204.
(C) Sanjay Verma vs. Haryana Roadways (2014) 3 SCC 210. (D) National Insurance Company Limited vs. Pranay Sethi and others (2017) 16 SCCC 680.
(E) Nagappa v Gurudayal Singh and others AIR 2003 SC 674. (F) National Insurance Co. Ltd. vs. Indira Srivastava and Ors AIR 2008 SC 845.
9. In the light of aforesaid submissions, the following points arise for adjudication:
(1) Whether the insurer is liable to be exonerated of its liability from payment of compensation?
(2) Whether the claimants have proved their entitlement for higher compensation?
10. I have heard the learned Counsel for the parties at length and with their assistance I have gone through the records of the case. As per the evidence on record, it can be seen that on 27- 4-1994 the family of Ganpatrao Sable as well as the family of his brother Eknath Sable were proceeding in a Matador that was owned by Laxman Jadhav from Ahmednagar to Kashi. On Balapur Khamgaon road, the said Matador gave a dash to a truck which was owned by Arun Wagh and insured with the United India ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 23/37 Insurance Co. Ltd., resulting in an accident. In that accident Ganpatrao Sable and his brother Eknath Sable died on the spot. The son of Ganpatrao Sable, Rahul, and the widow of Eknath Sable, Anusayabai suffered injuries. The Matador was duly insured with the New India Assurance Company Limited, the policy being taken on 6-3-1994. The risk in question was covered for a period of one year till 5-3-1995. The sitting capacity including the driver was of nine persons. In the policy, the limitations as to its use were stated to be only for social, domestic and pleasure purposes as well as for the own business of the insured. As noted above, the owner of the vehicle took the plea that on account of family relations with the family Ganpatrao Sable, the Matador in question was permitted to be used as Ganpatrao Sable and his family members intended to go to various religious places for immersion of the ashes of the mother of Ganpatrao Sable. While the claimants examined themselves in support of the claim for compensation and placed on record various documents, the insurer of the Matador examined its Assistant Administrative Officer. According to this witness, the owner was prohibited from using the vehicle for carrying passengers on hire and therefore as twelve passengers were travelling in the said vehicle by paying hire charges, the Insurance Company was not liable to pay compensation due to ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 24/37 breach of policy conditions. In his cross-examination said witness admitted that he had not produced any document to show that the vehicle was hired by the persons travelling therein. He further stated that he had no personal knowledge about the number of passengers travelling therein or whether the terms and conditions of the policy were duly explained to the owner of the vehicle. The son of the owner of the vehicle was also examined on behalf of the claimants and he deposed that in view of family relations between the parties, the vehicle in question was given to the family members of Ganpatrao Sable without charging any hire or rent. The owner of the truck as well as its insurer did not participate in the proceedings nor did they lead any evidence in that regard. The fact that the truck in question was duly insured with the United India Insurance Co. Ltd. is not in dispute and said policy was effective for the period from 26-10-1993 to 25-10-1994. The aforesaid is the nature of evidence on record.
11. As per the insurance policy dated 6-3-1994 the Matador in question is shown to have sitting capacity of nine persons including the driver. Premium of Rs.25/- each has been paid for nine passengers which is Rs.225/-. The risk covered for those nine passengers is Rs.50,000/- each. As noted above the limitations as to use of the said Matador is for social, domestic and ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 25/37 pleasure purposes as well as for the insured's own business. In other words, the insured could have used the said Matador in the light of the limitations stated in the policy. The son of the insured Sunil Jadhav, who was examined at Exhibit-104 has clearly deposed that the Matador was given to the family of the claimants to enable them to immerse the ashes of the mother of Ganpatrao Sable. Said Sunil Jadhav was employed at New Law College where deceased Ganpatrao Sable was the Principal. In the light of aforesaid evidence on record and there being no contradictory evidence led by the insurer of the Matador to indicate that the vehicle was given on hire, it cannot be said that the vehicle was given on hire. In other words, the Matador was used by the insured within the limitations of the policy. In the light of the relations between the family of the deceased namely Ganpatrao Sable with son of the owner of the Matador - Laxman Jadhav, it can be said that the vehicle was given for domestic use by the insured. Merely because an amount of Rs.5000/- was given to the driver by the son of the owner of the Matador towards the fuel expenses, the same would not indicate that the vehicle was given on hire. The burden to prove breach of policy conditions was on the Insurance Company but it has not led any evidence on record to prove that aspect. The Claims Tribunal has after considering the ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 26/37 entire evidence on record found that the defence raised by the insurer of the Matador was not substantiated by any evidence and hence breach of policy conditions was not proved. There is no reason to disturb this finding.
However, at the same time in view of the fact that by paying premium of Rs.25/- each for covering the risk of personal accident of nine passengers, the liability of the Insurance Company would be limited to the extent of Rs.50,000/- each. It is thus held that the Matador was used in terms of insurance policy and the risk of nine passengers to the extent of Rs.50,000/- each stood covered.
12. On the aspect of negligence of the driver of the Matador and the driver of the stationary truck, it has been found by the Claims Tribunal on the basis of evidence on record that the truck insured with the United India Insurance Company Limited had been parked without taking appropriate precaution. Similarly, the Matador was being driven in a rash and negligent manner resulting in the said accident.
The insurer of the truck has not challenged the finding recorded by the Claims Tribunal that the truck owner was liable to satisfy the claim to the extent of 50% as it had equally contributed to the accident. That finding has attained finality. In that view of ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 27/37 the matter, it is clear that the insurers of the Matador and the truck along with the owners of the vehicles are jointly and severally liable to satisfy the claims for compensation.
13. Though reliance was placed by the learned Counsel for the Insurance Company on various decisions to substantiate his contention that the claimants/deceased were not covered under the terms of the insurance policy nor could they be treated as third parties, in the light of the stipulation in the insurance policy covering risk of nine passengers including the driver and in view of the limited cover towards personal accident benefits, that contention cannot be accepted. Similarly, as regards the provisions of Section 147 of the said Act as applicable prior to the amendment that came into force on 4-11-1994 the same would not make material difference in the present facts. It has to be noted that the Matador was not a goods carrier, but it was a station wagon in which nine persons including the driver were permitted to travel. The liability of the Insurance Company would therefore be limited in terms of the policy issued by it. By following the law as laid down in Manura Khatun and others (supra), a direction to pay and recover the amount of compensation in excess of the amount of risk as covered is liable to be issued. Both the insurers would be jointly and severally liable to satisfy the claims for ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 28/37 compensation along with the owners of the respective vehicles. The New India Assurance Company Limited would be liable to pay Rs.50,000/- to each of the claimants in terms of the policy and it is at liberty to recover the balance amount to the extent of its liability from the owner of the vehicle. Point No.1 stands answered accordingly.
14. As regards the claim for higher compensation sought by the claimants by filing separate appeals, the same would have to be adjudicated with regard to the respective claimants.
FIRST APPEAL NO.176 OF 2008:
This appeal arises from the adjudication in Claim Petition No.57/2000. Compensation herein has been sought on account of the death of Ganpatrao Sable. The evidence on record indicates that said Ganpatrao was engaged as Principal of the New Law College at Ahmednagar. He was about 54 years when the accident took place. In support of the claim for compensation, various witnesses were examined. An Accountant from the said College was examined at Exhibit-85. He deposed with regard to the salary being received by the deceased. According to him, on 1- 1-1996 Shri Sable was getting Rs.1494/- as basic pay. The certificate at Exhibit-52 indicates the gross salary of Shri Sable at Rs.8168/- per month. Professional Tax of Rs.50/- was being ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 29/37 deducted. Thus, on the date of the accident his salary after deducting the professional tax can be taken at Rs.8100/- per month. The annual salary would therefore be Rs.97,200/-. It has come in the evidence that Shri Sable was also doing some additional work with regard to assessment of examination papers and for that purpose claim of Rs.25,000/- per year was made. Considering the material on record an amount of Rs.20,000/- annually can be considered in that regard. This would make the annual loss of income to Rs.1,17,066/-. After deducting 1/3rd amount towards personal expenses, the balance would be Rs.78,134/-. Considering the age of the deceased multiplier of 11 can be taken giving total loss of income at Rs.8,59,474/-. An amount of Rs.70,000/- on the conventional heads also can be granted making a total of Rs.9,29,474/-. The Claims Tribunal has awarded an amount of Rs.5,82,628/- and therefore the claimants are entitled to a further amount of Rs.3,46,846/-. This amount of additional compensation is liable to be paid with interest at the rate of 7.5% per annum from the date of the application till realization.
15. FIRST APPEAL NO.173 OF 2008:
This appeal arises from Claim Petition No.60/2000. The claimant herein is Anusayabai who was injured in the said ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 30/37 accident. She was aged about 55 years when the accident took place. The evidence on record indicates that she was hospitalized from 2-5-1994 to 29-6-1994 and thereafter again from 28-7-1997 to 11-8-1997. There are various documents indicating the treatment taken by her along with the medical bills. As per Exhibit-68, an amount of Rs.8313/- was spent in paying the medical charges of the Doctor examined at Exhibit-39. Similarly, the medicines purchased vide Exhibits-71 and 72 are for Rs.7323.27 and Rs.9829/-. Exhibits-74 to 76 indicate the amounts spent towards treatment as deposed by the Doctor examined at Exhibit-73. The total amount thereto comes to Rs.36,600/-. The appellant would be entitled for all these amounts spent on treatment. By examining the Medical Officer at Exhibit C-1 residential disability to the extent of 20% is sought to be brought on record. Considering the age of the claimant and other evidence on record, an amount of Rs.50,000/- is liable to be granted to the claimant on account of the residential disability suffered by her. Rs.50,000/- is awarded towards pain and suffering on account of the accident. The total amount of compensation would thus come to Rs.1,36,600/-. The Claims Tribunal has awarded an amount of Rs.40,543/- and after deducting the same, the balance amount of Rs.96,057/- is liable to be paid with interest at the rate of 7.5 per ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 31/37 cent per annum from the date of filing of the Claim Petition till realization.
16. FIRST APPEAL NO.1162 OF 2008:
This first appeal arises from Claim Petition No.59/2000. The claimant herein is Rahul Sable who was aged about 19 years when the accident took place. The evidence on record indicates that the claimant had passed his 12 th standard examination and was intending to become an Engineer. He had secured 86% marks in the S.S.C. Examination. The injuries suffered by him are indicated by the disability certificate at Exhibit-63. The same indicates that injuries were suffered to the spine as well as the cervical vertebra. Doctor Uday Vaidya from Sancheti Hospital who was examined at Exhibit-133 has referred to expenses of Rs.67,465/- as per Exhibit-134 and Rs.15,043/- as per Exhibit-135 while treating the claimant. Doctor P. H. Bhangdiya examined at Exhibit-92 has deposed about the medical expenses which can be seen to be Rs.54,000/- each as per Article C-1 and C-2 while Rs.33,000/- was paid as per Article-3. Rs.2,500/- as per Exhibit-97, Rs.2000/- as per Exhibit-98 and Rs.4950/- as per Exhibit-99 have been paid as medical expenses at Jehangir Nursing Home. The Assistant Medical Superintendent of Inlaks and Budhrani Hospital has been examined at Exhibit-100. ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 32/37 He deposed as to the medical bills at Exhibits 10 to 49 issued by the Hospital towards the treatment of Rahul Sable. The total amount thus spent on the medical treatment of Rahul Sable which is duly supported by various bills and receipts is Rs.3,42,681.88. The claimant would be entitled for the entire amount of medical expenses.
17. To prove the disability of the claimant, Dr. Vijay Patil was examined at Exhibit C-2. He deposed about the treatment given to the claimant from time to time. The said witness also issued the disability certificate at Exhibit C-3 indicating 60% permanent disability. In absence of any contradictory cross- examination, there is no reason to doubt the version of said witness. Hence, the permanent disability suffered by the claimant to the extent of 60% has been duly proved on record.
18. Considering the nature of disability suffered by the claimant and in the light of the fact that he was a student aspiring to become an Engineer, his claim would have to be assessed on that basis.
The evidence on record indicates that the claimant suffered injuries when he was a student having appeared for his 12th standard examination. According to the claimant, he was a bright student and he intended to become an engineer in future. ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 33/37 A student studying with the claimant was also examined as witness No.4 and he deposed that after completing his graduation he had gone to the United States for further studies and he was getting salary of Rs.2,50,000/- per year. By keeping in mind the general uncertainties in life and by taking an overall view of the matter, it can be assumed with some guess work that he would have earned Rs.15,000/- per month in future. On that basis his annual income would be Rs.1,80,000/-. By taking future prospects at 40%, an amount of Rs.72,000/- is liable to be added making the total to be Rs.2,52,000/-. 50% amount is liable to be deducted towards the personal expenses which would be Rs.1,26,000/-. Considering the age of the claimant multiplier applicable would be 17 thus giving a figure of Rs.21,42,000/-. In the light of the disability certificate placed on record indicating 60% permanent disability and in the light of the fact that the claimant intended to become an engineer as a professional, the loss on account of the disability suffered can be assessed at 50% thus, entitling the claimant to an amount of Rs.10,71,000/- on that count.
The claimant is also entitled to receive an amount of Rs.3,42,682/- towards actual medical expenses. An amount of Rs.1,00,000/- is granted towards pain and suffering as well as for loss of amenities. An amount of Rs.75,000/- is admissible for ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 34/37 future medical expenses. Thus the total amount of compensation to which the claimant would be entitled is Rs.15,88,682/-. After deducting the amount of compensation of Rs.7,22,000/- as already awarded by the Claims Tribunal, the additional compensation would be liable to be paid with interest @7.5 % per annum from the date of filing of the claim petition till realization.
19. FIRST APPEAL NO.191/2008:
This appeal arises from Claim Petition No.58/2000 that has been filed by Anusayabai, the widow of Eknath Sable who expired in the said accident. The claim as made is for an amount of Rs.1,00,000/-. As per evidence led by the claimant, the deceased was aged about 61 years when the accident took place. He was doing agricultural business and was also selling milk. 7/12 Extracts at Exhibits 61 to 64 and 66 to 68 for the year 1993-94 were placed on record. Similarly, a certificate at Exhibit-60 showing collection of milk was also placed on record. The son of the deceased deposed that from the agricultural activities, his father was earning Rs.20,000/- to Rs.25,000/- per year. From the milk business, he was earning Rs.2000/- to Rs.3000/- per month. In the light of the evidence on record, monthly notional income of Rs.2,500/- can be considered. The annual income therefore would be Rs.30,000/-. 1/3rd amount is liable to be deducted towards the ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 35/37 personal expenses leaving the balance of Rs.20,000/-. Considering the age of the deceased as 61, the multiplier applicable would be five. This would take the total of loss of income to Rs.1,00,000/-. In terms of the decision in Pranay Sethi and others (supra), Rs.70,000/- would be liable to be awarded on the conventional heads. This would make the total compensation payable to Rs.1,70,000/-. After deducting the amount of Rs.59,500/- granted by the Claims Tribunal, the balance compensation is liable to be paid with interest @ 7.5% per annum from the date of filing of the claim petition till realization.
20. In the light of aforesaid discussion, the following order is passed:
(1) First Appeal Nos. 173/2008, 1162/2008, 191/2008 and 176/2008 filed by the claimants are partly allowed as under:
(a) In First Appeal No.173/2008 the claimant is entitled for additional compensation of Rs.96,057/- payable with interest @7.5 % per annum from the date of filing of the claim petition till realization.
(b) In First Appeal No.1162/2008 the claimant is entitled for additional compensation of Rs.8,66,682/- with interest at 7.5% per annum from the date of filing the claim petition till realization.
(c) In First Appeal No.191/2008 the claimant is entitled ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 ::: fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 36/37 for additional compensation of Rs.1,10,500/- with interest at 7.5% per annum from the date of filing the claim petition till realization.
(d) In First Appeal No.176/2008, the claimants would be entitled for additional compensation of Rs.3,46,846/- with interest at 7.5% per annum from the date of filing the claim petition till realization.
(2) First Appeal Nos.1591/2008, 510/2008, 1165/2010, 445/2009 and 318/2009 filed by the Insurance Company are partly allowed to the extent of the direction to pay and recover as stated in direction no. (3) below.
(3) The amount of compensation as determined includes the amount granted under no-fault liability. The compensation shall be jointly and severally paid by the New India Assurance Company Limited as well as by the United India Insurance Company Limited in equal proportion. In so far as the claim to be satisfied by the New India Assurance Company is concerned, the amount to be paid in terms of the insurance policy to each claimant would be Rs.50,000/- each. The amount of compensation over and above the amount of Rs.50,000/- payable by said Insurance Company shall first be paid by it to the claimants and thereafter that amount can be recovered from the owner of the Matador in accordance with law.
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fa173.08,1591.08,501.08,1162.08,1165.10,191.08,445.08,318.09,176.08 .odt 37/37 (4) The claimants shall first pay the deficit Court fees if any before receiving the amount of enhanced compensation. The parties shall bear their own costs.
JUDGE //MULEY// ::: Uploaded on - 15/05/2019 ::: Downloaded on - 05/04/2020 04:34:17 :::