Bombay High Court
The New India Assurance Company Limited ... vs Avinash Prabhakar Salpekar & Others on 25 July, 2017
fa-j 354-06.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 354 OF 2006
The New India Assurance Company Limited,
Through its Divisional Manager, Akola,
Having its Regional Office at
Dr. Baba Saheb Ambedkar Bhawan,
M.E.C.L. Building, Seminary Hills,
Nagpur-440 006. ....... APPELLANT.
...V E R S U S...
1] Avinash s/o Prabhakar Salpekar
Aged about 30 years, Occ.: Not Known
2] Amol s/o Prabhakar Salpekar
Aged about 27 years, Occ.: Not known
3] Prabhakar s/o Narayan Salpekar
Aged about 61 years, Occ.: Not known
The respondent nos. 1 to 3 all
R/o Chathurbhuj Colony
Tahsil Akola, District-Akola
4] Kashiram alias Ravi Ramsingh Rathod
Aged about 26 years, Occ.: Driver
5] Shailesh s/o Ramsingh Rathor
Aged about 31 years, Occ.: Business
Both the respondent nos. 4 and 5 are
R/o in front of PIS Colony
Khetan Nagar, Kaulkhed, Akola
Tahsil and Dist. Akola. .......RESPONDENTS.
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Shri A. J. Pophaly, Advocate for Appellant.
Shri A. P. Tathod, Advocate for Respondent nos. 4 & 5.
None for respondent nos. 1 to 3.
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fa-j 354-06.odt
2
CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
th
DATE : 25 JULY, 2017.
ORAL JUDGMENT
Appellant is the Insurance Company which is saddled with joint and several liability of payment of compensation of Rs.4,15,571/-, along with interest @ 6% per annum from the date of filing of petition till realization of entire amount, by the judgment and order dated 28.2.2006, passed by Motor Accident Claims Tribunal, Akola, in Claim Petition No. 62/2001. Being aggrieved thereby the instant appeal is preferred. 2] Brief facts of the appeal can be stated as follows:-
Deceased Vijaya was the wife of respondent no.1 and mother respondent nos. 2 and 3. On 15.6.1999 she had gone along with respondent nos. 1 to 3 to Yavatmal for attending engagement ceremony of their relative Mahendra Kapase. After the programme, they were returning in the jeep bearing no. MH- 30/B-1908, owned by respondent no.5 and driven by respondent no4. Around 9.30 p.m. to 10.00 p.m., on account or rash and negligent driving of respondent no.4, the jeep dashed to the neam tree which was standing by the side of the road. As a result, the persons sitting in the jeep, including deceased Vijaya, sustained ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 ::: fa-j 354-06.odt 3 serious injuries. She got multiple fractures to vital organs of her body. Initially she was admitted in Municipal Hospital, Karanja. Thereafter, she was transferred to District Hospital at Akola as the doctors showed their inability to treat her. Then she was taken to the hospital of Neuro Surgeon Dr. Gautam Darda in Nagpur. She was admitted there from 17.6.1999 to 13.7.1999. Thereafter, she was admitted in Ketki Research Institute of Medical Sciences, Nagpur where she had undergone surgical operations and lastly she was admitted to the Critical Care Unit, Nagpur. However, she succumbed to death there on 25.7.1999.
3] On account of her untimely death, respondent nos. 1 to 3 lost their support, love and affection. They also suffered financial loss, as deceased was taking private tuitions and earning the income for herself and for the family.
4] Respondent nos. 1 to 3, therefore, filed claim petition in the Tribunal under Section 166 of the Motor Vehicles Act, 1988 claiming total compensation of Rs.9,00,000/-, including the medical expenses for her treatment.
5] This petition came to be resisted by the appellant ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 ::: fa-j 354-06.odt 4 herein contending inter alia that deceased and respondent no. 1 to 3 were travelling in the jeep, at the time of accident, as fare paying passengers and therefore, as the accident has taken place on account of rashness and negligence on the part of jeep driver, the Insurance Company cannot be held liable to compensate the respondents. It was contended that the owner of the jeep-
respondent no.5 has committed the breach of terms and conditions of the policy by carrying fare paying passengers in the jeep. Their risk was not covered in the insurance policy and hence, on this ground itself, the claim petition was liable to be dismissed. 6] It was also denied that deceased was conducting the tuition and earning income. It was submitted that the amount claimed as compensation was exorbitant and hence, petition has to be dismissed.
7] On these respective pleadings of the parties, Tribunal framed necessary issue for its consideration at Exh.20. In support of their claim, respondent no.1 examined himself and also led the evidence of various doctors, under whose care, deceased was taking treatment. As against it, on behalf of appellant-Insurance Company, the evidence of its branch Manager Subhash Tapsi was ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 ::: fa-j 354-06.odt 5 led to prove the breach of the terms and conditions of the insurance policy.
0. On appreciation of this evidence, the Tribunal was pleased to hold that the appellant has failed to prove the breach of the terms and conditions of the insurance policy and hence, held that appellant was held liable to pay the compensation amount to respondent Nos.1 to 3, along with the owner of the jeep- respondent no.5, jointly and severally. The Tribunal held that notional income of the deceased was Rs.3,000/- per month, applied the multiplier of '11' and awarded the compensation of Rs.2,64,000/- towards the financial loss and some amount towards additional heads. Thus, the total amount of compensation awarded by the Tribunal to respondent nos. 1 to 3 was Rs.4,15,571/-.
8] This judgment of the Tribunal is challenged in this appeal by learned counsel for the appellant, mainly on the ground that there was no evidence relating to the income of the deceased and also pointing out that respondent nos. 1 and 3 are major sons whereas respondent no.1 is getting pension, hence, there was no dependency on the income of deceased. It is submitted that the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 ::: fa-j 354-06.odt 6 Tribunal has not properly appreciated the evidence relating to the terms and conditions of the insurance policy.
This judgment of the Tribunal is not challenged by respondent no. 1 to 3 or by respondent nos. 4 and 5. 9] Hence, the only two points arise for my consideration; the first is whether appellant proves that respondent no.5, the owner of the vehicle has committed breach of the terms and conditions of the insurance policy by carrying fare paying passengers in the jeep at the time of accident ? On this aspect, though appellant insurance company has examined its officer Subhash Tapsi, as rightly observed by the learned Tribunal, absolutely nothing is brought on record from his evidence to prove that at the time of accident deceased was travelling in the jeep as fare paying passenger. The only fact about which he has deposed is that the claim of respondent no.5 was treated as 'owned damage claim' and, therefore, he was entitled to only for 75% of the amount. In my considered opinion, that alone cannot prove that deceased was travelling in the jeep as fare paying passenger. 10] It is pertinent to note that in the claim petition and also in the evidence before the Court it is deposed that respondent no.5 who is the owner of the vehicle and respondent no.4, the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 ::: fa-j 354-06.odt 7 driver of the vehicle were close friends of Mahendra Kapse, for whose engagement ceremony deceased, along with family members respondent nos. 1 to 3 had gone. There is nothing on record to show that they had made any payment of fare to the owner or driver of the vehicle, so as to call them as "fare paying passengers". In the absence of such evidence on record, it becomes difficult to hold that the deceased and respondent nos. 1 to 3 were travelling in the jeep at the time of accident as fare paying passengers and, therefore, there was breach of the terms and conditions of policy. In my considered opinion, therefore, as the Tribunal has properly appreciated the evidence on record on this aspect, the finding arrived at by the Tribunal, holding the appellant jointly and severally liable with respondent Nos.4 and 5, liable to compensate respondent nos. 1 to 3 cannot be disturbed and needs to be confirmed.
11] The second point which arises for my consideration is about whether the quantum of compensation awarded by the Tribunal is just, legal and correct ? As per the evidence of respondent no.1, the deceased was having Diploma in Education. She has also passed "Vidya Visharad" examination. Her certificate to that effect is produced on record at Exh.25 and mark-sheet of ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 ::: fa-j 354-06.odt 8 Diploma at Exh.26. According to him, she was taking tuition and earning Rs.3,000/- per month. Now on account of her death, he is paying Rs.900/- per month to maid servant. In his cross- examination he has however, admitted that his wife has not maintained any account showing the number of students and fees collected by her, she was also not paying income tax. The Tribunal has in this respect considered the judgment of the Hon'ble Apex Court in the case of K.S.R.T.C. vs. Sussama Thomas (1994) I TAC 323 and held that in the absence of any documentary or other independent oral evidence on record, the income of the deceased as a house wife needs to be considered as Rs.3,000/- per month. After deducting 1/3rd therefrom towards her personal expenditure, the Tribunal has considered the dependency of the respondent nos. 1 to 3 as Rs.24,000/-. Having regard to the age of the deceased as 55 years, the Tribunal has applied the multiplier of '11' and calculated the amount of Rs. 2,64,000/- towards loss of dependency. The Tribunal has further awarded some amount that the loss of love and affection and consortium.
In my considered opinion, even if respondent no.1 is earning pension and respondent no.2 and 3 are the major sons, the loss of financial support which deceased was providing to ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 ::: fa-j 354-06.odt 9 them has to be considered. Especially having regard to the evidence of respondent no.1 that has he to engage the services of maid servant for household work. The amount of compensation therefore, awarded by the Tribunal as Rs.2,64,000/- towards loss of dependency neither can be called as is excessive nor exorbitant but it is reasonable amount and hence needs to be confirmed. 10] As regards the medical expenditure incurred by respondent nos. 1 to 3 towards the treatment of the deceased, sufficient evidence is adduced on record by respondents by examining Dr. Vijay Rathod, to prove the bill of Rs.2700/- Exh.33, then one Asif Mujaffar, who has proved the bill at Exh.98 of Rs.42,050/- at KRIMS hospital and further amount of Rs.5,201 at Exh.99 and Exh.100. Respondents have also examined Dr. Gautam Darda, in whose hospital deceased was admitted for about one month from 17.6.2199 to 13.7.1999. He has proved two bills for Rs.58,300/- at Exh.108 and another for bill for Rs.33,400/- Exh.109. Having regard to this amount which was spent by respondent no.1 towards medical treatment of the deceased, the Tribunal has rightly arrived at the figure of Rs.4,15,571/- as total amount of compensation to which respondent nos. 1 to 3 are held entitled.
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fa-j 354-06.odt 10 11] Thus, as the judgment of the Tribunal is based on the evidence produced on record and the amount of compensation awarded is also just, fair and reasonable, no interference is warranted therein in the appeal. The appeal therefore holds no merits. Hence, stands dismissed, with no order as to costs.
JUDGE RGIngole ::: Uploaded on - 05/08/2017 ::: Downloaded on - 08/08/2017 01:32:07 :::