Bombay High Court
The Oriental Insurance Company Ltd vs Smt Rajkumari Laxmikant Pandey & Others on 14 July, 2017
236-FA-235-06 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.235 OF 2006
The Oriental Insurance Company Limited,
Branch : Chandrapur, Tahsil and Dist. Chandrapur,
Thr. Its senior Divisional Manager,
Nagpur Divisional Office-I, A. D. Complex,
Mount Road, Sadar, Nagpur. .... Appellant.
vs-
1. Rajkumari w/o Laxmikant Pandey
Aged about 50 years, Occ. Household,
2. Laxmikant s/o Shivjatan Prasad Pandey,
Aged about 56 years, Occ. Nil.
3. Vandana d/o Laxmikant Pandey,
Aged bout 21 years, Occ. Student.
All residents of Near Gajanan Maharaj
Mandir Road, Chandrapur, Tahsil and
District Chandrapur (Original Claimants)
4. Tulshiram s/o Kisan Soyam,
Aged about 41 years, Occ. Driver,
R/o Akapur, P. S. Mul, Tahsil. Mul
District Chandrapur (Original non-applicant No.1)
5. M/s Prakash Tiles Factory,
Through its Proprietor
Prakash Marakwar,
resident of at Post : Mul,
Tah. Mul, Dist. Chandrapur,
(Original non-applicant no.2). ... Respondents.
Shri D. N. Kukday, Advocate for appellant/Insurance Company.
::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 :::
236-FA-235-06 2/8
CORAM : DR (SMT) SHALINI PHANSALKAR-JOSHI, J.
DATE : JULY 14, 2017 Oral Judgment :
This appeal is preferred by the Insurance company of the offending vehicle which is held jointly and severally liable for payment of compensation amount of Rs.5,99,940/- by Motor Accident Claims Tribunal, Chandrapur vide its judgment and order dated 02/11/04 in C. P. No.142 of 2001.
Brief facts of appeal can be stated as follows :
2] On 11/09/2001 at about 5.30 pm, deceased Nishant Pandey along with one Raju Maroti Bhagat was proceeding on his motorcycle bearing No.MH-34-G-964 from village Mul to Chandrapur. At that time one truck bearing No.MTG 9952 driven by respondent No.4 and owned by respondent No.5 came in high speed in rash and negligent manner and gave dash to the motorcycle. As a result of it, deceased sustained several injuries and succumbed to those injuries in the Government Hospital at Chandrapur. 3] At that time deceased was of 30 years age. He was unmarried and was carrying on Travels business. He was having four Travel buses. He was earning more than Rs.20,000/- per month. On account of his death, respondent Nos.1 and 2, his parents and respondent No.3 his sister have lost ::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 ::: 236-FA-235-06 3/8 their financial support. Hence they filed claim petition before the Tribunal seeking compensation of Rs.22,00,000/- from the appellant and respondent Nos.4 and 5.
4] This Petition came to be resisted by the appellant. Respondent Nos.4 and 5 did not appear though duly served with notice. 5] Appellant herein has raised three defences. The first being that the driver of the truck was not having valid and effective driving license. Secondly, the income which is quoted by the claimants was on higher side and there was no reason to grant a compensation which was claimed and which was exorbitant. Thirdly, it was submitted that the motor cycle was also involved in the accident but its owner and Insurance company of the Motor-cycle were not joined as party respondent and therefore claim petition was bad for non-joinder of necessary parties.
6] On the respective pleadings of the parties, the Tribunal framed three issues for its consideration and held that as the accident took place due to the fault of truck driver, the claim cannot be said to be bad for non-joinder of necessary parties. On the basis of evidence adduced before it, the Tribunal held that the deceased was doing travel business and hence his income can be taken to be Rs.5000/- per month. After deducting 1/3rd ::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 ::: 236-FA-235-06 4/8 amount towards expenses of the deceased, Tribunal awarded compensation of Rs.5,99,940/- with interest at the rate of Rs.9% p.a. from the date of filing the petition till realization of the amount.
7] This judgment of the Tribunal is challenged in this appeal by learned counsel for the appellant on three counts. First, it is submitted that though a specific plea was raised in the written statement that the driver of the offending vehicle-truck was not holding valid driving licence, the Tribunal has not framed even issue to that effect nor is there any discussion in the entire judgment.
Secondly, it is submitted that in absence of any evidence about the income of the deceased and the Tribunal itself disbelieved that the income cited i.e. 20,000/- per month, it was not proper on the part of the Tribunal to consider the the income of the deceased as Rs.5000/- per month. It is also urged that as the deceased was unmarried, 50% of the amount should have been deducted towards his personal expenses and appropriate multiplier should have been applied, considering the age of the parents of the deceased which was on higher side.
Thus, according to the learned counsel for appellant on these three grounds, interference is warranted in the impugned judgment and order of the Tribunal.
::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 ::: 236-FA-235-06 5/8 8] Per contra, learned counsel for the respondent-claimants has supported the impugned judgment by submitting that though the burden was on the appellant to prove that the driver of the offending vehicle was not having valid and effective license, no evidence was led to that effect. Secondly, he submitted that the amount of compensation awarded by the Tribunal, as regards financial dependency is not fair. Moreover, the Tribunal has not awarded any compensation towards additional heads of love and affection, loss of estate and funeral charges and that amount also needs to be added to the compensation awarded by the Tribunal.
9] On these rival submissions advanced by learned counsel for both the parties, the first and foremost issue which arises for my consideration is whether the order passed by the Tribunal holding the appellant-Insurance Company jointly and severally liable to pay the amount of compensation to the respondent needs to be interfered with? It also needs to be considered whether the amount of compensation awarded by the Tribunal calls for any interference ?
10] As regards the first point for consideration, it is true that in paragraph 5 of its written statement, the appellant has clearly raised a plea that the driver of the truck was not holding a valid driving license and hence there was breach of terms and conditions of the policy, hence appellant ::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 ::: 236-FA-235-06 6/8 cannot be held liable to indemnify the owner. It is also true that the Tribunal has not framed any issue to that effect nor discussed this aspect in its entire judgment. However, as rightly submitted by the learned counsel for the respondent, the burden to prove that the driver was not having the valid and effective license was on the appellant and if the Tribunal has not framed an issue to that effect, at least appellant should have done this exercise of bringing that fact to the notice of the Tribunal and also lead evidence to that effect. However there is not a single suggestion in cross examination of any of the witness to show that this plea was taken forward by the appellant Insurance Company. In such situation, if the appellant has not pursued the plea which is taken in written statement to it logical conclusion, on that count, no interference is warranted in the judgment of the Tribunal, especially sans any evidence to prove that the driver was not having valid and effective license.
11] About the income of the deceased, it is deposed by witness No.1 Rajkumari Pandey, the mother of the deceased that he was running the business of travels in the name and style of Gayatri Travels. He was earning Rs.20,000/- per month. He was paying amount of Rs.13,000/- per month to the financer. No doubt, in her cross examination she has stated that four mini buses were in their name and her deceased son alone was looking after the said business. However, she has also admitted that her deceased son ::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 ::: 236-FA-235-06 7/8 was not paying income-tax and she has not filed any documents to show that her deceased son was earning Rs.20,000/- per month. She has also not produced any documentary proof to show that they were having four travel buses.
12] Moreover, she has examined one witness by name Deepak Dixit to prove the business and income of the deceased, and according to his evidence, deceased owned four buses for the purposes of business of travels. Certificate Exhibit-34 is proved by this witness. However, as rightly held by the Tribunal, that though though his evidence proves the fact that deceased was doing such business of travels, his evidence could not prove that the deceased was earning Rs.20,000/- per month from the said business. Hence after having regard to this evidence on record, in my considered opinion, the Tribunal has rightly held that taking into consideration the nature of such family business, it can safely be accepted that deceased was earning Rs.5000/- per month.
13] The Tribunal has then deducted 1/3rd of the said amount towards his personal expenses. However considering that the deceased was unmarried, 50% of the said amount is required to be deducted towards his personal expenses. Similarly, the Tribunal applied the multiplier of 15, taking into consideration the age of the deceased as 30 years at the time of ::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 ::: 236-FA-235-06 8/8 accident. However having regard to the fact that deceased was unmarried, for determination of appropriate multiplier, the age of his parents needs to be taken into consideration as the same is on higher side. At the time of filing petition, the age of respondent No.1- mother was 50 years, whereas the age of the father was 56 years. Therefore taking their average age as between 52-56, the appropriate multiplier would be '10'. Accordingly the financial loss or dependency would be 2500 x 12 x 10 = 3,00,000/-. 14] The Tribunal has however not awarded any amount towards additional heads of loss of love and affection, loss of estate and funeral expenses. Taking into consideration the recent judgment of Apex Court in case of Rajesh vs Rajbir Singh (2013) 9 SCC 54, it has to be held that respondent Nos.1 and 2 parents of the deceased are entitled to pay compensation of Rs.1,00,000/- each and Rs.75,000/- to respondent No.2 sister for loss of love and affection and loss of estate and Rs.25,000/- towards funeral charges. Thus, total amount comes to Rs.6,00,000/-. As the appellant has deposited the entire amount in the Court in the year 2006 itself and it is also withdrawn by the respondents/claimants, now nothing remains due to the respondents.
As a result, appeal stands dismissed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 27/07/2017 ::: Downloaded on - 28/08/2017 10:13:50 :::