Bombay High Court
National Insurance Co. Ltd., Thr. ... vs Dilip S/O Tahalumal Kukreja And Others on 28 January, 2020
Author: M. G. Giratkar
Bench: M. G. Giratkar
fa 1283 & 1284.2019 judgment.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 1283 OF 2019
WITH
FIRST APPEAL NO. 1284 OF 2019
FIRST APPEAL NO. 1283 OF 2019
National Insurance Company Ltd.
Through its Manager, Chandrapur
Branch through Regional Manager,
Nagpur, Nagpur Regional Office,
5th Floor, Fidvi Tower, Mount Road,
Sadar, Nagpur ..... Appellant
.....Vs.....
1. Dilip S/o Tahalumal Kukreja,
Aged not known, Occu. not known,
R/o Kannamwar Ward, Desaiganj,
Tah. Desaiganj, Dist. Gadchiroli
2. Smt. Durga Wd/o Kishor Dighore,
Aged 37 years, Occu. Household,
3. Roshan S/o Kishor Dighore,
Aged 19 years, Occu. Education,
4. Ku. Diwya D/o Kishor Dighore,
Aged 17 years, Occu. Education,
Applicant no.4 being Minor
Through Natural Guardian, Mother
i.e. Respondent no.2,
5. Wasudev S/o Natthuji Dighore,
Aged 67 years, Occu. Nil,
6. Smt. Kusumbai W/o Wasudev Dighore,
Aged 57 years, Occu. Nil,
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fa 1283 & 1284.2019 judgment.odt
2
Respondent nos. 2 to 6 R/o Chapral (Soni),
Tah. Lakhandur, Dist. Bhandara
Tah. Sironcha, Dist. Gadchiroli ......... Respondents
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Ms. Anita Mategaonkar, Advocate for the appellant ,
Shri P.P. Pendke, Advocate for respondent nos. 2 to 6.
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WITH
FIRST APPEAL NO. 1284 OF 2019
National Insurance Company Ltd.
Through its Manager, Chandrapur
Branch through Regional Manager,
Nagpur, Nagpur Regional Office,
5th Floor, Fidvi Tower, Mount Road,
Sadar, Nagpur ..... Appellant
.....Vs.....
1. Dilip S/o Tahalumal Kukreja,
Aged not known, Occu. not known,
R/o Kannamwar Ward, Desaiganj,
Tah. Desaiganj, Dist. Gadchiroli
2. Smt. Vanita Wd/o Naresh Pohankar,
Aged 37 years, Occu. Household,
3. Praful S/o Naresh Pohankar,
Aged 20 years, Occu. Education,
4. Vishal S/o Naresh Pohankar,
Aged 16 years, Occu. Education,
Respondent no.4 being minor
through his Natural Guardian, Mother
i.e. Respondent no.2,
5. Dhanu S/o Tulshiram Pohankar,
Aged 67 years, Occu. Nil,
6. Pawrabai W/o Dhanuji Pohankar,
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fa 1283 & 1284.2019 judgment.odt
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Aged 57 years, Occu. Nil,
Respondent nos. 2 to 6 R/o Amgaon,
Tah. Desaiganj, Dist. Gadchiroli ......... Respondents
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Ms. Anita Mategaonkar, Advocate for the appellant
Shri P.P. Pendke, Advocate for respondent nos. 2 to 4
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CORAM : M. G. GIRATKAR, J.
Date : 28/01/2020
ORAL JUDGMENT
Heard learned Advocate Ms. Anita Mategaonkar for the appellant/Insurance Company and Shri P.P. Pendke, learned Advocate for respondents/claimants.
2. These appeals are arising out of same accident. Deceased Naresh and Kishor were travelling in offending vehicle Tata 909 bearing registration no. MH/33/4117. Both were working as a coolie in the said vehicle. Paddy bags were loaded in the said vehicle. The driver of the said vehicle drove rashly and negligently., therefore turned turtle. Both the coolies died in the accident. The legal heirs of deceased filed respective claim petitions before the Claim Tribunals.
3. The Claim Tribunal partly allowed the petitions and granted compensation to the claimants in both the claim petitions.
4. The present appeals are against the judgment of Claim Tribunal on the ground that driver was not having valid driving licence. The claimants ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 21:54:35 ::: fa 1283 & 1284.2019 judgment.odt 4 failed to prove the income of the deceased and, therefore, prayed to quash and set aside the impugned judgment.
5. Learned Advocate Ms. Anita Mategaonkar has submitted that driver was having licence to drive light motor vehicle. Learned Advocate Shri Pendke pointed out impugned judgment. In the impugned judgment para 30 the Claim Tribunal has elaborately discussed the definition of "light motor vehicle" under Section 2(21) of the Motor Vehicles Act. Para 30 of impugned judgment is reproduced below :
"30. The Learned counsel of claimants has pointed out from record that non-applicant No.1 has filed copy of driving licence of driver of non-applicant No.1 i.e. Nandkishor Gote. It is at Exh.50. It shows that it is relating to Light Motor Vehicle. Now question arises whether offending vehicle falls in the category of Light Motor Vehicle or not. In this context, definition of "Light Motor Vehicle"
(Sec. 2(21) of Motor Vehicle Act) is perused, then it will find that- it means a transport vehicle or omnibus the gross vehicle weight of eigher of which or a motor car or tractor or road roller, the unladen weight of any of which, does not exceed 7500 Kilograms. In present case in hand, certificate of Registration of offending vehicle reveals the unladen weight which is of 3670 kg. As such, it is below 7500 kg. Therefore, in this situation, it is clear that offending vehicle falls ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 21:54:35 ::: fa 1283 & 1284.2019 judgment.odt 5 in the category of Light Motor Vehicle. Consequently, it cannot be observed that driver of Non-applicant was not having effective and valid driving licence to drive offending vehicle at that relevant time.
Once it is observed that driver of offending vehicle was holding valid licence (Exh.50), therefore, no force remains in the argument of learned counsel of non-applicant No.2 that non- applicant No.1 has committed breach of Insurance Policy (Exh.42). Consequ3ently, citation on which he placed his reliance is of no use in effect for being established his defence, with due respect."
6. From the perusal of impugned judgment learned Claim Tribunal rightly recorded its finding holding that the driver of the offending vehicle was having valid driving licence. The weight of the offending vehicle was 3670 kg. and as per the definition of 'light motor vehicle" as defined under Section 2(21) of the Motor Vehicles Act, is 7500 kg. Therefore, it is clear that the offending vehicle was light motor vehicle. Driver was having licence to drive light motor vehicle. Therefore, it can not be said that the driver of offending vehicle was not having valid driving licence. Hence, there was no any breach of policy condition as submitted by the learned Advocate for the appellant.
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fa 1283 & 1284.2019 judgment.odt 6
7. Learned counsel has submitted that income of the deceased in both the claim petitions are not proved by the claimants. It is pertinent to note that in both claim petitions claimants have examined the owner of the offending vehicle. He has stated in his evidence that both deceased coolies were getting salary of Rs.9,000/- per month. Therefore, it can not be said that income is not proved by the claimants.
8. As per F.I.R., it is clear that both deceased persons were sitting in the offending vehicle as a coolie. They were working with the owner of the vehicle i.e. witness no.2. He has stated that he was paying Rs.9,000/- to both the coolies. Therefore, the income is rightly proved by the claimants. The standard of proof in the claim petitions is not like in criminal case. The proceeding under the Motor Vehicles Act is summary proceeding and, therefore, strict proof as required in a criminal law is not required. Therefore, it can not be said that the claimants not proved the income of the deceased.
9. As per the judgment in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, if the deceased were in age group of 40 and 50, the future prospect of 30% is to be added. Therefore, the Claim Tribunal rightly granted future prospect adding the income of the deceased and, therefore, there is no perversity and illegality in the impugned judgment.
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10. Shri Pendke, learned Counsel has pointed out decision in the case of The APRTC, rep. By its General Manager and Anr. vs. M. Ramadevi and Ors., 2008 AIR (SC) 1221. The Hon'ble Apex Court has held that "when the Claim Tribunal come to the conclusion that the claimants are entitled for more compensation then that can be granted to the claimants subject to payment of defecit court fee". In both Claim Petition Nos.10/2017 and 11/2017, the Claim Tribunal has come to the conclusion that claimants are entitled for compensation of Rs.15,88,750/- and Rs.14,87,500/-, but granted compensation of Rs. 8,00,000/- only on the ground that court fee was paid on that amount.
11. In view of the judgment of the Hon'ble Apex Court in the case of The APRTC, rep. By its General Manager and Anr. vs. M. Ramadevi and Ors., it was duty of the Claim Tribunal to grant whole amount of compensation arrived after calculation. The amount though is more than claimed, then also it can be granted subject to direction to the claimants to pay the deficit court fees. In that view of the matter appeals are dismissed. However Insurance Company is directed to pay amount of compensation of Rs.15,88,750/- to the claimants in Claim Petition No.10/2017 and Rs.14,87,500/- in Claim Petition No.11/2017. The claimants/respondent Nos. 2 to 6 in Claim Petition Nos.10/2017 and 11/2017 shall pay the deficit court fee. After paying the deficit court fee, the award/decree be passed in respect of amount of ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 21:54:35 ::: fa 1283 & 1284.2019 judgment.odt 8 compensation of Rs.15,88,750/- in Claim Petition No.10/2017 and Rs.14,87,500/- in Claim Petition No.11/2017.. The appellant/Insurance Company is directed to pay the balance amount of compensation with interest as directed by the Claim Tribunal.
JUDGE C.R. Khobragade ::: Uploaded on - 30/01/2020 ::: Downloaded on - 30/01/2020 21:54:35 :::