Bombay High Court
United India Insurance Co. Ltd vs Soniya Maroti Aghav And Ors on 29 April, 2025
2025:BHC-AUG:12402
FA-4380-2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4380 OF 2017
United India Insurance Company Ltd.
Through its Branch Manager, Dayawan Complex,
Station Road, Parbhani,
Through its Authorized Signatory / Branch Manager,
Divisional Office, New Osmanpura,
Aurangabad. ... Appellant
[Orig. Respondent No.2]
VERSUS
1. Soniya W/o. Maroti Aghav,
Age: 26 years, Occu: Household,
2. Navnath S/o. Maroti Aghav,
Age: 7 years, Occu: Education,
U/G of mother i.e. petitioner no.1 Soniya Aghav
3. Khanderao S/o. Kishanrao Aghav,
Age: 52 years, Occu: Agriculture,
4. Muktabai W/o. Khanderao Aghav,
Age: 49 years, Occu: Household,
5. Kasabai W/o. Kishanrao Aghav,
Age: 73 years, Occu: Nil,
[Amendment carried out as per Hon'ble
Courts order dt. 5/07/2024 and 11/10/2024]
All R/o: Belkheda, Taluka Jintur,
District Parbhani,
6. Laxman S/o. Shendfad Ukharde,
Age: Major, Occu. Business,
R/o. Tembhurni, Taluka, Jafrabad,
District Jalna. ... Respondents
[Res. Nos.1 to 5 - Orig. Claimants
Res. No. 6 - Orig. Res. No.1]
.....
Mr. Suraj R. Bagal, Advocate for Appellant - Insurance Company,
Mr. S. S. Thombre, Advocate for Respondent Nos.1 to 4,
Mr. Abhishek M. Hajare, Advocate for Respondent No.6.
.....
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FA-4380-2017.odt
CORAM : NEERAJ P. DHOTE, J.
Reserved On : 08.04.2025
Pronounced On : 29.04.2025
JUDGMENT :
1. This is the First Appeal preferred under Section 173 of the Motor Vehicles Act, 1988 [hereinafter referred to as the 'M.V. Act'] by the Appellant - Insurance Company against the Judgment and Order / Award dated 28/12/2015, passed by the learned Motor Accident Claims Tribunal, Parbhani [hereinafter referred to as the 'learned Tribunal'], in Motor Accident Claim Petition No.338/2012 [hereinafter referred to as the 'MACP'], awarding the compensation of Rs.1,01,47,500/- [One Crore One Lakh Forty Seven Thousand Five Hundred Only] with interest @ 7.5 % per annum from the date of MACP till realization of the compensation amount against the Insurance Company and the Owner of motor vehicle.
2. The facts giving rise to the present Appeal are as under :-
[a] The Claimants filed the above referred MACP contending that, they were Widow, Son, Mother, Father and Grandmother, respectively of Maroti Khanderao Aghav [hereinafter referred to as the 'Deceased']. They were resident of Belkheda, Taluka Jintur, District Parbhani. On 28/05/2012 around
08.:00 p.m., when the Deceased was returning to the village from Jintur on a motorcycle bearing No.MH-22-L-8010 and came on Jintur - Jalna road, near L.I.C Office, Jintur, a Tempo bearing No.MH-04-BG-3572, which was coming from the opposite direction 2 FA-4380-2017.odt in a high speed and in rash and negligent manner, suddenly crossed the road and came on wrong side and gave dash to the motorcycle of the Deceased. The Deceased suffered severe injuries and became unconscious. The Deceased was shifted to the Hospital, however, he succumbed to the injuries. The Postmortem was done. The Report was lodged by the Brother [Govind Aghav] of Deceased with the Jintur Police Station against the Driver of the said Tempo and Crime No.90/2012 came to be registered for the offence punishable under Sections 304 [A], 279 and 338 of the Indian Penal Code, 1860 [hereinafter referred to as 'I.P.C.'] .
[b] The Claimants were dependents on the Deceased. The Deceased was working as Assistant Teacher in Primary Ashram School at Wazar [Bk.], Taluka Jintur, District Parbhani on monthly salary of Rs.26,217/-, after deduction of Rs.200/- towards the Professional Tax. The Deceased was having the Income by working as an Agent of Life Insurance Corporation [hereinafter referred to as 'L.I.C.'] and used to also cultivate the agricultural land and earn Rs.9,42,900/- per year. The Deceased was 25 years old at the time of Accidental death and had bright future. They were entitled to the total compensation of Rs.1,29,44,150/- from the Owner and Insurer of the said Tempo, jointly and severally. [c] The MACP was resisted by the Owner and Insurer of the said Tempo by filing their Written Statement at Exhibits - 18 and 19, respectively. They denied that, the motor vehicular Accident was due to rash and negligent driving of the said Tempo. The Deceased had contributed to the Accident. According to the said Tempo Owner, the said Tempo was insured with the Insurance Company at the time of Accident and, therefore, the Insurance Company was liable to pay the compensation. The Insurance Company denied that, the said Tempo was insured with the 3 FA-4380-2017.odt Insurance Company. Both the Respondents in the MACP, prayed for dismissal of the MACP.
[d] On the basis of pleadings of the parties, the learned Tribunal framed the following issues below Exhibit - 21 :-
Issues "1- Whether the claimants have proved that Maroti S/o Khanderao Aghav died in the vehicular Accident between motorcycle bearing registration No. MH-22/L-8010 and tempo bearing No. MH-04/BG-3572 due to rash and negligent driving of tempo driver ?
2- Whether the respondent No.2 proves that the driver of tempo was not holding valid and effective driving licence and committed breach of terms and conditions of insurance policy ?
3- Whether the claimants are entitled to compensation amount? If yes, from whom and to what extent ?"
[e] In support of the MACP, Claimant No.1 i.e. Widow of Deceased, examined herself by filing Evidence Affidavit at Exhibit - 24. The Claimants examined Witness No.2 below Exhibit
- 25 to prove the Income from salary of the Deceased. The Claimants examined Witness No.3 below Exhibit - 44 as the eyewitness to the Accident. All the witnesses examined by the Claimants were cross-examined on behalf of the Owner and Insurer of the said Tempo. The Claimants brought on record the Police Papers, Driving Licence of the Tempo Driver, Registration Certificate, Certificate of Insurance of the said Tempo, Licence issued by the Insurance Regulatory and Development Authority in the name of Deceased as the Insurance Agent, the copies of Acknowledgment of Income Tax Returns [For short 'ITR Acknowledgment'] of the Deceased and the Salary Certificate of the Deceased. The endorsement on the lists of documents, filed by the Claimants at Exhibits - 4, 27 and 46 shows that, except the Salary Certificate of the Deceased and receipts issued by the Fruit 4 FA-4380-2017.odt Merchants, all the documents brought on record by the Claimants were admitted by the Insurance Company of the said Tempo. The Owner of the said Tempo admitted the documents mentioned below Exhibit - 4. No evidence was led by the Owner and Insurer of the said Tempo.
3. It is submitted by the learned Advocate for the Appellant - pInsurance Company that, the Accident took place due to contributory negligence of the Deceased. The Driver of the said Tempo was not joined as the party Respondent in the MACP. The Driver of the said Tempo was not examined to prove the findings of negligence, which is must. The Income of Deceased shown by the Claimants was disputed. In the First Information Report [For short 'F.I.R.'], it was mentioned that, the Deceased ran a JCB Office and the aspect of Job of Deceased as Teacher was introduced later to exaggerate the claim. The Salary Certificate format was prepared to claim high compensation. No Appointment Order and Approval Order in respect of the Employment of Deceased were brought on record. Being the Teacher, the Salary must have been paid through Bank Account and no Bank Account details were brought on record. Hence, the Salary Certificate be discarded. The deduction should have been 1/3rd from the Income of Deceased, the addition of 50% towards Future Income was incorrect, as there was no proof of permanent Employment of the Deceased. There was no proof of agricultural Income. 30% deduction should have been 5 FA-4380-2017.odt made from the Income of Deceased. Only the Income shown in the I.T.Rs should have been considered. The Father of Deceased was an agriculturist, therefore, there was no question of Deceased cultivating the land. In support of his contentions, he relied on the Judgments, which would be considered in the later part of this Judgment. Considering the evidence available on record, the Appeal of Insurance Company be allowed.
4. It is submitted by the learned Advocate for the Claimants that, there was sufficient proof on record in support of the MACP. The Involvement of the said Tempo in the Accident was proved by examining the eyewitness. The Accident was due to the negligence of the Driver of the said Tempo. The Income of Deceased was sufficiently proved. To show the Income from Salary, the Headmaster of the School was examined. The Deceased was also having Income by working as the L.I.C Agent. The 7/12 extracts brought on record show the name of Deceased. The receipts on record shows the Income from the agricultural land. The ITR Acknowledgment shows the total Income of the Deceased. The learned Tribunal has rightly considered the evidence available on record and allowed the MACP. Hence, the Appeal be dismissed.
5. The learned Advocate for Respondent No.6 i.e. Owner of the said Tempo, advanced no submissions.
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6. After hearing both the sides, the following points arise for my determination in this Appeal ;
[i] Whether non-impleadment of the Driver of the said Tempo as the party Respondent to the MACP would be fatal to the Claimants and whether the impugned Judgment and Award vitiates ;
[ii] Whether there was contributory negligence on the part of Deceased in the motor vehicular Accident ;
[iii] Whether the compensation determined by the learned Tribunal was proper ;
7. As regards Point No.[i] is concerned, it is the contention of the learned Advocate the Appellant - Insurance Company that, the Driver of the said Tempo, who was the necessary party, was not impleaded as the party in the MACP. In support of his contention, he relied on the following Judgments of this Court :-
[a] United India Insurance Co. Ltd. Vs. Ratna Popat Patil and Another ; 2011 [03] Mh.L.J 582;
[b] New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and Others ; 2010 [2] Mh.L.J 177;
7.1 Both the Judgments are in the Appeals filed against the Judgments and Awards passed by the learned Tribunal under the M.V. Act. In first Judgment, one of the question was whether after compliance of Rule of 260 of the Maharashtra Motor Vehicles Rules, 1989 [hereinafter referred to as the 'Rules of 1989'], will it be necessary to examine the Driver of the offending vehicle as a witness and it is observed that, the answer lies in the wish of the parties and the parties to decide in the facts and 7 FA-4380-2017.odt circumstance of the case in that respect whether to examine the Driver as a witness to prove negligence or to prove breach of policy or any defect under Section 149 [2] of the said Act, since it would be a question of burden of proof . This Court in the said Judgment observed that, the Driver of the offending vehicle was not impleaded as the party to the Claim Petition and the adverse findings in respect of his negligence was recorded behind his back and in his absence by the Tribunal by the impugned Judgment and Award, and therefore, same would be vitiated and, therefore, on the said ground itself, the Appeal was partly allowed and the matter was remanded back to the Tribunal to follow the mandate of the above referred Rule.
7.2 In second Judgment, one of the contention raised in the Appeal by the Insurance Company was that, the Driver of the offending vehicle was not joined as the party to the Claim Petition and in his absence, the Tribunal could not have recorded the finding of negligence on the part of the said Driver and the Claim Petition was therefore liable to be dismissed on this sole ground.
This Court, after considering the Judgments cited by the parties, recorded the findings as :-
"(i) Meena Varial's Case decided by the Apex Court does not lay down a law that driver of offending vehicle is necessary party in all cases and in his absence, the Judgment and Award shall vitiate.
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FA-4380-2017.odt
(ii) In an unreported Judgment of this Court in First Appeal No.3839/2008 (National Insurance Company Ltd., V/s Vachista) decided on 14.09.2009, it has not been laid down that driver of the offending vehicle was not necessary party, in case of claim petition under Motor Vehicles Act.
(iii) In Machindranath's case the contention that, the driver of the offending vehicle was necessary party in a claim petition and in his absence the entire judgment and award would vitiate, has been rejected.
(iv) In view of the Judgment of the Apex Court in Machindranath's case, the driver of the offending vehicle would be a proper party or he should at least be examined, as witness on the allegations of rash and negligent driving on his part and without his involvement, no adverse finding on negligence can be made against him and if any such finding is recorded, same would vitiate the proceedings.
(v) No decree or award can be made personally against the driver of the offending vehicle unless he is involved in a claim petition either as party or at least as witness.
(vi) If there are specific rules involving the driver in a claim petition in particular manner, then the matter would be governed by the said rules and its compliance will have to be shown.
(vii) The requirement of Rule 260(1) and (2) of the Maharashtra Motor Vehicles Rules, 1989 is mandatory and the Tribunal shall send to the owner or driver of the vehicle or both, involved in the Accident and its insurer, a copy of the application and annexures thereto, together with notice of the date on which the parties shall enter their appearance.
(viii) The service of notice shall be effected on owner, driver and insurer of the offending vehicle in question, as the case may be, by way of personal service, through the bailiff or by Registered Post A/D or both, as the Tribunal may deem fit and proper.
(ix) If the driver or owner or insurer of the offending vehicle does not respond to the notice so issued and duly served, the Tribunal may proceed exparte and pass an award against any of them or all of them and the proceedings shall not vitiate for not calling a driver and examining him as witness."
8. Coming to the case on hand, on perusal of the Written Statement filed by the Appellant - Insurance Company goes to show 9 FA-4380-2017.odt that, there are no pleadings regarding non-joinder of the Driver of the said Tempo. In absence of pleadings regarding non-joinder of Driver in the MACP, there was no occasion for the learned Tribunal to frame the issue in respect of non-joinder of Driver of the said Tempo. It is for the first time in the Appeal, the issue of non-joinder of the Driver as party Respondent in the MACP has been raised. In this regard, profitable reference can be made to the decision of this Court in National Insurance Company Limited Vs. Ashok Rajaram Bambulkar and Others ; 2022 ACJ 2188, which was an Appeal under the M.V. Act from the decision of the MACP for compensation in respect of death from the motor vehicular Accident, wherein, one of the point for consideration was whether non-impleadment of the Driver of the offending vehicle or absence of notice to the Driver under Rule 260 of the Rules of 1989, vitiated the proceedings before the Tribunal. This Court elaborately considered the said issue in the light of the above referred Judgment in New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and Others [Supra], and the Judgments in Machindranath Kernath Kasar Vs. D. S. Mylarappa and Others ; AIR 2008 SCC 2545 and New India Insurance Company Limited Vs. Sitaram Devidayal Jaiswal and Others ; [2012] ACJ 2647, and rejected the contention of the Appellants therein that, non-impleadment of the Driver of the offending car or absence of notice to the Driver, under 10 FA-4380-2017.odt Rule 260 of the Rules of 1989 vitiated the proceedings before the Tribunal. The relevant Paragraphs for the said Judgment of this Court are reproduced below :-
17. The nature of the proceeding for compensation for death or injury, caused in a motor vehicle Accident, and the liability of the owner and driver of the offending vehicle came up for consideration before the Supreme Court in the case of Machindranath Kernath Kasar vs. D. S. Mylarappa and Others ;
[2008] 13 Supreme Court Cases 198. After adverting to the object of the enactment of the MV Act, and the various provisions of the Act, Supreme Court expounded the legal position in the following words:
"28. When a damage is caused by an act of negligence on the part of a person, the said person is primarily held to be liable for payment of damages. The owner of the vehicle would be liable as he has permitted the use thereof. To that effect only under the Motor Vehicles Act, both driver and owner would be jointly liable. This, however, would not mean that they are joint tortfeasers in the strict sense of the term. There exists a distinction between the liability of the owner of a vehicle which was used in commission of the Accident and that of the driver for whose negligence the Accident was caused, but the same would not mean that the owner and the driver are joint tortfeasers in the sense as it is ordinarily understood.
29. The Karnataka Rules, therefore, were required to be construed having regard to the appropriate interpretative principles applicable thereto. Common law principles were therefor required to be kept in mind. In this case, we are not required to lay down a law that even in absence of any rule, impleadment of the driver would be imperative.
30. It is however, of some interest to note the provisions of Section 168 of the Motor Vehicles Act. In terms of this aforementioned provision, the Tribunal is mandatorily required to specify the amount which shall be paid by the owner or driver of the vehicle involved in the Accident or by or any of them. As it is imperative on the part of the Tribunal to specify the amount payable inter alia by the driver of the vehicle, a fortiori he should be impleaded as a party in the proceeding. He may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint tortfeaser.
31. Appellant not only made averments as regards absence of negligence on his part; he made specific allegations against the driver of the truck. The driver of the truck alone would have been competent to depose. In a given case, like the present one, the owner of the truck may not defend the action at all keeping in view the fact that the vehicle was an insured one. There are some decisions of this Court, where even a plea has been raised that the insured company would not be an aggrieved person in such an extent although such a contention has been negatived by this Court.
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32. The principles of natural justice demand that a person must be given an opportunity to defend his action. (emphasis supplied)
18. The necessity of impleading the driver as a party to the proceeding is indicated in the aforesaid pronouncement. However, the Supreme Court has categorically observed, in clear and explicit terms, that the driver of the offending vehicle was not a necessary party in a claim petition so as to entail the consequence of vitiating the judgment and award, where a driver has not been impleaded as party respondent. The import of the aforesaid judgment of the Supreme Court is that, in a given case, the driver of the offending vehicle may be a proper party or, in the least, he ought to be examined as a witness before an adverse finding on negligence can be made against him.
19. In the case of Sitaram Jaiswal (supra) this Court adverted to the aforesaid pronouncement in the case of Machindranath Kasar (supra) and the judgment of this Court in the case of Suman Pawar (supra) and also noted the text of Rule 260 of the Rules, 1989 extracted above. Thereafter, the legal position was culled out in paragraph Nos. 10 and 11 as under :
10. Thus, the law is that the claimant while filing a claim application is under no obligation to ensure that all necessary and proper parties are impleaded as opponents to the claim petition.
Considering the nature of the proceedings, the responsibility is of the Tribunal to ensure that the notices are issued to all the necessary parties. This power can be exercised by the Tribunal at any stage of the proceedings.
11. It is a matter of common knowledge that while defending a claim petition, diverse defences are raised fa-1142-2019.doc in the written statements by the owners and especially the Insurers. However, in many cases, we find that all the defences pleaded are not pressed into service at the time of final hearing. Whenever a contention is pressed into service by any of the opponents to the claim petition or the persons to whom the notice of the claim petition is issued under Rule 260 that the driver of a vehicle is a necessary party, the Tribunal is under an obligation to examine the said contention and if found correct, issue a notice to the driver. It is obvious that if such contention is not pressed by the party to whom the notice is served, the said party cannot be allowed to raise the said contention for the first time in the appeal. A claimant cannot be allowed to suffer as he is under no obligation to implead any party as the opponent to the claim petition. In such a case, if the driver is aggrieved by the adverse finding recorded against him by the award of the Tribunal, he has a remedy of preferring an appeal against the award after obtaining a leave of the Appellate Court. If neither the owner nor the Insurer raises a contention before the Tribunal regarding the non-joinder of the driver, it is not open for them to contend in the appeal that the driver was a necessary party and that the award is vitiated because of non-joinder of the driver. The observations made by this Court in the case of New India Asurance Company Ltd. Vs. Suman Bhaskar Pawar and others, 2010 (2) Mh L J 177 in clause (iv) of paragraph No.16 will apply only when specific defence of non-joinder of the driver is pressed into service either by the 12 FA-4380-2017.odt owner or by the Insurer. If they fail to raise the said contention, the same is not available for them in the appeal. Needless to say that the same will remain available to the driver who is not made party. As the law is that the responsibility of issuing the notice to the proper parties is entrusted to the Tribunal, if a contention regarding non-joinder is not raised, the claimant cannot be allowed to suffer on the ground that the Tribunal has failed to perform its duty. Even if a contention regarding non-joinder of driver is raised at the time of final hearing of a claim petition, if the said condition is correct, the Tribunal can issue notice to the driver at any stage. (emphasis supplied)
20. This Court has held in no uncertain terms that a claimant is under no obligation to ensure that necessary and proper parties are impleaded as opponent to the petition. Conversely, it is the obligation of the Tribunal to ensure that notice is issued to all the necessary parties. The Tribunal is empowered to do so at any stage of the proceeding. However, a claimant cannot be made to suffer the consequences of non-impleadment as the claimant is under no obligation to implead any party as the opponent to the claim petition. This Court has gone a step further to hold that even where the ground of non-joinder or no notice to the driver is raised in the written statement, the owner or the insurer cannot be permitted to draw mileage therefrom if the said ground was not effectively pursued."
9. In view of the above settled legal positions, the non- impleadment of the Driver of the aforesaid Tempo in the MACP preferred by the Claimants will not be fatal for the Claimants and the impugned Judgment and Award will not stand vitiated on that sole ground and, therefore, the first contention of the learned Advocate for the Appellant regarding non-impleadment of the Driver of the Tempo Driver melts down.
10. As regards the second contention of the learned Advocate for the Appellant in respect of contributory negligence by the Deceased is concerned, it would be necessary to scrutinize the evidence available on record. The Claimants claimed the compensation on account of death of their family members i..e Maroti Khanderao Aghav [Deceased] in the motor vehicular 13 FA-4380-2017.odt Accident due to rash and negligent driving of the said Tempo by its Driver. Claimant No.1, who was the Widow of Deceased, though examined herself as the Witness in support of the MACP candidly admitted in her cross-examination that, she was not the witness to the Accident. The Claimants examined Witness No.3 by name Laxman Babarao Budhawant as the eyewitness to the Accident. His evidence shows that, on 28/05/2012, when he had gone to an Automobile Shop situated at Jalna Road, Jintur for purchasing the battery around 7:30 p.m. and when he was present there, he witnessed the Accident between the said Tempo and the motorcycle of Deceased. According to him, the said Tempo was on wrong side of the road and was being driven in rash and negligent manner and gave dash to the motorcycle of Deceased, due to which, the Deceased suffered multiple injuries and Deceased was shifted to the Hospital. His cross-examination shows that, the Deceased was his relative and his statement was recorded by the Police after two [2] days, as he was under grief. His evidence finds corroboration by his previous statement recorded by the Police on 30/05/2012 in respect of the motor vehicular Accident.
10.1. Even if, for the sake of argument, the testimony of said eyewitness is discarded, there is no dispute on the aspect that, the Crime was registered against the Driver of the said Tempo with the Jintur Police Station in respect of the said Accident for rash 14 FA-4380-2017.odt and negligent driving of the vehicle. The Police Papers comprises of the Crime Details Form, Inquest, Statements of Witnesses, Postmortem Report etc. As noted above, all the Police Papers are admitted by the Appellant - Insurance Company and, therefore, it is clear that, the rash and negligent driving of the said Tempo, which resulted into the Accident and death of Deceased, is not in dispute. There is nothing even remotely to suggest that, the said Accident was due to contributory negligence of the Deceased. There can be no dispute on the aspect that, while deciding the MACP under the M.V. Act, the Police Papers can be looked into by the learned Tribunal /Court to determine the issue of negligence in the MACP. In these facts and circumstances of the case, no fault can be found with the answering of Issue No.1 in respect of negligent driving of the said Tempo and death of Deceased due to the said Accident, in the affirmative by the learned Tribunal.
11. As regards the third contention of the learned Advocate for the Appellant - Insurance Company in respect of the Income of Deceased, considered by the learned Tribunal, according to the Claimants, the Deceased was in the services as Assistant Teacher and used to receive monthly Salary of Rs.26,417/- per month and was earning Rs.1,14,000/- per year by doing the work of L.I.C. Agent and further was earning Rs.2,00,000/- per annum from the agricultural land and total Income of Deceased per year was more 15 FA-4380-2017.odt than [9] Nine Lakhs.
11.1 As regards the Income from the Salary is concerned, the Claimants examined Witness No.2 by name Gajanan Vithalrao Ghete below Exhibit - 25. His evidence shows that, he was a Headmaster of Primary Ashram School at Wazar [Bk] Taluka Jintur, District Parbhani and knew the Deceased. The Deceased was Arts Graduate and having B.Ed Degree and was in the services of the said School as Assistant Teacher and used to receive monthly Salary of Rs.26,217/- after deduction of Rs.200/- towards the Professional Tax. A Salary Certificate is brought on record in his evidence. Though in his cross-examination, it has come that, he brought the Muster Roll and the Original Record of the School showing the Salary of Deceased, except the Salary Certificate at Exhibit - 42, no document is brought on record in respect of service of the Deceased as the Assistant Teacher in the said School. Except the oral version of the said witness and Salary Certificate, there is no evidence to show the Income of Deceased from the Salary. There is no evidence as to when the Deceased was appointed as the Assistant Teacher and in what manner. The Appointment Order and Approval Order of his appointment are not available on record. Perusal of the said Salary Certificate shows that, it was a format and blank spaces were filled having a stamp of the Headmaster of the Primary Ashram School, Wazar, Taluka 16 FA-4380-2017.odt Jintur, District Parbhani. The said format appears to have been a ready made format from Hindustan Stores S. H. Road, Aurangabad, as is clear from the extreme upper right side of the Salary Certificate. It is strange, as to how the Salary Certificate of the School is having the stamp of the said store. Even the year shown below the date 10th June as appointment date, is not clear and appears to have been written in such a manner so as to keep oneself guessing. The Salary Certificate is reproduced below :- 17
FA-4380-2017.odt 11.2 In absence of any other proof in respect of the service and Income from the Salary of the Deceased, it is not possible to accept the evidence of this Witness No.2 and the said Salary Certificate. There is one more reason to discard the said evidence in respect of Income from the Salary and that is the First Information Report [FIR] in respect of the said Accident, which is lodged by non-other than the Brother of Deceased. In his Report to the Police, he stated that, the Deceased was running the JCB Office and the Accident took place when the Deceased was going on the motorcycle towards his JCB Office. There is no reference in the said Report that the Deceased was working as the Teacher. The only inference which can be drawn from the evidence available on record is that, the evidence in respect of the Employment and Income from Salary of the Deceased is neither concrete nor convincing and the same is, therefore, liable to be discarded and kept aside out of consideration for computing the compensation.
12. The other evidence in respect of Income of Deceased, are the copy of Licence issued by the Insurance Regulatory and Development Authority in the name of Deceased, as the Insurance Agent, the copy of Form No.16-A issued by the L.I.C., Nanded Division Office and Acknowledgments of I.T.R. The learned Advocate for the Appellant - Insurance Company relied on the Judgments in Malarvizhi and Ors. Vs. United India Insurance 18 FA-4380-2017.odt Company Limited and Anr. ; AIR 2020 SC 90, and in Shyamwati Sharma and Ors. Vs. Karam Singh and Ors. ; 2010 AIR SCW 4391, on the point that, wherever there are ITRs, the determination of annual Income must proceed on the basis of ITRs and the decision in the First Appeal towards deduction of 30% amount towards Income Tax was not interfered with. The Acknowledgments of ITRs at Exhibits - 38 to 40, are in the name of Deceased for the Assessment Years 2009 - 2010, 2010 - 2011 and 2012 - 2013 showing the total Income for the said years as Rs.35,315/-, 1,07,920/- and 1,13,998/-, respectively. The said three [3] Acknowledgments of the ITR show that, there was increase in the annual Income of the Deceased. Though the deduction towards Tax deducted at source [TDS] is shown in all the said three [3] acknowledgments as Rs.3,638/-, Rs.11,116/- and 11,400/-, the said Tax is shown to have been refunded. The reason may be that, the Income was not taxable. The last I.T.R Acknowledgment bears the stamp of the concerned Office of the Income Tax Department as 18/05/2012, which date is admittedly prior to the death of Deceased. This shows that, the Annual Income of the Deceased of the previous year before his death was Rs.1,13,998/- and this will have to be considered as Income of Deceased for computing the compensation. It is also the highest Income per annum if seen from all the I.T.R Acknowledgment. As observed earlier, the 19 FA-4380-2017.odt documents, which are admitted by the Appellant - Insurance Company, includes these acknowledgments of ITRs.
13. As regards the Income of Deceased from the agricultural operations is concerned, the Widow of Deceased, who was examined as Witness No.1, in her cross-examination admitted that, she had not produced on record the documents showing the agricultural Income. There are receipts brought on record by the Claimants issued by the Fruit Merchants showing supply of Water Melon and Orange. Perusal of the same, shows that, the first name of Deceased appears to be inserted subsequently, except in the receipts towards supply of Oranges. The said receipts, as is clear from Exhibit - 46, the list of documents, were not admitted by the Appellant - Insurance Company. True it is that, the 7/12 extracts are brought on record by the Claimants. The 7/12 extracts available on record show that, apart from the name of Deceased, there are other names also. This would only show that, the Deceased was an agriculturist and not his Income. There is one receipt of Maharashtra Cotton Growers Society showing supply of Cotton by the Deceased and an amount of Rs.35,000/- was remitted through Bank. This shows that, the Deceased must be getting some Income from Agriculture. In absence of any other document to show the Income from the agricultural operations, it would not be possible to include an imaginery figure as the agricultural Income 20 FA-4380-2017.odt of the Deceased. It is needless to state that, the Income from the agriculture alone is exempted from Tax. As the copies of I.T.Rs are not available on record, it is not possible to know whether the Income from agriculture was shown in the I.T.R with the Income from work as the L.I.C. Agent and the Income shown therein was inclusive of Income from agriculture. Thus, in absence of any documentary evidence, there is no question of considering an imaginery amount as the Income of the Deceased from the agricultural, in addition to the Income shown in the acknowledgments of the ITRs. On the basis of evidence on record, the per year Income of Deceased is considered as Rs.1,13,998/-
which is rounded off to Rs.1,14,000/-.
14. The other aspect is in respect of addition of Future Income. The learned Tribunal in the impugned Judgment has considered 50% towards addition in Future Prospects. When the evidence that, the Deceased was working as the Teacher is discarded and in absence of evidence that Deceased had a permannent Job, and was aged 25 years, the addition will have to be considered @ 40% of the established Income i.e. last annual Income shown in the acknowledgment of ITRs, being self employed, as per the Judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors. [2017] 16 SCC 680. 21
FA-4380-2017.odt
15. As regards the deduction towards Personal and Living Expenses is concerned, in Paragraph No.14 of the impugned Judgment, it seen that, the learned Tribunal deducted under the said head 1/4th from the Income of Deceased, whereas, in Paragraph No.16 of the impugned Judgment, the learned Tribunal held the Claimant No.5 - Kasabai not entitle for any compensation being the Grandmother of Deceased and also, Claimant No.3 - Khanderao, the Father of Deceased, who was an agriculturist, not entitle for the compensation by observing that, he cannot be said to be dependent on the Deceased. The learned Tribunal considered the Widow, Son and Mother of Deceased entitled for the compensation. On the basis of these observations, the contention of the learned Advocate for the Appellant - Insurance Company that, the deduction towards Personal and Living Expenses of the Deceased should have been 1/3rd, is well founded.
16. The learned Advocate for the Appellant - Insurance Company has cited the Judgment in K. Suresh Vs. New India Aussurance Company Limited and Anr. ; [2012] 12 SCC 274, on the aspect that, the amount of compensation should be Just and Proper and should not be a bonanza. In view of the above discussion based on the evidence available on record, the amount of compensation arrived at by the learned Tribunal needs interference and calls for re-calculated as under :-
22
FA-4380-2017.odt Nos. Particulars Amount A Total income per year 1,14,000/-
B 40% addition towards Future 1,14,000 + 45,600 1,59,600/-
Prospects C 1/3rd deduction towards Personal 1,59,600 ÷ 3 53,200/-
and Living Expenses
1,59,600 - 53,200 1,06,400/-
D After applying Multiplier of 18 1,06,400 x 18 19,15,200/-
E Add : Funeral Expenses 15,000/-
F Add : Loss of Estate 15,000/-
G Add: Rs. 40,000/- each towards 40,000 x 4 1,60,000/-
Spousal, Filial and Parental
Consortium
H Total Compensation payable to Claimants 21,05,200/-
17. In light of the above discussion, the Appeal deserves to be partly allowed with the following order :-
ORDER [a] The Appeal is partly allowed.
[b] The amount of total compensation arrived at by the learned Tribunal in the impugned Judgment is modified as Rs.21,05,200/- [Twenty One Lakhs Five Thousand Two Hundred Only]. The said amount of compensation be apportioned between the Widow, Son and the Mother of the Deceased as :-
1. Widow - 12,00,000/-
2. Son - 8,00,000/-
3. Mother - 1,05,200/-
[c] The amount of Son be kept in Fixed Deposit, if he has not attained the majority. If the Son has attained majority, the amount of compensation be disbursed to the said three 23 FA-4380-2017.odt [3] Claimants i.e. Widow, Son and Mother along with interest and costs of MACP.
[d] Appeal stands disposed off accordingly.
[NEERAJ P. DHOTE, J.]
Sameer/April-2025
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 29/04/2025 14:35:06 24