Bombay High Court
Oriental Insurance Co. Ltd vs Babulal S/O Chunilal Somani on 2 April, 2014
Author: M. T. Joshi
Bench: M. T. Joshi
(1) F.A. 168-1999-JUDGMENT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 168 OF 1999
Oriental Insurance Co. Ltd.,
(Through its Divisional Manager,
Aurangabad Division, Inder Prakash,
Adalat Road, Aurangabad,
Authorised signatory of the
Company) Appellant
(Orig. Resp. No.3)
VERSUS
1. Babulal S/o Chunilal Somani,
Age 71 years, Occu.: Agri.
2. Sow. Rukhamanibai w/o Babulal
Somani, Age : 65 years,
Occu.: Household
Both R/o C/o Murlidhar Babulal
Somani, Thorat Niwas, Kachiwada,
Aurangabad
(Ori. Claimants 1 & 2 respectively)
3. Kamdhenu Magasvargiya Milk Producers
Sahakari Society Ltd., Gandhili
Tq. & Dist. Aurangabad
4. Mr. Dharmaji G. Dabhade,
Age Adult, Occu.: Driver,
R/o Milindnagar,
Near MIDC Rly Station,
Aurangabad
(Orig. resp.1 & 2 respectively) Respondents
.....
Mr. Dhananjay Deshpande, Advocate for the Appellant.
Mr. A.P. Bhandari, Advocate for Respondent nos.1 and 2.
None present for respondent no.4 though served.
Appeal dismissed as against respondent no.3 vide
Registrar's Court's order dated 13/6/2006.
.....
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(2) F.A. 168-1999-JUDGMENT
CORAM : M. T. JOSHI, J.
DATED : 2ND APRIL, 2014
ORAL JUDGMENT :
1. Heard both sides.
2. Aggrieved by the direction to pay compensation in a Motor Accident Claim Petition, the original respondent no.3 i.e. the insurer of the truck has preferred the present appeal.
3. Present respondent nos.1 and 2 i.e. the parents of the deceased Santoshkumar had filed the claim petition. They pleaded that on 10/2/1995 while deceased Santoshkumar was proceeding by his scooter bearing no.MH-20-G-4742 to Nawabpura area from CIDCO by Jalna Road in Aurangabad city, at that time, near Seven Hill "T" point, a goods truck bearing registration no. MRL-2007 gave dash to the said scooter. The accident had occurred due to the high speed of the truck as the truck driver i.e. the present ::: Downloaded on - 15/04/2014 22:28:27 ::: (3) F.A. 168-1999-JUDGMENT respondent no.4-Dharmaji was driving the truck in rash and negligent manner.
4. As regards the quantum of compensation, the claimants submitted that the deceased was only 25 years old at the time of his untimely death. He was initially working with M/s. Vishnu Vijay Packages Pvt. Ltd. as an Accountant and thereafter he was given promotion as Accounts Officer and he was drawing salary of Rs.55000/-
per year. Besides the salary, he also used to get bonus and other benefits. Besides this, he was also maintaining accounts for several individuals and from that source, he was getting Rs.30,000/- per year. Thus, his total income was Rs.85,000/- per year. He was spending an amount of Rs.15,000/- per year for himself and was keeping the remaining amount for his family and the family was benefited to the tune of Rs.70,000/- per year. The petitioners were dependent upon the earning of the deceased. The deceased would have given the benefit of his ::: Downloaded on - 15/04/2014 22:28:27 ::: (4) F.A. 168-1999-JUDGMENT earning to the parents atleast for a period of 15-20 years and in the circumstances, the monetary loss of Rs.7 Lakh was claimed by applying multiplier of 20 years to the loss of Rs.70,000/- per year.
5. The truck driver as well as the owner remained absent in the proceedings. The present appellant i.e. respondent no.3 contested the petition. It was submitted that during the period of accident, one side of the road was closed for repairs and the the traffic was permitted only from one side i.e. from the southern side of the road. Therefore, though the truck was proceeding from this lane, it cannot be said that the truck was from the wrong side. It was therefore submitted that the accident had not occurred due to any rash or negligent driving of the truck.
As regards the compensation, all the pleadings made by the claimants were denied. It ::: Downloaded on - 15/04/2014 22:28:27 ::: (5) F.A. 168-1999-JUDGMENT was also submitted that as parents themselves had pleaded that they were agriculturists and were not dependent on the deceased, no compensation can be paid to them.
6. Before the learned Member, certified copy of the FIR, panchanama of spot of occurrence and copy of cover note was pressed into service. No oral evidence on the occurrence of the accident was led by any of the parties.
On the basis of the recitals in the complaint, as well as the certified copy of the panchanam of the spot of occurrence, the learned Tribunal came to the conclusion that though the entire traffic was moving from one side of the road, it was still the duty of the truck driver to be cautious while driving the truck from his side and, therefore, it was held that the accident had occurred due to the rash and negligent driving of the truck.
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7. As regards the quantum of the compensation, the claimants have examined one Mahesh Deshpande, an employee of the firm where the deceased was serving. He deposed that the deceased was a Accounts Clerk and was getting salary of Rs.3900/- per month and after deductions, his net salary was Rs.3622/- per month. The certificate in this regard was proved at Exhibit 41. Besides this, leave travel allowance, medical allowance and bonus was considered and the witness stated that the deceased used to get around Rs.74,000/- to Rs.75,000/- per annum.
8. The learned Tribunal came to the conclusion that the deceased was contributing around Rs.900/- per month for each of the petitioners i.e. Rs.1800/- per month for both of them. The yearly contribution was therefore held at Rs.10,800/- and the multiplier of 5 was applied in case of claimant no.1 i.e. the father and multiplier of 7 was applied in case of mother ::: Downloaded on - 15/04/2014 22:28:27 ::: (7) F.A. 168-1999-JUDGMENT i.e. claimant no.2. Besides this pecuniary damages, on the head of non-pecuniary damages on account of mental agony, shock, loss of association, love and affection, an amount of Rs.
25,000/- was granted. An amount of Rs.2000/-
towards the funeral expenses, Rs.2500/- for loss of estate was granted and thus, the total compensation was arrived at Rs.1,59,100/- with interest at the rate of 12% per annum.
9. Mr. Deshpande, learned counsel for the appellant submits that the contents of the FIR would show that while the truck was proceeding from the lane, in view of the closure of one of the lane for maintenance, the scooter itself came from the wrong side in this limited lane and dashed to the truck. He therefore submits that the learned Member ought not have come to the conclusion that the accident had occurred due to the rash and negligent driving of the truck.
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10. Mr. Deshpande further submits that pleadings in the petition that both the petitioners are agriculturists would show that there was no loss of dependency at all. He further points towards the admission in the cross-examination of claimant no.1 i.e. respondent no.1-Babulal. Respondent no.1 has stated in his cross-examination that all his married children are separate from him. Deceased used to reside with one of his married sister Alka. He also used to reside with Alka.
Further, there was already partition of the agricultural land between children of the claimants. Even the agricultural land was allotted to the deceased and the respondent no.1 i.e. the claimant himself used to look after the land of the deceased at village Agar Nandur.
11. On the basis of these admissions, Mr. Deshpande submits that there is even no loss of contribution in the family expenses and hence he wanted that the learned Member ought to have ::: Downloaded on - 15/04/2014 22:28:27 ::: (9) F.A. 168-1999-JUDGMENT dismissed the petition.
12. On the other hand, Mr. Bhandari, learned counsel for respondent nos.1 and 2 i.e. the original claimants submits that though the contents in the FIR would show that one of the lane was closed for maintenance, yet finding that the scooter is coming from the opposite side, it was the duty of the truck driver to stop the truck when the scooter was near it. However, the truck driver proceeded ahead and the accident had occurred. He submits that evidence on record would show that the deceased was a young boy.
Some of his brothers were already married. The deceased as well as claimants i.e. his parents used to reside with Alka i.e. the daughter of the claimants. It does not mean that daughter Alka was maintaining all of them. On the other hand, he submits that the evidence of the claimant would show that the deceased used to contribute in the family expenses and in the circumstances, he justifies the award.
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13. On the basis of this material, following points arise for my determination:-
I) Whether the accident had occurred merely due to the rash and negligent driving of the truck ?
II) Whether any amount of compensation is required to be awarded, if yes, to what extent ?
My finding to point no. (I) is in the "affirmative", to point no. (II) is "no". The appeal is therefore dismissed for the reasons to follow.
R E A S O N S
14. None of the parties had led any direct evidence regarding the manner and details of the accident. While the insurer relies on the contents of the FIR that one lane was closed, the claimants are also relying over the same recitals as well as the recitals in the panchanama.
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15. Mr. Deshpande relies on the ratio of "Smt. Ushakiran Shridhar Shinde & ors. V. Arunkumar Kisanlal Kalal & ors." 2001(4) ALL MR
21. In that case, the learned Single Judge of this Court has held that when the plea of contributory negligence is based on panchanama, it cannot be looked into even if it is a document exhibited on record, unless its contents are proved. It was further observed that proving the panchanama in evidence is not a substitute for proving the contents of the panchanama.
16. As already pointed out, both the sides have relied on the certified copies of the documents i.e. certified copy of the FIR and panchanama of spot of occurrence. Though, the panchanama cannot be said to be proved as declared by the learned Single Judge, yet in order to find out as to what was the situation on the spot and to come to a certain conclusion, by applying the principle of Res Ipsa Loquitur, the ::: Downloaded on - 15/04/2014 22:28:27 ::: (12) F.A. 168-1999-JUDGMENT contents of the FIR as well as panchanama can very well be looked into.
17. It is to be noted that the Accident Claims Tribunals have been established specially for dealing with the accidents arising out of the use of motor vehicle. Under Section 166 of the Motor Vehicles Act, even an application for compensation is not a necessity. Sub-Section 4 of Section 166 of the Motor Vehicles Act which is added in the year 1994, provides that even a report of the accident forwarded by the Police Officer under Sub-Section 6 of Section 158 of the Motor Vehicles Act is required to be treated as an application for compensation under the Act.
Sub-Section 1 of Section 169 of the Motor Vehicles Act declares that in holding the enquiry, the Claims Tribunals may follow such summary procedure, as it thinks fit, subject to any rules that may be prescribed.
::: Downloaded on - 15/04/2014 22:28:27 :::(13) F.A. 168-1999-JUDGMENT In turn, Rule 275 of the Maharashtra Motor Vehicles Rules, 1989 begins with the term "Without prejudice to the provisions of section 169", the Claims Tribunal may exercise all or any of the powers vested in a civil Court.
Thereafter, certain provisions in the Code of Civil Procedure which can be used as tool by the Tribunal are listed.
18. In that view of the matter, there is no hitch in placing reliance in the contents of the certified copy of the FIR and the panchanama of the spot of occurrence, which in fact, is relied on by both the sides to buttress their respective rival contentions.
19. In view of this fact, if we take into consideration the contents of the certified copy of the FIR together with certified copy of the panchanama, it would become clear that one lane of the road was closed for the vehicular traffic.
The traffic was therefore permitted from one lane ::: Downloaded on - 15/04/2014 22:28:27 ::: (14) F.A. 168-1999-JUDGMENT only. In the circumstances, it cannot be said that the truck was being driven from wrong side.
However, at the same time, the scooter, a Light Motor Vehicle was coming from the opposite side.
In the circumstances, it was expected that the truck should have let the scooter pass. In that view of the matter, when the learned Member has taken into consideration all this factual situation, it still came to the conclusion that the accident had occurred solely due to the rash and negligent driving of the truck. There is no need to interfere in the said reasoning.
20. As regards the quantum of the compensation, Mr. Deshpande vehemently submits that there is no loss of dependency. While in the pleadings itself, it is specified that the claimants are agriculturists, in the cross examination of the claimant-father, it has come on record that the deceased used to reside with his married sister and even one agricultural land was allotted to the deceased and the claimants ::: Downloaded on - 15/04/2014 22:28:27 ::: (15) F.A. 168-1999-JUDGMENT had their agricultural land. It is however to be noted that compensation is not granted only for the loss of dependency but in view of the provisions of the Fatal Accidents Act, 1855, also for recovery of damages, upon death of the deceased resulting from such accident. No doubt, in the Statement of Objects of this Act, it is stated that the Fatal Accidents Act confers statutory right to recover compensation by dependents for loss of dependency due to the death of a person caused by actionable wrong.
Provisions of Section 1-A of the Fatal Accidents Act, 1855 however provides as under:-
"1-A Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong -- Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.::: Downloaded on - 15/04/2014 22:28:27 :::
(16) F.A. 168-1999-JUDGMENT Evey such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of executor, administrator or representative of the person deceased;
and in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before- mentioned parties, or any of them in such shares as the Court by its judgment or decree shall direct." (Emphasis supplied) Thus any loss resulting from death is recoverable for the tortious act of causing the death.
21. In that view of the matter, when the deceased was unmarried and was residing together with the parents under the shelter of his married sister and when the claimant no.1 i.e. the father specifically pleaded and deposed that there was loss in the contribution in the family expenses due to the death of the earning son, it cannot be said that there was no "loss resulting from" the ::: Downloaded on - 15/04/2014 22:28:27 ::: (17) F.A. 168-1999-JUDGMENT death of the deceased.
22. This takes us to find out as to what is the just compensation. In the present case, the deceased was 25 years old, there is no evidence on record as detailed supra, showing that he was earning Rs.3917/- per month including the bonus.
Since deceased was a bachelor, 50% of his income will have to be deducted towards the personal expenses. In the circumstances, rounding the monthly income, the loss of income to the present claimants would be Rs.2000/- per month i.e. Rs.24,000/- per year.
Considering the fact that the claimants were within the age group of 58-60 at the time of the untimely death of the deceased, multiplier of 9 would be applicable in view of the ratio in the case of "Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another" (2009) 6 SCC 121, which is more than the amount granted by the learned Tribunal even without adverting to the ::: Downloaded on - 15/04/2014 22:28:27 ::: (18) F.A. 168-1999-JUDGMENT damages granted on the non-pecuniary head.
23. In that view of the matter, there is no force in the appeal. The appeal is therefore dismissed without any order as to costs.
Consequently, Civil Application no. 2631 of 2011 seeking early hearing of the appeal also stands disposed of.
[ M. T. JOSHI ] JUDGE arp/ ::: Downloaded on - 15/04/2014 22:28:27 :::