High Court
Facts
FA-1802- 2019-final.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1802 OF 2019The New India Assurance Company Ltd.A Subsidiary of the General InsuranceCorporation of India and a company Incorporated under the Companies Acthaving one of its Divisional office at Adalat Road, AurangabadThrough its Manager (Legal Hub) &Authorized signatoryShri Sanjeev s/o Ramrao GaisamudreAge 52 yrs, occu. Service atThe New India Assurance Co.,D.O. No.1 Adalat Road, Aurangabad … Appellant (Rg.Resp.No.3.)VERSUS1)Namabai widow of Dasu Rathod Age 45 yrs, occ-household,r/o Umbarkheda, Tq. Kannad, Dist. Aurangabad2)Alasing s/o Dasu Rathod,age 23 years,Occu. Labour, r/o as above 3)Udaysing s/o Dasu Rathod,age: 17 years, Occ. Nil,U/g claimant No.1,4)Ishwar s/o Dasu Rathod,age 15 years,U/g claimant No.1,5)Kailas s/o Dasu Rathod,age 13 years,U/g claimant No.1, 1 of 11 (( 2 ))FA-1802- 2019-final6)Sitabai d/o Dasu Rathod,age 11 years,U/g claimant No.1,7)Gitabai d/o Dasu Rathod,age 9 years,U/g claimant No.1,8)Sanjay s/o Mahadu Kshirsagar,age major, occupation – business,r/o Dhorkin, Tq. Paithan,Dist. Aurangabad9)Shaikh Shamim s/o Shaikh ShabedAge: 30 years, Occupation – Driver,r/o Nagapur, Tq. Kannad… Respondents(R.Nos. 1 to 7 : Org.Clmt.R.Nos. 8 & 9: Org.R.Nos.1 & 2).…Mr. A. B. Kadethankar, Advocate for Appellant Mr. Y. B. Bolkar, Advocate for .…WITHCROSS OBJECTION NO. 37 OF 2021IN FIRST APPEAL NO. 1802 OF 20191)Namabai w/o Dasu RathodAge: 60 years, Occu,: Household 2)Alasing S/o Dasu Rathod,Age 35 years, Occu. Labour, 3)Udaysing S/o Dasu Rathod,Age: 27 years, Occ. Nil,4)Ishwar S/o Dasu Rathod,Age 25 years, Occu: Nil,5)Kailas S/o Dasu Rathod,Age 22 years, Occu: Education 2 of 11
Legal Reasoning
(( 8 ))FA-1802- 2019-final(i) Sarla Verma and others Vs. Delhi Transport Corporation andanother – (2009) 6 SCC 121;(ii)Reshma Kumari and others Vs. Madan Mohan and another –(2013) 9 SCC 65;(iii)Magma General Insurance Company Limited Vs. Nanu RamAlias Chuhru Ram and others – (2018) 18 SCC 130;(iv)Janabai Wd/o Dinkarrao Ghorpade and others Vs. ICICILambord Insurance Company Limited – (2022) 10 SCC 512;(v)Kirti and another Vs. Oriental Insurance Company Limited –(2021) 2 SCC 166;(vi)Sidram Vs. Divisional Manager, United India InsuranceCompany Limited and another – (2023) 3 SCC 439.10.Having regard to submissions canvassed on behalf boththe sides, I have gone through the record. It is not disputed that, on15.10.2007, the deceased Dasu, the husband of claimant No.1 andfather of claimant Nos. 2 to 7, was travelling in vehicle bearingRegistration No. MH-20-T-2464 and the present respondent No.9 wasplying the said vehicle. It is an admitted fact that, the presentrespondent No.8 is the owner of offending vehicle, which was dulyinsured with the present appellant Insurance Company. The accidentoccurred on 15.10.2007 during the existence of policy.11.After going through the evidence of the claimants, itprima facie appears that, accident took place due to negligence on thepart of respondent No.9 Driver and death of deceased caused due tosevere injury received in the accident. The claimants proved the F.I.R., 8 of 11 (( 9 ))FA-1802- 2019-finalspot panchanama Exh.25 and 26. As per F.I.R. and spot panchanama,three more persons were travelling in the offending vehicle includingthe deceased. The offence was registered as against respondent No.9driver. In the cross examination, the appellant insurance companytried to bring on record that, 7 to 8 passengers were travelling in themini-door/offending vehicle, which has met with an accident, butsaid suggestions denied by the claimants. 12.Needless to say that, merely the informant stated in theF.I.R. Exh.25 that, 7 to 8 persons were travelling, however, theinsurance company fail to solicit that 7 to 8 persons were traveling inthe offending vehicle at the time of accident. Though, theAppellant/Insurance Company filed W. S., and pleaded about breachof conditions of insurance policy, because 7 to 8 persons weretraveling in vehicle is breach of policy, but the appellant insurancecompany fail to examine any witness to prove the said defense.Therefore, merely raising defense in the written statement cannot besaid to proved automatically without corroborative piece of evidence.13.As per postmortem report Exh.27, death of deceased Dasucaused due to head injury and the accident is caused due to rash andnegligent driving on the part of respondent No. 9 driver. No doubt, 9 of 11 (( 10 ))FA-1802- 2019-finalthe claimants claimed that, the deceased was earning Rs.4,500/- permonth, but they fail to prove the income proof of the deceased. Onperusal of the impugned Award it appears that, the learned Member,M.A.C.T., has considered notional income of the deceased pertinent to2007, i.e. the year of accident. The claimants failed to producedocumentary evidence to prove age of the deceased. The learnedMember, considered the medical evidence available on record andheld that, the deceased was in between 50 to 54 years of age and asper Sarla Verma’s case (supra), the multiplier would be applicable‘11’ and ascertained compensation to the tune of Rs. 2,97,000/- andRs.35,000/- towards love and affection, Rs.5,000/- towards funeralexpenses and Rs.10,000/- towards loss of consortium. However, it issubmitted that, in the case of Pranay Sethi cited (supra), it was heldthat, entitlement of Rs.70,000/- on consortium head, namely, loss ofestate, loss of consortium and funeral expenses respectively should beRs.15,000/-, Rs.40,000/- and Rs.15,000/- =Rs.70,000/-. 14.In the case in hand, the learned Member, M.A.C.T., hasgranted Rs.35,000/- under the conventional heads, which is certainlycontrary to the view taken by the Hon’ble Supreme Court in PranaySethi’s case. Therefore, to my view, the claimants are entitled for 10 of 11 (( 11 ))FA-1802- 2019-finalenhanced compensation to the extent of Rs. 35,000/- only, withinterest in terms of the award from the date of award till itsrealization.15.In view of the above discussions, I do not find merit tointerfere with the findings recorded by the learned Member, hence,appeal is liable to be dismissed. However, the respondent Nos. 1 to 7/original claimants are entitled to receive enhanced compensation tothe extent of Rs.35,000/- with interest at the rate 7% p. a. from thedate of award till its realization.16.Accordingly, I proceed to pass the following order:- O R D E R (i)The First Appeal is hereby dismissed.(ii)Cross objection is partly allowed.(iii)The impugned judgment and award dated 21.09.2010passed by the learned Member, Motor Accident ClaimsTribunal, Aurangabad in M.A.C.P. No.193 of 2008, is herebypartly modified. The compensation granted under the headof conventional to the extent of Rs.35,000/- is herebyenhanced with interest at the rate of 7% p. a. from the dateof the award till its realization. (iv)The appellant - insurance company is hereby directed todeposit the said amount in this Court within a period ofeight weeks from today.(v)Decree be drawn accordingly. [ Y. G. KHOBRAGADE, J. ]SMS 11 of 11
Arguments
(( 3 ))FA-1802- 2019-final6)Sitabai D/o Dasu Rathod,Age 25 years, Occu: Education7)Gitabai D/o Dasu Rathod,Age 20 years, Occu: EducationAll R/o.: Umbarkheda, Tq. Kannad,District Aurangabad … Objection Petitioners (Orig. Claimants)VERSUS1.The New India Assurance Company Ltd.A Subsidiary of the General InsuranceCorporation of India and a company Incorporated under the Companies Acthaving one of its Divisional office at Adalat Road, AurangabadThrough its Manager (Legal Hub) &Authorized signatoryShri Sanjeev s/o Ramrao GaisamudreAge 57 yrs, occu. Service atThe New India Assurance Co.,D.O. No.1 Adalat Road, Aurangabad2.Sanjay s/o Mahadu Kshirsagar,Age major, Occupation – Business,r/o Dhorkin, Tq. Paithan,Dist. Aurangabad3.Shaikh Shamim s/o Shaikh ShabedAge: 35 years, Occupation – Driver,r/o Nagapur, Tq. KannadDistrict Aurangabad… Respondents.…Mr. Y. B. Bolkar, Advocate for Objection PetitionersMr. A. B. Kadethankar, Advocate for respondent No.1 .… 3 of 11 (( 4 ))FA-1802- 2019-finalCORAM: Y. G. KHOBRAGADE, J.DATE: 12 MARCH 2024PER COURT :- 1. The Appellant Insurance Company presented this appealunder Section 173 of the Motor Vehicles Act, 1988, against thejudgment and award dated 21.09.2010 passed by the learnedMember, Motor Accident Claims Tribunal, Aurangabad in M.A.C.P.No.193 of 2008 praying for quash and set aside the Award. TheRespondents/Original claimants have filed Cross Objection No. 37 OF2021 seeking enhancement compensation arising out of saidjudgment and award. Therefore, Appeal and Cross Objection takentogether. 2.The present appellant is the original respondent No.3 –Insurance Company and Respondent Nos. 1 to 7 are the originalclaimants, who are legal heirs of deceased Dasu Nanu Rathod, whosuccumbed due to severe injuries received in an accident occurred on15.10.2007. Respondent No.8/original Respondent No.8 is the ownerof vehicle. The Respondent No.9/original Respondent No.2, driver ofthe vehicle. 4 of 11 (( 5 ))FA-1802- 2019-final3.For the sake of brevity, hereinafter parties to presentappeal shall be referred in their original capacity as claimants andRespondents. 4.In nutshell claim of the claimants is that, on 15.10.2007,the deceased Dasu Nanu Rathod along with other villagers weretravelling in mini-door bearing registration No. MH-20-T-2464. Theywere going to Nagapur, Tq. Kannad for purchasing the fertilizers andwhen above said vehicle reached near the field of Shri Vithal Sapateat that time, the Respondent No.9 driver deluded the vehicle comingfrom opposite directions, due to which mini-door turtled anddeceased had received multiple injuries and he succumbed due toaccidental injuries while Hospitalization at Rural Hospital, Kannad.Accordingly, an F.I.R. bearing Crime No.103 of 2007 was registeredagainst the Respondent No.9. As, deceased died due to accidentalinjuries, therefore, the claimants/respondent Nos. 1 to 7 have filedM.A.C.P. No.193 of 2008 and thereby prayed for compensation to thetune of Rs.7,00,000/-. According to the claimants at the time ofaccident, the deceased was 47 years old and he was working as‘Mason’ and was drawing income of Rs.4,500/- per month. The 5 of 11 (( 6 ))FA-1802- 2019-finalrespondents’ have filed their respective written statement therebythey denied the claim of the claimants. 5.After conclusion of trial, the learned Member, MotorAccident Claims Tribunal has passed the impugned judgment andaward and granted compensation to the tune of Rs.3,47,000/-including ‘no fault liability’ and directed the respondents to pay thesaid amount jointly and severally to the claimants.6.Mr. A. B. Kadethankar, the learned Counsel appearing forthe Appellant/ Insurance Company in vehemence canvassed that, thesitting capacity of the offending vehicle was 3+1, however, at thetime of accident, more than 8 to 9 persons were travelling in theoffending vehicle. So also, the offending vehicle was insured underthe policy of passengers carrying commercial vehicle. But, at therelevant time, more person than the capacity were travelling ininsured vehicle. Therefore, there is breach of policy. Therefore, as perthe terms and conditions of the policy, the claimants are not entitledto receive the compensation as against the appellant InsuranceCompany. However, the learned Member, M.A.C.T., failed to considerthis material evidence and passed the impugned Judgment andAward. Therefore, prayed for quash and set aside the same. 6 of 11 (( 7 ))FA-1802- 2019-final7.Per contra, the original claimants have filed crossobjection and prayed for enhancement of compensation. The learnedcounsel appearing for the Respondents/Claimants submits that, thelearned Member, Motor Accident Claims Tribunal, Aurangabad haswrongly considered income of the deceased of Rs.3,000/- per month,though at the relevant time, the deceased was earning Rs.5,000/- permonth. Further, the learned Member, M.A.C.T. wrongly considereddependency, though all the claimants were dependent on the incomeof the deceased and due to sudden death of bread earner their family,whole family members are suffering from starvation, however, thisfactor not been considered. 8.The learned counsel for the Respondents/ Claimantsfurther argued that, the learned Member wrongly considered the ageof deceased without applying proper multiplier and granted meagreamount of compensation. So also, meagre amount of Rs.35,000/-granted under conventional head.9.In support of these submissions, the learned Counsel forrespondent Nos. 1 to 7/original claimants relied on followingJudgments:- 7 of 11