High Court
Legal Reasoning
(1) FA-566-2013 & anr (1).odt(This order is corrected as per speaking to minute order dated 12.07.2024.)IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADFIRST APPEAL NO.566 OF 2013United India Insurance Company Ltd., Through its Divisional Office, Divisional Manager, Ahmednagar...Appellant(Orig. Respdt. No.3)Versus1.Smt. Sangeeta W/o Annasaheb Shermale,Age: 25 years, Occu.: Household, R/o: Samnapur Tq. Sangamneir Dist: Ahmednagar2.Vijay S/o Annasaheb Shermale,Age: 7 yrs. Occu: NILR/o: Samnapur Tq. SangamneirDist: Ahmednagar3.Ku. Sakshi D/o Annasaheb Shermale,Age 4 yrs. Occu: NILR/o: Samnapur Tq. SangamneirDist: Ahmednagar (Orig. Claimant Nos.1 to 3)Resp Nos. 2 & 3 are minors & U/g of resp no. 1 who is real Mother of them. R/o as above & summons be served throughRespondent no. 14.Lakshman S/o Hanumant SodnarAge: major Occu: driverR/o: Samnapur Tq. SangamneirDist: Ahmednagar(Orig. Respdt. No.1)5.Ayyaz Khan Ahmad Khan Pathan,Age: major Occu: business.R/o: Naikwadpura Tq. SangamneirDist: Ahmednagar(Orig. Respdt. No.2)6.Irfan Gani Bagwan,Age: major Occu: BusinessR/o: house no. 1763/64,Bagwanpura, Tq. SangamneirDist. Ahmednagar(Orig. Respdt. No.4)
Legal Reasoning
(2) FA-566-2013 & anr (1).odtANDFIRST APPEAL NO.1549 OF 20141.Smt. Sangeeta W/O Annasaheb Shermale,Aged 25 years, Occu.- Household,2.Vijay Annasaheb Shermale,Aged 7 years, Occu- student,3.Miss. Sakshi Annasaheb Shermale,Aged 4 years, Occu- Nil.Appellants No 2 & 3 are minors represented by Appellant No 1, their real mother. Appellants No 1 to 3 R/O- At & PO- Samnapur, Tal- Sangamner, Dist- Ahmednagar...Appellants(Orig. Claimants)Versus1.United India Insurance Company Ltd;through its Divisional Manager, Division Office, Ahmednagar.(Orig. Respdt. No.3)2.Laxman Hanumanta Sodnar,Aged- Major, Occu- Driver, R/o- Samnapur, Tal- Sangamner, Dist- Ahmednagar..(Orig. Respdt. No.1)3.Ayyaz Khan Ahmed Khan Pathan,Aged- Major, Occu- Business, R/o- Naikwadpura, PO & Tal- Sangamner Dist- Ahmednagar.(Orig. Respdt. No.2)4.Irfan Gani Bagwan,Aged- Major, Occu- Business, R/o- Bagvanpura, PO & Tal- Sangamner, Dist- Ahmednagar.(Orig. Respdt. No.4) …Mr. S. V. Kulkarni, Advocate for the Appellant in FA/566/2013.Mr. V. Y. Bhide, Advocate for the Appellants in FA/1549/2014.Mr. V. Y. Bhide, Advocate for Respondent Nos.1 to 3.Mr. R. L. Kute, Advocate for Respondent Nos.5 and 6.… CORAM : S. G. CHAPALGAONKAR, J.RESERVED ON : 18th APRIL, 2024.PRONOUNCED ON: 06th MAY, 2024. (3) FA-566-2013 & anr (1).odtJUDGMENT:- 1.These appeals are filed under Section 173 of the MotorVehicle Act impugning judgment and award dated 26.09.2012passed by the Motor Accident Claim Tribunal, Sangamner, DistrictAhmednagar in M.A.C.P. No.80/2010 under Section 166 of theMotor Vehicle Act.2.With the consent of the parties, matter is taken up for finalhearing.3.The appellant-insurer filed First Appeal No.566/2013aggrieved by the liability to pay compensation fastened againsthim, whereas claimants are aggrieved by inadequate compensationassessed by the Tribunal.4.The brief facts of the case can be narrated as under:On 02.09.2007, late Annasaheb Shermale was traveling inTempo bearing Registration No.MH-17-A-9186 from Ahmednagartowards Samnapur. While Tempo reached at village Nimgaonjali,the driver lost control over the vehicle. Resultantly, it dashed tothe road side tree. Inmates of the vehicle suffered injuries. LateAnnasaheb succumbed to the injuries suffered in accident. Theclaimants/dependents of the deceased lodged M.A.C.P. No.80/2010before the Tribunal raising claim for compensation of Rs.7,00,000/-invoking provisions of Section 166 of the Motor Vehicle Act 1988,contending that the deceased had been to the market in theoffending Tempo for selling Cauliflower. After selling the goods, inreturn journey fatal accident occurred. Late Annasaheb wasearning his livelihood from agriculture and milk business andmaintaining family. His earning is estimated to Rs.1,20,000/- toRs.1,25,000/- per annum. Since the claimants/dependents have lost (4) FA-566-2013 & anr (1).odtearning hand, they raised claim for compensation alleging rash andnegligent driving on the part of the Tempo driver. They assertsthat the vehicle was owned by respondent no.2 and insured withrespondent no.3 at the time of accident.5.The claim was opposed by the respondents by filingrespective written statements. It is not disputed that LateAnnasaheb lost his life because of accident involving offendingvehicle. The owner and driver refuted the claim denyingallegations of negligence on the part of the driver, whereas theappellant-insurer refuted the claim stating that deceased beinggratuitous passenger in goods carriage, the risk is not coveredunder the policy. They also asserts that the goods carriage wasused for carrying passengers on hire and reward basis, thatamounts to breach of terms and conditions of the policy which isvalid defence to avoid liability in terms of Section 149(2) of theMotor Vehicle Act.6.The Tribunal recorded evidence of the parties. The claimantsrelied upon the evidence of CW-1-Sangeeta. The insurer reliedupon the evidence of Mr. Shirish Kulkarni at Exhibit-63. TheTribunal after considering the evidence on record concluded thatthe deceased died on account of accident in question and assessedthe compensation to the tune of Rs.4,00,000/- payable to theclaimants by insured and exonerated insurer, accepting its defenceof breach of policy. However, directed insurer to satisfy the awardat first instance and recover the compensation amount fromrespondent nos.1, 2 and 4 by filing execution.7.Mr. Kulkarni, learned Advocate appearing for the appellant-insurer submits that the deceased was traveling as gratuitouspassenger in goods carriage. The risk of such person is not covered (5) FA-566-2013 & anr (1).odtunder the policy. The deceased cannot be termed as third partywithin the meaning of Section 147 of the Motor Vehicles Act.Therefore, the Tribunal ought to have exonerated the insurerwithout putting further liability to satisfy the award at firstinstance and then recover the compensation amount.8.Per contra, Mr. Bhide, learned Advocate appearing for theoriginal claimants submits that the Tribunal has rejected thedefence of the insurer that the deceased was gratuitous passenger.The insurer is exonerated accepting defence in terms of Section149(2) of the Motor Vehicle Act i.e. use of vehicle for carryingpassenger on hire and reward basis, contrary to the permit. Hewould further submits that the Tribunal has passed inadequateaward. Late Annasaheb had dual income from agriculture as wellas milk business. The Tribunal considered notional income @ ofRs.3000/- per month but nothing is added towards future prospects.The paltry sum is awarded towards non-pecuniary heads.Therefore, he seeks enhanced compensation.9.Mr. Kute, learned Advocate appearing for respondent nos.5and 6 supports award as passed.10.Having considered submissions advanced on behalf of therespective parties and after going through the record andproceedings, it can be gathered that there is no dispute regardingaccidental death of Annasaheb arising out of use of offendingTempo bearing Registration No.MH-17-A-9186. The accident wasreported to the police station and offence was registered againstthe Tempo driver on the basis of the statement given by LaxmanShermale, who was one of the occupant of the offending vehicle atthe time of accident. He stated that Tempo was hired by farmersfor transportation of Cauliflower to Ahmednagar market and after (6) FA-566-2013 & anr (1).odtunloading the goods while they were in return journey, theaccident in question took place. Late Annasaheb suffered fatalinjuries in the accident. The claimants have pleaded same case inthe claim petition. The evidence of claimant no.1-Sangeeta hasbeen recorded before the Tribunal, in which she stipulates thatLate Annasaheb was returning in the vehicle after selling goods inthe market alongwith empty bags and nets. It appears that shehas been cross-examined on behalf of the insurer. She denied thesuggestion that no goods were carried in the vehicle at the time ofaccident. However, she admits that the passengers were travelingon payment of fare. The Tribunal accepted the defence of theinsurer that the vehicle was used for carrying passengers on hireand reward basis. Consequently, fastened the liability to pay thecompensation on owner and driver of the offending vehicle.However, directed the insurer to satisfy the award at first instanceand recover the compensation amount from other respondents.11.Mr. Kulkarni, learned Advocate appearing for the InsuranceCompany submits that the vehicle in question was registered andinsured as goods carriage. It has carrying capacity of only twopersons. Even assuming contentions of the claimants as true andcorrect, only inference can be drawn that deceased was gratuitouspassenger.12.Although, prima facie, such contention appears to be correct,the fact remains that the vehicle in question was hired for carriageof goods. The deceased and others had boarded in the vehiclealongwith goods at inception of journey towards AhmednagarMarket. In return journey, the accident took place. The possibilitythat the empty bags and nets as stated by the CW-1-Sangeeta werecarried in the vehicle cannot be ruled out. In this background, Mr.Bhide, learned Advocate appearing for the claimants relies upon (7) FA-566-2013 & anr (1).odtthe observations of the High Court of Himachal Pradesh in case ofNational Insurance Company Ltd. Vs. Kamla & Ors.1,particularly in paragraph no.10, which states as under:“The allegations made by the petitioners in the petition as wellas in the evidence were that the deceased had gone afterhiring the truck with his vegetable and was coming in thesame vehicle when the accident took place. The learnedCounsel for the claimants/respondent Nos. 1 to 4 had reliedupon the decision of Hon'ble Punjab and Haryana High Courtin National Insurance Company Ltd. v. Urmila & Ors., 2008ACJ 1381, wherein it was observed that a passenger wasreturning after selling his goods when the vehicle turnedturtle due to rash and negligent driving. Insurance Companyseeks to avoid its liability on the ground that the deceased wasno longer owner of the goods as he had sold them off. It wasobserved that the deceased had hired the vehicle fortransporting his animals for selling and was returning in thesame vehicle. It was held that the deceased was not anunauthorised/gratuitous passenger in the vehicle till hereached the place from where he had hired the vehicle.”13.Similarly he relies upon the observations of the DivisionBench of Punjab and Haryana High Court in case of NationalInsurance Company Limited Vs. Urmila and Others2 inparagraph no.11, which states as under:“Here, in the instant case, it is well established on the file thaton the day of occurrence of the accident, Dilbag Singhdeceased, after selling his animals, was returning to hisvillage from where he had hired the aforesaid offendingvehicle. In this view of the matter, we are of the consideredopinion that Dilbag Singh (deceased) cannot be termed to bean unauthorized/gratuitous passenger in the insured vehicletilll he reaches the place from where he had hired the insuredvehicle.”14.Similarly he relies upon the observations of Division Bench ofthis Court in case of Balasaheb Shamrao Salunkhe (Dead)through Lilavati B. Salunkhe & Ors. Vs. Laxmibai12011 ACJ 1550.22008 ACJ 1381. (8) FA-566-2013 & anr (1).odtYashwant Jadhav & Ors.3, particularly in paragraph no.12,which states as under:“In Nasibdar Suba Fakir's case, the Division Bench hasalready held that Rule 118 of the Bombay Motor VehiclesRules allows the carriage of passengers of goods vehicle incertain circumstances. It has been held that there is noprohibition by virtue of anything contained in Rule 118against the hirer of a goods vehicle from travelling in thesame goods vehicle. In the circumstances, the Tribunal oughtto have held that the deceased was travelling with the goodsin the hired vehicle as the owner of goods which were beingtransported in it. No evidence was placed on record by theInsurance Company to controvert this fact and, therefore, theInsurance Company was equally liable to pay compensation.”15.If aforesaid observations considered in reference to the fact ofthe present case, it is difficult to hold that the deceased wastraveling as the gratuitous passenger. On the other hand, it willhave to be accepted that he was traveling as owner of the goodsbecause at inception of his journey he boarded Tempo in thecapacity of owner of goods as he had hired the vehicle fortransportation of Cauliflower towards market and possiblyreturning in the same vehicle alongwith empty bags and nets. Nospecific evidence is brought on record on behalf of the insurer toshow that vehicle was absolutely empty and no goods were carriedwhen the accident took place. The theory put forth by theclaimants is supported by the contents of the FIR. The Tribunalhas, therefore, recorded the finding that the deceased cannot betreated as gratuitous passenger, but since claimant no.1-Sangeetaadmitted in her evidence that passengers were carried on hire andreward basis, the Tribunal accepted the defence of the insurer interms of Section 149(2) of the Motor Vehicle Act. Consequently,the Tribunal passed an award in the nature of pay and recovery.No fault can be found in the approach of the Tribunal.32010 ACJ 2555. (9) FA-566-2013 & anr (1).odt16.The claimants have filed First Appeal No.1549/2014 raisingthe claim for enhanced compensation. It is apparent that theTribunal assumed notional income of the deceased to the tune ofRs.3000/- per month in absence of any material to draw inferenceregarding actual income of the deceased. The claimant no.1-Sangeeta admits that the deceased had only 1 acre agriculture landand she do not possesses evidence regarding milk business asalleged. It is trite that in case of victim’s income from theagriculture, only loss of supervision can only be considered to hisdependants. In the present case, the Tribunal has considered lossof earning. However, nothing is added towards loss of supervision.The deceased himself was cultivating lands, therefore, in suchcases, the loss of labour that deceased was putting into cultivationof the land as well as loss of supervision would be admissible. TheTribunal ought to have considered the dual loss on account of boththe counts to the tune of Rs.4000/- per month, looking to thevaluation of money in the year 2007. The Tribunal ought to haveadded 40% towards future prospects. Since, there were threedependents, the 1/3rd amount needs to be deducted towardspersonal and living expenses of the deceased. The claimants wouldbe entitled for enhanced compensation for loss of consortium, lossof estate and funeral expenses. Since the Tribunal has awardedpaltry sum under those counts. Looking to the age of deceased as30 years 7 months, multiplier of ‘16’ would apply. Applying theaforesaid principles of assessment, the compensation can bereassessed in tabular form as follows:Sr.No.HeadsAmount (Rs.)1Annual Income (Rs.4000 x 12)Rs.48,000/-2Addition of 40% towards future prospects(Rs.48,000/- + Rs.19,200/-) =Rs.67,200/-31/3rd deduction towards personal and livingRs.44,800/- (10) FA-566-2013 & anr(1).odtexpenses. Rs.67,200 / 3 = Rs.22,400/-67,200 – 22,400/-4Applying multiplierof ‘16’ (Rs. 44,800 x 16)Rs.7,16,800/-5Rs.25,000/- each towards loss of consortium(Rs.25,000/- x 3) Rs.75,000/-6Rs.15,000/- towards funeral expensesRs.15,000/-7Rs.5000/- towards loss of estateRs.5000/-TOTALRs.8,11,800/-17.In view of the findings and assessment of thecompensation, the Award passed by the Tribunal needs to bemodified. Hence, following order: -ORDERi.First Appeal No.566/2013 filed by the Insurer is dismissed.ii.First Appeal No.1549/2014 filed by the claimants is partlyallowed.iii.The judgment and award dated 26.09.2012 passed by theMotor Accident Claim Tribunal, Sangamner, District Ahmednagarin M.A.C.P. No.80/2010 is modified.iv.The Claim Petition under Section 166 of the Motor VehicleAct is allowed against original respondent nos.1, 2 and 4. Theclaimants shall be entitled for compensation of Rs.8,11,800/- (Rs.Eight Lakhs Eleven Thousand Eight Hundred only) from originalrespondent nos.1, 2 and 4 jointly and severely inclusive of amountof ‘NFL’ alongwith interest at the rate of 7.5% p.a. from the date offiling of the claim petition till realization of the amount. However,respondent no.3-Insurer shall satisfy the award at the firstinstance and proceed to recover the amount so paid from originalrespondent nos.1, 2 and 4 by filing execution of this award. (11) FA-566-2013 & anr(1).odtv.On deposit of the compensation amount, it be disbursed tothe claimants in proportion of the apportionment made by theTribunal in Clause No.3(A) and (B) of the original award dated26.09.2012.vi.The amount, if any, deposited by the Insurer be transmittedto the Tribunal, which shall be disbursed to claimants alongwithenhanced compensation amount under this award.vii.Award be drawn accordingly on payment of deficit court fee.(S. G. CHAPALGAONKAR)JUDGEDevendra/May-2024