Bombay High Court
Case Details
FA2911-16.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 2911 OF 2016 HDFC ERGO General Insurance Co. Ltd., 6th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East), Mumbai 400 059 Through its Branch manager/ Authorized Signatory, first Floor, Renuka Complex, Nirala Bazar, Nageshwarwadi, Aurangabad ... Appellant (Orig. respondent No.2) VERSUS 1. Tukaram s/o Yashwant Wable Since died, through legal representatives 1-a. Yashwant s/o Kondaji wable, Deceased 1-b. Tulsabai w/o Yashwant Wable Age 72 years, Occu: Nil 1-c. Shantabai Yashwant Wable Age 43 years, Occu: Household 1-d. Swati Vikas Date, Age 29 years, Occu: Nil 1-e. Ujwala Tukaram Wable Age 27 years, Occu: Education 1-f. Rahul s/o Tukaram Wable, Age 25 years, Occu: Education 1-g. Sagar s/o Tukaram Wable, ... Respondents Age 23 years, Occu: Education All R/o Wasunde, Taluka Parner District Ahmednagar 2 Pandurang s/o Dadabhau Date Age 47 years, Occu: Business R/o At Post Wasunde, Taluka Parner District Ahmednagar (Nos. 1 to 1-g- original claimants. No.2: Original respondent No.1. ...
Legal Reasoning
Mr. S. G. Chapalgaonkar, Advocate for the appellant Mr. H.V. Dhage, Advocate for respondent Nos. 1-b to 1-E Mr. R. A. Tambe, Advocate for respondent No.2. Page 1 of 9 FA2911-16.odt WITH CROSS OBJECTION NO. 01 OF 2019 1. 2. 3. 4. 5. 6. 1. 2. Tulsabai w/o Yashwant Wable Age 74 years, Occu: Nil Shantabai W/o Tukaram Wable Age 45 years, Occu: Household Swati w/o Vikas Date, Age 31 years, Occu: Nil Ujwala d/o Tukaram Wable Age 29 years, Occu: Education Rahul s/o Tukaram Wable, Age 27 years, Occu: Education Sagar s/o Tukaram Wable, Age 25 years, Occu: Education All R/o Wasunde, Taluka Parner District Ahmednagar VERSUS HDFC ERGO General Insurance Co. Ltd., 6th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East), Mumbai 400 059 Through its Branch manager/ Authorized Signatory, first Floor, Renuka Complex, Nirala Bazar, Nageshwarwadi, Aurangabad ... Applicants (Original claimants) Pandurang s/o Dadabhau Date Age 47 years, Occu: Business R/o At Post Wasunde, Taluka Parner District Ahmednagar ... Respondents Mr. H.V. Dhage, Advocate for the applicants Mr. S. G. Chapalgaonkar, Advocate for respondent No.1 Mr. R. A. Tambe, Advocate for respondent No.2. CORAM : S. G. DIGE, J. RESERVED ON : 30.08.2022 PRONOUNCED ON : 19.10.2022 Page 2 of 9 FA2911-16.odt JUDGMENT : 1. Being aggrieved and dissatisfied by the judgment and award dated 12th October, 2015, passed by the Motor Accidents Claims Tribunal, Ahmednagar ( for short, the Tribunal) in MACP No.700 of 2008, the appellant/Original respondent No.2- Insurance Company preferred this appeal. The claimants/original petitioners have also filed Cross-objection for enhancement of compensation. I am deciding the appeal and cross objection by this common judgment. 2. Brief facts of the case are as under: On 4th August, 2008, decease Tukaram Wable was travelling in a tempo along-with his goods. He had gone to Sangamner, sold his tomatoes and purchased fertilizers. While returning from Sangamner, the offending tempo turned turtle and met with an accident. Offence was registered against the driver of the tempo. Original claimants/respondents filed the claim petition for getting compensation before the Tribunal. The Tribunal has passed the judgment and order which is under challenge. 3. It is the contention of the learned counsel for the appellant- Insurance company that the deceased and other passengers were travelling in the offending tempo as gratuitous passengers. The said tempo was goods vehicle. Risk of such passengers was not covered under the insurance policy. The tempo had capacity of two passengers Page 3 of 9 FA2911-16.odt whereas more than six passengers were travelling in the said tempo. It was against the policy. Hence, there is breach of terms and conditions of the policy. The learned counsel for the appellant relied on following case laws: (1) United India Insurance Co. Ltd. Vs. Suresh K.K. & another, (2008) 12 SCC 657 (2) Lahu Lakma Bije Vs. Kirtikumar Dayalji Kothari & another, 2010 (1) Mh.L.J. 973, (3) New India Assurance Company Vs. Asha Rani & others (2003) Supreme Corut Cases 223 (4) Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy & ors. (2003) 2 SCC 339. 4. The learned counsel for the appellant further submits that the Tribunal has awarded exorbitant compensation. Notional income of the deceased is considered as Rs.5000/- per month when there was no income proof produced on record. Hence, requested to allow the appeal and dismiss the cross-objection. 5. It is the contention of the learned counsel for the respondents/cross objector that in the written statement of respondent No.1 i.e. owner of the vehicle, it is stated that at the relevant time, after selling tomatoes, the deceased Tukaram had purchased fertilizers for crops and loaded the same in the offending tempo and was returning with his goods i.e. fertilizers. Therefore, the deceased was carrying goods with him when the accident took place. He was not a Page 4 of 9 FA2911-16.odt gratuitous passenger. The evidence was led before the Tribunal. The deceased was earning Rs.10,000/- per month from agricultural land and milk business but it was not considered by the Tribunal. Compensation under future prospectus and consortium are not awarded. Hence, requested to dismiss the appeal and allow the cross- objection. 6. I have heard all the learned counsel. Perused the judgment and order passed by the Tribunal. 7. The issues involved in this appeal and cross objection are, whether the Tribunal is justified in holding that the appellant Insurance company is liable to pay compensation when the deceased was gratuitous passenger in goods carriage vehicle and whether the Tribunal has awarded lessor compensation ? 8. Firstly, I deal with the issue regarding liability of the appellant-Insurance company. Admittedly, the deceased was travelling in the said vehicle to sell his tomatoes. The deceased had hired the said vehicle for selling tomatoes. Accordingly, he loaded tomatoes in the offending tempo and had gone to sell it at Sangamner market. There, the deceased sold his tomatoes in the market and then purchased fertilizer bags and while returning to his village, the accident had occurred. Report was given to the police about the accident by the cousin brother of owner of the offending tempo. In the said report, it is Page 5 of 9 FA2911-16.odt mentioned that five farmers had loaded tomatoes in the offending tempo for selling it at Sangamner and after selling it, while returning, the said accident occurred. 9. From the evidence of DW-1 Pandurang Date (Exh.44) who is owner of the offending tempo, it reveals that the deceased had loaded tomatoes for selling at Sangamner market. While returning, he purchased fertilizer bags and at the relevant time the accident was occurred. So, the deceased cannot be said as a gratuitous passenger in the said tempo. The offending tempo was insured with the appellant insurance company as goods vehicle. Hence, there is liability of the appellant to pay compensation. 10. The Hon'ble Apex court, in the case of case of Shivawwa & and another Vs. Branch Manager, National India Insurance Co. Ltd. & another (2018) 5 SCC 762, has observed that the finding of the Tribunal on the factum that the deceased had travelled along with his goods will have to be affirmed and restored. It would necessarily follow that the insurer was not absolved of its liability to pay the compensation amount awarded to the claimants. The ratio laid down by the Hon'ble Apex court is squarely applicable to the case at hand. I have gone through the case laws relied by the learned counsel for the appellant. The facts of cited case and case at hand are different, as in the present case, it has come on record that the deceased was travelling in the vehicle with goods. Page 6 of 9 FA2911-16.odt 11. In respect of lessor compensation awarded to the claimants, the Tribunal has awarded compensation of Rs.10,52,000/- inclusive of Rs.50,000/- NFL amount. It is the contention of the learned counsel for the respondents/claimants that notional income of the deceased is considered Rs.5000/- per month. It should be Rs.10,000/- per month. In my view, no evidence is produced on record to prove that the deceased was earning Rs.10,000/- per month. Hence, the notional income of Rs.5000/- considered by the Tribunal is proper. 12. No future prospects and consortium amounts are awarded by the Tribunal. Hence, the claimants are entitled for future prospects as per view of Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. (2017) 16 SCC 680. Consortium amount has not been awarded. In view of the judgment of Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram & others, 218 All SCR 2001, the claimants are entitled for consortium amount. 13. In view of the above, the claimants are entitled to receive the following amount of compensation: Sr.No. Head Compensation awarded 1. 2. 3. 4. Income of the deceased Tukaram Wable Rs. 5000/- Less 1/5 personal expenses Monthly income of Deceased (5000-1000) Rs.1000/- Rs.4000/- Addition towards future prospects Rs.1600/- Page 7 of 9 FA2911-16.odt (i.e. 40% of Rs.4000/- = Rs.1600/- Net monthly income of deceased: Yearly loss of income to be considered for assessment (5600x 12 ) Multiplier '14' ( Rs.67200 x 14) Medical expenses incurred for medical treatment of deceased Parental consortium for Tulsabai Spousal consortium for Shantabai Filial consortium for Swati, Ujwala, Rahul & Sagar each Rs.40,000/- Loss of Estate Funeral expenses Rs.5600/- Rs.67,200/- Rs.9,40,800/- Rs.3,20,629/- Rs.40,000/- Rs.40,000/- Rs.1,60,000/- Rs.15,000/- Rs.15,000/- Total compensation to be awarded Rs.15,31,429/- Tribunal granted Rs.10,52,000/- 5. 6. 7. 8. 10. 11. 12. 13. 14. 15. 16. 14.
Decision
In view of the above, I pass the following order. O R D E R (i) The first appeal is dismissed. (ii) Cross-objection is partly allowed. (iii) The amount of compensation is enhanced from Rs. 10,52,000/- to Rs.15,31,429/-. The claimants are entitle to enhanced amount of Rs 4,79,429/- (Rupees Four lakhs seventy nine thousand four hundred twenty nine only) with interest @ 6 % p.a. from the date of filing of the claim petition till realization of the amount. Page 8 of 9 FA2911-16.odt (iv) The appellant and respondent No.2 shall deposit enhanced amount along-with accrued interest before this Court within six weeks. (v) Respondent Nos. 1 to 1-g/Cross objectors are permitted to withdraw the deposited amount. JPChavan (S. G. DIGE, J. ) Page 9 of 9