High Court
Legal Reasoning
{1} FA-3198-2017IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 3198 OF 2017Bajaj Allianz General Insurance Co. Ltd.,Through its Branch Manager,C.E. Plaza, Airport Road,Yervada, Pune-411 006.Through its Branch Manager/Authorized Signatory, 2nd Floor, Rajendra Bhavan, AdalatRoad, Nex to LIC Building, Aurangabad. ...APPELLANT [Orig. Resp. No. 3]VERSUS1. Smt. Nabhabai Gorakh Gaikwad, Age: 37 years, Occu: Household,2. Radhabai Gorakh Gaikwad Age: 16 years, Occu: Education,3. Lalchand Gorakh Gaikwad Age: 12 years, Occu: Education,4. Jagdish Gorakh Gaikwad, Age: 09 years, Occ: Nil, Respondent Nos. 2 to 4 being minor through their mother i.e. Respondent no. 1 All R/o. Kundane, Taluka Dist. Dhule.5. Dnyaneshwar Hiraman Patil Age: Adult, Occu: Driver, R/o. Gotane, Tal. Dhule, Dist. Dhule.6. Ranjanabai Hari Patil Age: Adult, Occu. Owner of Tata goods truck bearing registration number MH-18-AA-8699 R/o. Baburle, Taluka & Dist. Dhule....RESPONDENTS[Resp. Nos. 1 to 4- Orig. Claimants & Resp. No. 5 & 6- Orig. Resp. No. 1 & 2]Bhagyawant Punde
Legal Reasoning
{2} FA-3198-2017Mr. Mohit Deshmukh , Advocate for appellantMr. Shrikant S. Patil, Advocate for respondent Nos. 1 to 4....… CORAM : NITIN B. SURYAWANSHI, J. RESERVED ON : 9th SEPTEMBER, 2024PRONOUNCED ON : 9th OCTOBER, 2024JUDGMENT :1.Heard.2.Admit. Taken up for final hearing with the consent ofparties.3.This appeal filed under Section 173 of Motor VehiclesAct, challenges judgment and award dated 28.11.2016 passedby learned Member, Motor Accident Claims Tribunal, Dhule, inM.A.C.P. No. 543 of 2012.4.Facts leading to this first appeal, in brief, can bestated thus:On 08.05.2012 Prasraj alias Parshuram Patil was notkeeping well, therefore, Haushilal Krushna Patil and GorakhKhandu Gaikwad took him on motorcycle to the hospital fortreatment. On Nagpur-Surat road, within the area of village Ner,near Dhandai petrol pump, truck bearing No. MH-18-AA-7699gave dash to the motorcycle and due to the injuries received inthe accident Gorakh Gaikwad died during medical treatment. Thetruck driver was prosecuted in C.R. No. 115/2012. Claimants,Bhagyawant Punde {3} FA-3198-2017therefore, filed claim contending that deceased was doing labourwork on the boring machine vehicle. He was 34 years old andwas getting salary of Rs. 6,000 to 7,000 per month. They,therefore, claimed compensation of Rs. 7,00,000/- along withinterest. 5.Opponent Nos. 1 and 2/Driver and owner ofoffending vehicle did not appear in the Tribunal and claimproceeded ex-parte against them. Opponent No. 3/InsuranceCompany opposed the claim by filing written statement. It isclaimed that offending truck was not involved in the accident.Accident is dated 08.05.2012 and report of the accident is givenby rider i.e. Haushilal Deore against unknown vehicle. Therefore,offending truck cannot be said to be involved in the accident. Itis further contended that driver of the offending truck was notholding valid and effective driving license and therefore there isbreach of terms and conditions of policy. Hence, Insurancecompany is not liable to pay the compensation.6.The Tribunal after recording evidence, allowed theclaim and directed Opponent Nos. 2 and 3/owner and insurancecompany to jointly and severally pay compensation of Rs.9,54,000/- along with interest @ 7% p.a. Insurance Company isBhagyawant Punde {4} FA-3198-2017aggrieved by said judgment and award.7.Heard learned advocate for appellant/InsuranceCompany and learned advocate for respondent Nos. 1 to4/Claimants.8.Learned advocate for appellant submits thatoffending truck was not at all involved in the accident and theFIR of the accident dated 08.05.2012 was lodged in 13.05.2012by the investigating officer stating that unknown vehicle gavedash to the motorcycle. He therefore submits that burden ofproving involvement of offending truck is not discharged by theclaimants and merely because charge sheet is filed against driverof offending truck that by itself is not sufficient to hold thataccident has occurred due to rash and negligent driving of thetruck. He submits that wife of deceased was of 32 years of ageat the time of deposition, hence, deceased cannot be said to beof 24 years old, particularly, in view of the fact that claimant No.1 and deceased were having three children aged, 11 years, 7years and 4 years. He therefore submits that Tribunal has erredin applying multiplier of 18 and multiplier of 15 at the most canbe said to be applicable in the facts of the present case asdeceased would be in the age of group of 36-40 years. HeBhagyawant Punde {5} FA-3198-2017submits that towards loss of love and affection and consortiumamount of Rs. 1,00,000/- and towards funeral expenses Rs.25,000/- is awarded, which is excessive and contrary to decisionin Pranay Sethi. He therefore, submits that first appeal may beallowed by quashing the impugned judgment and award.9.Learned advocate for respondents No. 1 to4/claimants, on the other hand, supported the impugnedjudgment and award. He submits that Tribunal has wronglyassessed the income of deceased and failed to calculatecompensation under the head ‘future prospects’. Circular issuedby Central Government specifying monthly wages of unskilledworkers at Rs. 8,000/- is not considered by the Tribunal. Hesubmits that, therefore, claimants are entitled for enhancedcompensation. In support of his arguments he relied onNingamma And Anr. v. United India Insurance Co. Ltd., AIR 2009SC 3056, Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar,2015 AIR SCW 1067, National Insurance Company Limited v.Pranay Sethi, AIR 2017 SC 5157, Oriental Insurance Co. Ltd. v.Mohd. Nashir and Anr., 2009 AIR SCW 3717, Kelkar and Kelkarv. Shripad Narayan Gore, AIRONLINE 2019 BOM 2200, UnitedIndia Insurance v. Kunti Binod Pande, AIRONLINE 2019 BOMBhagyawant Punde {6} FA-3198-20171446, Nagappa v. Gurudayal Singh and others, AIR 2003 SC 674and decision of learned Single Judge in First Appeal No. 4258 of2017.10.In reply, learned advocate for appellant vehementlyopposed the prayer of claimants to award just and faircompensation on the ground that no cross appeal is filed byclaimants. By relying on Ranjana Prakash and Ors v. DivisionalManager and Anr. 2012 AIR SCW 848 and Dheeraj Singh vs.Greater Noida Industrial Development Authority & Ors., AIR2023 SC 3110 he submits that in absence of appeal or crossobjection, prayers for enhancement of compensation cannot beentertained. He also placed reliance on New India AssuranceCompany Ltd, Aurangabad v. Sunita Balaji Pandit Alias Potdar,AIRONLINE 2019 BOM 1222.11.Heard learned advocate for appellant and learnedadvocate for claimants at length. Perused the record and thecitations relied upon by the parties.12.It appears from the record that accident occurred on08.05.2012 and FIR (Exhibit-14) is registered by police constableRajendra Patil on 13.05.2012 against unknown vehicle. It ismentioned in the FIR that while taking deceased to the hospital,Bhagyawant Punde {7} FA-3198-2017one unknown truck dashed motorcycle, while overtakinganother vehicle. Truck number and driver’s name could not beknown. On the same day, statement of Sanjay Kapoor (Exhibit-15), who claims to be an eye witness to the accident is recorded.He has stated that while he was going on his motorcycle alongwith Sanjay Saindane towards Dhule they saw that in front ofDhandai petrol pump one unknown truck going towards Ner fromKusumba gave dash to the motorcycle going in front of them andsped away from the spot. They therefore chased the truck andsaw its number as MH-18-AA-7699. However, they could notcatch the truck as it was being driven in high speed. Admittedly,charge sheet is filed against the truck driver for causing accidentby rash and negligent driving. In this view of the matter, thereappears no substance in the contention of appellant thatoffending truck was not involved in the accident. Admittedly, nomaterial is brought on record by the appellant in support of itscontention that offending truck was not involved in the accident.13.In the light of aforesaid documents, claimants havedischarged their prima facie burden of proving that offendingtruck is involved in the accident and accident occurred due torash and negligent driving of the offending truck. There is noBhagyawant Punde {8} FA-3198-2017merit in the submission of appellant that claimants have failed todischarge burden of proving involvement of offending truck inthe accident.14.There appears substance in the contention ofappellant that age of the deceased was not 24 years at the timeof accident. Wife of the deceased has filed claim petition on13.07.2012. In the cause title she has stated her age as 32years. Age of Claimant No. 2- Radhabai daughter of deceased ismentioned as 11 years, claimant No. 3 and claimant No. 4 sonsof deceased, their age is mentioned as 7 years and 4 yearsrespectively. In provisional post mortem report age of thedeceased is mentioned as 24 years. Final post mortem report isnot placed on record. Considering the fact that daughter of thedeceased was 11 years old at the time of accident and his wifewas 32 years old, age of the deceased must be within the agegroup of 35-40 years. The Tribunal has erred in taking age ofdeceased as 24 years.15.Learned advocate for claimants by relying on Rule 33of Order 41 of CPC and Nagappa (supra) and Jitendra Trivedi(supra) has submitted that Appellate Court is empowered toaward just and fair compensation, even if no appeal is preferredBhagyawant Punde {9} FA-3198-2017by claimants for enhancement. Rule 33 of Order 41 reads thus:ORDER 41 RULE 33“33. Power of Court of Appeal.- The AppellateCourt shall have power to pass any decree andmake any order which ought to have been passedor made and to pass or make such further orother decree or order as the case may require,and this power may be exercised by the Courtnotwithstanding that the appeal is as to part onlyof the decree and may exercised in favour of all orany of the respondents or parties, although suchrespondents or parties may not have filed anyappeal or objection, [and may, where there havebeen decrees in cross-suits or where two or moredecrees are passed in one suit, be exercised inrespect of all or any of the decrees, although anappeal may not have been filed against suchdecrees]:[Provided that the Appellate Court shall notmake any order under section 35-A, in pursuanceof any objection on which the Court from whosedecree the appeal is preferred has omitted orrefused to make such order.]”The above provision enables the appellate Court toexercise powers in favour of all or any of the respondents,though said respondents or parties may not have filed anyBhagyawant Punde {10} FA-3198-2017appeal or cross objection. In this view of the matter also theAppellate Court is entitled to consider the case of claimants forawarding them just and fair compensation. 16.Nagappa (supra) and Jitendra Trivedi (supra) arerendered in the matters arising out of Section 158(6) and 168 ofM.V. Act. In Jitendra Trivedi (supra) it is held:“13. The tribunal has awarded Rs.2,24,000/- asagainst the same, claimants have not filed anyappeal. As against the award passed by thetribunal when the claimants have not filed anyappeal, the question arises whether the income ofthe deceased could be increased andcompensation could be enhanced. In terms ofSection 168 of the Motor Vehicles Act, thecourts/tribunals are to pass awards determiningthe amount of compensation as to be fair andreasonable and accepted by the legal standards.The power of the courts in awarding reasonablecompensation was emphasized by this Court inNagappa vs. Gurudayal Singh & Ors., OrientalInsurance Company Ltd. vs. Mohd. Nasir & Anr.,and Ningamma & Anr. vs. United India InsuranceCompany. As against the award passed by thetribunal even though the claimants have not filedany appeal, as it is obligatory on the part ofcourts/tribunals to award just and reasonableBhagyawant Punde {11} FA-3198-2017compensation, it is appropriate to increase thecompensation.”17.In Nagappa (supra) it is held that, “Award need notbe limited to the amount specified in claim petition. Onlyembargo is that it should be ‘Just’ compensation. No limitation isprescribed by M.V. Act for claiming compensation and if evidenceon record justifies enhanced compensation, Tribunal is notbarred from awarding compensation in excess of amountclaimed.”18.This Court in Kunti Pande (supra) has observed;“27. This Court shall first decide the issue whetherthe original applicant is required to file any cross-appeal or cross-objection for seeking enhancementof the claims not awarded by the Tribunal or forseeking additional claim for compensation undervarious heads in the First Appeal filed by theInsurance Company impugning the part of thejudgment and award rendered by the Tribunal.28. Learned counsel for the appellant and therespondent nos. 1 to 4 have relied upon severaljudgments in support of their rival contentions onthis issue which are being referred to and dealtwith in the later part of this judgment. TheSupreme Court in case of Ramla and Ors. v/s.National Insurance Company Limited and Ors.,Bhagyawant Punde {12} FA-3198-2017(2019) 2 SCC 192 has held that there is norestriction that the Court cannot awardcompensation exceeding the claim amount, since,the function of the Tribunal or Court under Section168 of the Motor Vehicles Act, 1988 is to award‘just compensation’. The Motor Vehicles Act is abeneficial and welfare legislation. A ‘justcompensation’ is one which is reasonable on thebasis of evidence produced on record. It cannot besaid to have become time barred. Further, there isno need for a new cause of action to claim anenhanced amount. The Supreme Court adverted toits earlier judgment in case of Nagappa v/s.Gurudayal Singh, (2003) 2 SCC 274, in case ofMagma General Insurance Co. Ltd. (supra) and incase of Ibrahim v/s. Raju, (2011) 10 SCC 634.29. Supreme Court in case of Andhra Pradesh StateRoad Transport Corporation v/s. M. Ramadevi andOrs. (supra) after adverting to its earlier judgmentin case of Nagappa v/s. Gurudayal Singh (supra)rejected the contention that when there was nocross- appeal or no cross-objection filed by theclaimants in the appeal filed by the appellant-corporation, the High Court could not haveenhanced the amount. The Supreme Courtenhanced the compensation awarded by theTribunal in the said judgment. The Supreme Courtin case of Sanobanu Nazirbhai Mirza and Ors.(supra) adverted to its earlier judgment in case ofBhagyawant Punde {13} FA-3198-2017Nagappa v/s. Gurudayal Singh (supra) andenhanced the amount of compensation.30……34. A Division Bench of this Court in case ofNational Insurance Co. Ltd. v/s. Ms. Vaishali HarishDevare and Ors. (supra) has held that even if thereis no cross-appeal or cross- objection preferred bythe claimants, the exercise of determining the justcompensation will have to be carried out. Suchadjudication can be made even without takingrecourse to Rule 33 of Order XLI of Code of CivilProcedure.35….37. In so far as the judgment of Supreme Court incase of Ranjana Prakash & Ors. v/s. DivisionalManager and Anr. (supra) is concerned, the saidjudgment has been interpreted by this Court invarious judgments already referred to aforesaidand after considering the later judgment of theSupreme Court, it is held by this Court that filing ofsubstantive appeal or cross-objection by theclaimant for seeking enhancement of the claims isnot necessary. The principles of law laid down bythe later judgment of Supreme Court and this Courtin large number of judgments referred to aforesaid,apply to the facts of this case. The reliance placedby the learned counsel for the appellant on thejudgment delivered by Shri Justice G.S. Patel on29th June, 2017 in case of United India InsuranceBhagyawant Punde {14} FA-3198-2017Company Limited v/ s. Rajani Suresh Bhore andOrs. (supra) is misplaced. The judgment of theSupreme Court in the aforesaid judgment taking adifferent view, apply to the facts of this case. I amrespectfully bound by the said judgment.38. In my view, there is thus no embargo on thisCourt to enhance the claims not awarded by theTribunal in favour of the original claimant. Thosecompensation can be awarded to grant “justcompensation” in favour of the claimant to docomplete justice in the matter. In my view, there isthus no substance in the submission of the learnedcounsel for the appellant that various judgmentsreferred to and relied upon by the learned counselfor the respondent nos. 1 to 4 had not consideredthe provisions of Order XLI Rule 33 of the Code ofCivil Procedure, 1908. The Division Bench of thisCourt in case of National Insurance Co. Ltd. v/s.Ms. Vaishali Harish Devare and Ors. (supra) hadconsidered the provisions of Order XLI Rule 33 ofCode of Civil Procedure in the said judgment. In myview, since it is the statutory obligation of theTribunal and also the Court to do complete justiceto the parties and award “just compensation”, thereis no restriction to enhance the compensation inappropriate case even in absence of cross-appeal orcross-objection. Appeal proceedings are incontinuation of proceedings before Tribunal. In myview, claimant can be permitted to pay anBhagyawant Punde {15} FA-3198-2017additional amount of Court fees, if any on theadditional compensation, allowed by the AppellateCourt on the differential amount.”I am in respectful agreement with the aforesaidobservations. 19.Decision in Nagappa (supra) and Jitendra Trivedi(supra) are consistently followed by this Court. Same is followedat Principle Seat in Kelkar and Kelkar (supra), Kunti Pande(supra), First Appeal No. 4258 of 2017, so also by this Court inFirst Appeal Nos. 2689/2015, 1/2017 and 2665/2015.20.In Ranjana Prakash (supra), Apex Court has held:“The fact that claimants did not independentlychallenge the award will not, therefore, come in theway of their defending the compensation awarded,on other grounds. This principle also flows fromO.41 Rule 33 of the Code of Civil Procedure whichenables an appellate Court to pass any order whichought to have been passed by the trial Court and tomake such further or other order as the case maybe require, even if the respondent had not filed anyappeal or cross-objections. This power is entrustedto the appellate Court to enable it to do completejustice between the parties. Order 41, Rule 33 ofthe Code can, however, be pressed into service toBhagyawant Punde {16} FA-3198-2017make the award more effective or maintain theaward on other grounds or to make the orderparties to litigation to share the benefits or theliability, but cannot be invoked to get a larger orhigher relief.”21.Since decision in Jitendra Trivedi (supra) is beingconsistently followed by this Court in catena of decisions and inview of settled legal position that if two interpretations arepossible then one favorable to the claimants needs to beconsidered, as provision under Section 166 of M.V. Act is welfarelegislation, this Court is inclined to follow decision in JitendraTrivedi (supra) and Nagappa (supra). In Ranjana Prakash (supra)it is observed that, power under Rule 33 Order 41 is entrusted tothe Appellate Court to enable it to do complete justice betweenthe parties. Decision in Jitendra Trivedi (supra) is subsequent toRanjana Prakash (supra).22.In the light of aforestated reasons, there is no meritin the objection by the appellant that in absence of appeal filedby claimants they are not entitled to seek just and faircompensation in the appeal filed by insurance company.23.Before the Tribunal claimants contended thatBhagyawant Punde {17} FA-3198-2017deceased was working as labour on vehicle on which boringmachine was installed and he was earning Rs. 6,000-7,000wages per month. The Tribunal has held that claimants have notbrought any document on record to show income of thedeceased. The Tribunal has assessed notional income ofdeceased at Rs. 4,500/- per month. Accident has taken place on08.05.2012. In view of notification published by Ministry ofLabour and Employment under section 4(1B) of the Employee’sCompensation Act, 1923, in Gazette of India on 31.05.2010, theCentral Government has specified minimum monthly wages ofunskilled workers at Rs.8,000/- p.m. Judicial notice of the samecan be taken and notional income of deceased has to beconsidered at Rs. 8,000/- per month.24.The Tribunal has erred in denying compensationunder the head ‘future prospects’ on the ground that there is noevidence about income of the deceased.Considering that the age of deceased was within theage group of 35-40 years, 40% future prospects needs to beadded in terms of decision in Pranay Sethi (supra). Consideringsaid age group, multiplier of 15 would be applicable in thepresent case. Bhagyawant Punde {18} FA-3198-201725.Claimants are justified in contending that theTribunal has failed to award consortium and loss of love andaffection, in view of ratio in Pranay Sethi (supra) and MagmaGeneral Insurance Co. Ltd. vs. Nanu Ram Alias Chuhru Ram andOthers (2018) 18 SCC 130. Therefore claimants are entitled forRs. 40,000/- each i.e. 1,60,000/- plus 20% (Rs. 32,000/-) whichcomes to Rs. 1,92,000/- towards consortium and loss of love andaffection.26.For the aforestated reasons, claimants are entitledfor following compensation:Sr. No. HeadsAmount in Rs. 1Notional Income (8000 x 12)96,000/-2Future Prospects 40% i.e.38400 (96,000 + 38,400)1,34,400/-3Less 1/4th Deduction i.e. Rs.33600 (1,34,400 – 33,600)1,00,800/-4Multiplier of 15 (1,00,800 x15)15,12,000/-5Non Pecuniary Damages-i) Consortium and Loss of Loveand Affection- Rs. 1,92,000/-ii)Funeral Expenses- Rs.25,000/- 2,17,000/-Total compensation to be paid17,29,000/-Compensation awarded byTribunal9,54,000/-Total Enhanced Compensation(17,29,000 – 9,54,000)7,75,000/-Bhagyawant Punde {19} FA-3198-201727.In the result, following order:ORDER(I)First Appeal filed by Appellant-Insurance Company isdismissed.(II)Impugned judgment and award dated 28.11.2016passed by Member, M.A.C.T. Dhule, in M.A.C.P. No. 543of 2012 is modified to the effect that claimants are heldentitled for enhanced compensation of Rs. 7,75,000/-along with interest @ 7% p.a from the date of claimpetition till its realization.(III)Appellant/Insurance Company to deposit amount ofenhanced compensation along with accrued interest inthe Tribunal within 12 weeks from the date of uploadingof this judgment.(IV)Rest of the award is maintained.(V)Claimants to pay deficit Court fees, if any, on enhancedcompensation as per rules. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde