High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1429 OF 2019WITH CIVIL APPLICATION NO. 10624 FO 2023BHARTI AXA GENERAL INSURANCE COMPANY LTD THOUGH ITSMANAGERVERSUSSHESHABAI @ SHASHIKALA W/O PRAKASH PAWAR AND ANOTHERMr. S. S. Patil, Advocate and Mr. R. H. Dahat, Advocate for the appellant Ms. Usha N. Jadhav, Advocate h/f Ms. P. J. Bharad, Advocate for respondent Nos. 1 to 4.CORAM: R. M. JOSHI, J.DATE: 15th JANUARY, 2024P.C. :-1.This appeal filed under Section 173 of Motor Vehicle Act (for short‘MV Act’) takes exception to the judgment and award dated 27/11/2018passed in MACP No. 74/2014.2.The facts which led to the filing of present appeal can be narratedas under:(i)On 06/05/2013 at about 5.30 pm deceased Prakash wasdischarging his duty as a driver on Tipper bearing registration No. MH-26H 7443 and was proceeding from Karkheli Hotmix Plant to Umri. Whenhis vehicle reached near Dhanora bridge, another vehicle Tipper bearingNo. MH-26 AD 646 came from the back side and high and excessivespeed and gave dash to the vehicle driven by the deceased from backfa1429.19.odt1 of 6 side. As a result of the said dash the tipper turned turtle and Prakashsustained serious head injury. Though he was shifted to YeshodaHospital, Nanded for treatment, while being treated he died on10/05/2013. Deceased was aged about 48 years at the time of accidentand was earning Rs.15000/- per month in addition thereto Rs.75/-towards daily bhatta. It is stated that respondent No.1 is the owner ofthe tipper (offending vehicle) which is duly insured with respondent No.2during the relevant period. Considering age, income and medicalexpenses incurred by deceased claimants claimed Rs.15 lakhs towardscompensation.(ii)In spite of service of summons respondent No.1 owner failed toappear and hence claim petition proceeded ex-parte against him.Respondent No.2 filed written statement at Exhibit 20 denying all thecontentions and allegations raised by the claimants including age andincome of the deceased. It is denied that the accident has occurred dueto rash and negligent driving of the offending vehicle. It is also claimedthat the driver of the said vehicle was not holding effective drivinglicense and as such there is breach of terms and conditions of theinsurance policy whereby the insurer is not liable to make payment ofcompensation.(iii)The Tribunal framed issues at Exhibit 21. Claimants examinedfa1429.19.odt2 of 6 Sheshabai @ Sheshikala claimant No.1 at Exhibit 22 and relied uponcharge-sheet (Exhibit 26), spot panchanama (Exhibit 27), inquestpanchanama (Exhibit 28), insurance policy (Exhibit 29), driving license(Exhibit 30), provisional postmortem report (Exhibit 32), copy of FIR(Exhibit 33) and statements of witnesses recorded under Section 161 ofCr.P.C. (Exhibits 35 and 36). In order to prove the employment andincome of the deceased claimants examined Ghadling Govind Kadam(Exhibit 39). He proved salary certificate (Exhibit 40). Insurer did notadduce any oral or documentary evidence. The learned Tribunal afterconsidering evidence on record allowed the claim to the extent ofRs.9,41,200/- holding respondent Nos.1 and 2 jointly and severally liablefor the payment of compensation.3.Being aggrieved by the said judgment and award insurer filedpresent appeal on the ground that the impugned award is contrary to theevidence on record and the provisions of law. It is claimed that theTribunal has committed error in granting future prospects without therebeing any proof of regular source of income of the deceased. It isclaimed that deceased was not in permanent employment and hencefuture prospects should not have been granted. Exception is taken thenotional income of the deceased held to be at Rs.8000/- which accordingto the insurer could be at the most Rs.5000/- per month. It is furtherfa1429.19.odt3 of 6
Legal Reasoning
claimed that the breach of terms and conditions of the policy is ignoredby the Tribunal and that the insurer ought not to have been held liablefor payment of compensation.4.Learned counsel for the insurer submits that the Tribunal has erredin fastening the liability of payment of compensation on the insurer whenthe claimants to have failed to discharge their burden of proving that thedriver of the vehicle was not holding valid and effective license. It is alsosought to be argued that the vehicle was driven without permit. Asregard the income of the deceased considered by the Tribunal it isargued that the Tribunal in absence of any reliable evidence ought not tohave held that the deceased was earning regular income and in any casethe amount of Rs. 8000/- considered as notional income is excessive.Learned counsel for the claimants supported the impugned judgment andaward.5.Initial burden was on the claimants to prove the factum of theaccident and negligence on the part of the offending vehicle inoccurrence thereof. Claimants examined claimant No.1 (Exhibit 22) andplaced reliance on the documentary evidence as stated above. The saidevidence shows that offence was registered against the driver ofoffending vehicle. The police papers placed on record clearly show thatthe driver of the offending vehicle was responsible for the occurrence offa1429.19.odt4 of 6 the accident. Facts as they appear from the said record indicates that theoffending vehicle gave dash to the vehicle driven by the deceased fromthe back side and as a result of which his vehicle turned turtle. Theevidence placed on record by the claimants is more than sufficient todischarge the burden of proving that the accident has occurred due tothe negligence of the driver of offending vehicle. The onus has shifted onowner and insurer to prove otherwise. Admittedly, both failed to lead anyevidence in rebutting.6.As far as the income of the deceased is concerned, the very factthat he was driving the vehicle of some other person indicates that hewas employed for driving the said vehicle. Claimants have examinedGhadling Govind Kadam at Exhibit 39 who has deposed about thedeceased being employed for the purpose of driving his vehicle he alsoproved salary certificate (Exhibit 40). During the cross-examination thiswitness has accepted that there is no registration of his business withany government authority nor even the certificate placed on record asinward or outward number. He further admitted that employees are notcovered under the provident fund scheme nor any agreement was placedon record between the firm and the employees. Having regard to thesefacts, the Tribunal was of the view that the income of the deceased hasclaimed by the claimants cannot be accepted. Tribunal by observing thatfa1429.19.odt5 of 6 since the deceased was working as a driver and considering the nature ofwork his income was considered at Rs.8000/-. Having regard to thenature of evidence placed before the Tribunal, the said findings cannot becalled as perverse.7.There is no dispute made by the parties with regard to thecalculation done by the learned Tribunal while computing the amount ofcompensation by applying appropriate multiplayer having regard to theage of the deceased. The Tribunal has considered future prospects to theextent of 10% and having regard to the facts and circumstances of thecase the order of grant of future prospects does not deserve anyinterference. As far as the contention of the learned counsel for theinsurer about breach of terms and conditions of the policy, for want ofany evidence no such finding could have been recorded by the Tribunal.8.In the result, no case is made out by the appellants for causing anyinterference in the impugned judgment and award. Hence, appeal standsdismissed. Pending application, if any, stands disposed of.(R. M. JOSHI, J.)sspfa1429.19.odt6 of 6