High Court

Legal Reasoning

IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.1572 OF 20121.Smt. Kokilabai Yuvraj Pardhi (Chavan),Age 45 years, Occ. Household,2.Shri. Suresh Yuvraj Pardhi (Chavan),Age 23 years, Occ. Nil,3.Sau. Rekha Gopal Pardhi (Chavan),Age 28 years, Occ. Education,R/o C/o Shri. Gopal Natthu Pawar,Old Pardhi Wada, Adawad, Tal.Chopada,Dist. Jalgaon.4.Sau Sarika Dhanraj Pardhi (Salunkhe),Age 25 years, Occ. Household,R/o C/o Shri. Dhanraj Supdu Salunkhe,Khadki Borgaon, Tal. JamnerDist. Jalgaon.5.Sau. Pravina Sunil Pardhi (Mukhati),Age 22 years, Occ. Household,R/o C/o Shri. Sunil Ranchod Mukhati,Ranipura, Badwani, Dist. Badwani (MP)....AppellantsVERSUS1.Shri. Pravin Shivraj Jain,Age 45 years, Occ. Owner of vehicle,R/o 199 Baliram Peth, Jalgaon.2.The Oriental Insurance Company Ltd.,The Divisional Office, Near Shashri Tower, 2nd Floor, Central Phule Market,Jalgaon....Respondents...Advocate for the Appellants : Mr. M. M. BhokarikarAdvocate for Respondent No.2 : Mr. R. F. Totala…Page 1 of 10 2FA 1572-2012CORAM : R. M. JOSHI, J.Dated : July 04, 2024JUDGMENT :-1.This appeal is filed under Section 173 of the Motor Vehicles Acttaking exception against the impugned Judgment dated 31/07/2012,passed by Member of Motor Accident Claims Tribunal, Amalner in MotorAccident Claim Petition No.62/2010.2.Parties are referred as claimant, owner, driver and insurer for thesake of brevity.This petition has been filed by the original claimants forenhancement of the compensation. As per the case of the claimants on15/03/2010 at about 07.30 p.m. deceased Yuvraj Soma Pardhi(Chavan) was said to be travelling in auto rickshaw bearing No.MH-19/C-5416 from Bhalgaon to Amalner. When the rickshaw came atMhasave Shivar on Erandole Parola road, a tanker bearing registrationNo.MH-19 / J-329 came from opposite direction in high speed anddashed against rickshaw. As a result of the said accident, Yuvraj died.Claimants are wife and children of deceased Yuvraj. The age ofdeceased was said to be 50 years and it is claimed that he was doingbusiness of running a tea stall and was earning Rs.10,000/- per monthPage 2 of 10 3FA 1572-2012out of the said business. Owner of offending tanker filed writtenstatement at Exhibit 20 denying the contentions of the claimants thatthe accident took place due to the rash and negligent driving of thedriver of tanker. It is alleged that deceased Yuvraj himself was drivingauto rickshaw without any driving licence. It is claimed that in absenceof any valid driving licence on the date of the accident, he is to be heldresponsible for the occurrence thereof. It is claimed that the tankerwas duly insured with the insurer for the relevant period.3.Insurer filed written statement at Exhibit 19 opposing the claim.Age, income, occupation of the deceased and liability to paycompensation is denied. It is the case of insurer that driver of autorickshaw was close relative of Yuvraj. It is further claim of insurer thatdeceased Yuvraj sought permission of Kisan Bhika Chavan to drive autorickshaw, and accordingly, he was driving the same at the time ofaccident. It is thus claim of insurer that insurer is not liable to paymentany compensation.4.Issues were framed by the Tribunal. Claimant No.1 filed affidavitat Exhibit 22 and relied upon the police papers i.e. First InformationReport, spot panchanama, inquest panchanama, post mortem report,Page 3 of 10 4FA 1572-2012driving licence of the driver of tanker, certificate of registration thereof(Exhibit 23 to 30). Claimant No.1 Kokilabai Yuvraj Pardhi (Chavan) wasnot eye-witness to the accident and she deposed with regard to theaccident on the basis of police papers filed on record. Neither ownernor insurer has disputed genuineness of the said police papers. It istried that for the purpose of determining the compensation in aproceeding which is summary in nature, it is permissible for the partiesto rely upon the police papers and Tribunal can decide the issuesinvolved with regard to the occurrence of the accident on the basis ofsuch evidence. From documents placed on record, more particularlyfrom candid admission of claimant No.1 in cross-examination it isproved that at the time of occurrence of the accident, deceased Yuvrajwas driving the auto rickshaw. In the said accident he sustainedserious injuries and died on the same day. Thus, the claimants haveproved that the deceased has died involving motor vehicle.5.As far as negligence of the drivers of either of the vehicle isconcerned, there is no independent evidence led by the claimants aswell as owner and insurer. On the basis of police papers it is sought tobe contended by the claimants that the accident in question hasoccurred solely on account of the negligence of the driver of tanker. AsPage 4 of 10 5FA 1572-2012recorded above, genuineness of police papers is not in dispute. Spotpanchanama filed at Exhibit 24 shows that the accident has occurred inthe middle of the road which was having width of 24 feet with 3 feetKaccha road to both sides and blood stains were found at the center ofthe road. It is thus clear from the said panchanama that there washead-on collision between the auto rickshaw and tanker. Having regardto the fact that the tanker is of width more than auto rickshaw, it isobvious that some part of extreme right side of the tanker would beclose to the middle of the road. However, having regard to the width ofauto rickshaw, if the same was driven to the extreme right that is fromthe middle of the road, certainly the driver of the rickshaw needs to beheld responsible for the occurrence of the accident equally. Since theaccident has occurred in middle of the road and there is head-oncollision, needs to be held that driver of both vehicles are equallyresponsible for causing of said the accident.6.It is sought to be argued on behalf of the Counsel for theclaimants that in absence of any evidence being led by the owner orinsurer to prove the said negligence of the deceased, it was not openfor the Tribunal to hold deceased equally responsible for the occurrenceof the accident. In this regard it is pertinent to note that the claimantsPage 5 of 10 6FA 1572-2012have relied upon police papers which include spot panchanama Exhibit24. It cannot be permitted to the claimants to rely upon part of thepolice papers and deny the remaining part thereof. Once there issufficient evidence on record to indicate that the accident has occurreddue to the fault of both drivers, no further evidence was required to beled by owner or insurer to substantiate said fact. On the basis of theevidence on record, learned Tribunal has rightly held both drivers beingequally responsible for the occurrence of the accident. This Court,therefore, finds no reason or justification to interfere into the findingsto the effect that the deceased is therefore held to be contributorynegligent in the occurrence of the accident to the extent of 50 %.7.From post mortem notes it is clear that the age of the deceased50 years at the time of occurrence of the accident. Claimants havecontended that deceased was earning Rs.10,000/- per month byrunning a tea stall. Perusal of record however shows that there isabsolutely no evidence led by claimants to prove that he was earningRs.10,000/- per month. Claimant No.1 in her cross-examination hasaccepted that the deceased was doing work of stone breading. Meaningthereby the work done by the deceased cannot be anything more thanlabour work. In absence of any evidence being led by the claimants toPage 6 of 10 7FA 1572-2012prove income of the deceased, it was open for the Tribunal to considerthe notional income of the deceased for the purpose of computation ofhis income. In the instant case, learned Tribunal has held the saidnotional income at Rs.3000/- per month. This Court however findssuch notional income being not in consonance with the minimum wagepayable to the Class-4 employee at the relevant time. In and aroundyear 2010, minimum wages for labourer doing the work of breadingstone etc. was Rs.4000/- per month. In view of Judgment of Hon’bleSupreme Court in case of National Insurance Company Ltd. vs.Pranay Sethi and others, reported in 2017 SCC Online SC1270: 2017 ACJ 2700, further prospects to initial income. Hence byfollowing Judge in case of Pranay Sethi (Supra) and considering ageof deceased income for purpose of calculation of compensation isconsidered at Rs.5333/- (i.e. Rs.4000/- + 25% future prospectsRs.1333/-). As age of the deceased was 50 years, followingJudgment in case of Sarla Verma and Ors. vs. Delhi TransportCorp. and Anr., reported in AIR 2009 SC 3104, multiplierapplicable would be 11. From the total compensation 1/3rd amountwould be deducted towards personal expenses of deceased owing tomembers of dependent on him. The Tribunal therefore has committedPage 7 of 10 8FA 1572-2012error in not considering the minimum wage applicable to the saidcategory of the workman. The notional income of the deceasedtherefore is held at Rs.4000/- per month and the amount ofcompensation is calculated thereon. Considering the dependency onthe deceased 1/3rd amount deserves to be deducted towards hispersonal expenses. Having regard to the said fact, 5333/- x 12 =63,996/-. (63,996/- x 11= 7,03,956). Out of it, deduction towards thepersonal expenditure of deceased to be taken 1/3rd. Amount ofcompensation, loss of income is determined at Rs.4,69,304/-(Rs.7,03,956/- minus 1/3rd i.e. Rs.2,34,654/-)8.The learned Tribunal has granted consortium of Rs.5000/-payable to widow i.e. claimant No.1 and for funeral expenses ofRs.5000/-, for loss of estate Rs.2000/-, and Rs.10000/- towards loveand affection. Learned Counsel for claimants submits that the saidcompensation on these head is not sustainable in view of Judgment ofthe Constitution Bench in case of National Insurance Company Ltd.vs. Pranay Sethi and others (Supra). As per Judgment in case ofMagma General Insurance Co. Ltd. vs. Nanu Ram (2018) 18SCC 130, widow and all children of deceased would be entitled toreceive each Rs.40,000/- towards consortium and funeral expensesPage 8 of 10 9FA 1572-2012heads in accordance with the law laid down by the Hon’ble Supremecourt therein. Accordingly, wife and children to be paid Rs.40,000/-each as consortium. In addition hereto they would be entitled toreceive Rs.15,000/- towards funeral expenses. Thus, totalcompensation payable tot he applicants is Rs.6,84,304/- (Rs.4,69,304/-+ Rs.2,00,000/- + Rs.15,000/-). As the deceased himself hadcontributed to the accident equally, a deduction of 50% will have to bemade, and hence, the compensation payable will be Rs.3,42,152/-(6,84,304/- minus 50% = Rs.3,42,152/-). 9.Learned Counsel for insurer amongst other submission hasraised objection to grant of interest @ 9% per annum as granted bythe Tribunal. He further submits that even in respect of theenhanced compensation, interest cannot be granted. In this regardit is pertinent to note that as per provisions of Section 163 of theAct, it is a discretion of the Tribunal to award interest on the amountof compensation. As far as interest granted @ 9 % per annum isconcerned, there is no material to indicate that interest so granted isexcessive. As far as the enhancement of compensation isconcerned, once it is held that the claimants were entitled to receivePage 9 of 10 10FA 1572-2012such compensation and hence enhancement is granted, they areentitled to receive interest thereon from the date of application.Having regard to these facts, the contention of insurer with regard tointerest does not deserve acceptance.10.In view of the above discussion, the impugned order passed inMACP No.62/2010 is allowed in following terms : -(A)Opponent Nos.1 and 2 shall jointly and severallypay compensation of Rs.3,42,152/- along with theinterest @ of 9% per annum from the date of applicationtill realization of the amount.(B)Rest of the order passed by the Tribunal to remainunchanged. ( R. M. JOSHI, J. )vj gawade/-.Page 10 of 10