High Court · 2025
Legal Reasoning
1271-19-FA.odt {1}IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.1271 OF 2019WITHCA/7555/2025 IN FA/1271/2019The New India Insurance Co. Ltd.,Branch Manager,Abbott Buildding, Ist Floor, Near Ashoka Hotel,Kings Road, Ahmednagar – 414001Through its Divisional Manager/Authorized Signatory,Mahesh Auto Compound, Adalat Raod,Aurangabad. … APPELLANT(Orig. Respondent No.2)Versus1. Minakshee Gokulkdas Gosavi, Age: 51 years, Occu.: Nil.2. Poonam Gokuldas Gosavi, Age: 29 years, Occu.: Education,3. Pooja Gokuldas Gosavi Age: 27 years, Occu.: Education,4. Prasad Gokuldas Gosavi, Age: 25 years, Occu.: Education All R/o. Sangamner, Tqluka Sangamner, District Ahmednagar.5. Arjun Shivshankar Rawni, Age: Major, Occu. Business, R/o. H.No. 16 at Baghodi, Post Saria Cirdih, District Girdih, Jharkhand – 815 301… RESPONDENTS(R-1to 4 Orig. Claimants) ( R-5 Orig. R-1)......Mr. S.R. Bodade, Advocate for AppellantMr. R.B. Dhakane, Advocate for Respondents No.1 a to 4...... 1271-19-FA.odt {2}CORAM : ABHAY S. WAGHWASE, J. RESERVED ON: 24 JULY 2025PRONOUNCED ON: 07 AUGUST 2025JUDGMENT:-1.This is an appeal filed by the Insurance Company takingexception to the judgment and award dated 17.07.2015 passedby the learned M.A.C.T, Sangamner in M.A.C.T. No.96 of 2011.BRIEF FACTS GIVING RISE TO THE APPEAL ARE AS UNDER:2.The present respondents No.1 to 4 set up the aboveclaim against the owner of the truck and its insurer on thepremise that, on 18.12.2010, deceased Gokuldas, who was inthe employment of Public Works Department, Sub-Division,Sangamner, was behind the wheels of Government Jeep bearingNo. MH-04-Y-175. When the said vehicle reached the vicinity ofvillage Naigaon, a truck bearing No. HR-38-K-2361, comingfrom the Malkapur side at an excessively high speed and on thewrong side of the road, and gave a dash to the jeep, causinggrievous injuries to the deceased Gokuldas. He succumbed onthe spot. Crime was registered against truck driver, as accidenthas occurred due to his entire negligence. The wife, daughters,and son of the deceased Gokuldas filed Accident Claim Petition 1271-19-FA.odt {3}No. 96 of 2011, seeking compensation to the tune of Rs.19,00,000/- on the ground that they were his dependents andhad lost their source of income due to his death. The deceasedGokuldas was the sole bread earner of the family; therefore, theclaimants sought compensation under various heads from theowner of the vehicle as well as the insurer.3.In response to the notices issued by the Tribunal,respondent No.1 filed written statement at Exhibit-14 denyingnegligence and rather set up the case of negligence of deceasedGokuldas (jeep driver). Respondent No. 2, the insurancecompany, also filed a written statement at Exhibit-25, taking thestand that the deceased himself was rash and negligent. Thesecond ground raised for objection was that the driver of theoffending truck was not holding a valid driving licence, whichamounted to a breach of the insurance policy; therefore, theinsurance company sought dismissal of the claim petitionagainst it.4.The necessary issues were framed by the Tribunal, andby judgment and award dated 17.07.2015, the claim petitionwas partly allowed, directing respondents No. 1 and 2 to pay 1271-19-FA.odt {4}compensation jointly and severally to the tune of 14,11,404/-,₹along with interest at the rate of 8% per annum.Feeling aggrieved by the award dated 17.07.2015, theinsurance company has taken exception to the above award byfiling the instant appeal on various grounds spelt out in theappeal memo.5.The thrust of the learned counsel for the insurancecompany is that, firstly, the sole negligence of the truck driver isnot established. Secondly, the truck driver, i.e., the driver of theoffending vehicle, was not holding a valid licence on the date ofthe accident; therefore, there was a breach of the policycondition, and the insurance company is not liable to paycompensation.6.Learned counsel for the insurance company has taken aspecific plea, with contentions raised in the written statementfiled by the company, stating that the insurance companyengaged a private investigator who conducted a thoroughinvestigation at the R.T.O. office in Kolkata, which hasjurisdiction to issue the licence to the offending truck. Theinsurance company is in receipt of communication dated
Legal Reasoning
1271-19-FA.odt {5}29.08.2013 from R.T.O. office conveying that photocopy of thedriving licence is fake. Learned counsel submitted that,unfortunately, due to a communication gap, the investigator’sreport could not be placed on record before the Tribunal; hence,a civil application for additional documents has been filed. Forall the above reasons, the liability of the insurance company asfixed by the Tribunal has been questioned in this appeal.7.Per contra, learned counsel for therespondents/claimants supported the impugned judgment andaward passed by the Tribunal, contending that every aspect putforth before the Tribunal has been correctly appreciated, andtherefore, the impugned judgment and award, being legallyjustified, should not be interfered with. On the contrary, hesought enhanced compensation, as according to him, insufficientcompensation has been awarded by the Tribunal.8.Heard learned counsel for appellant/insurance companyand learned counsel for respondents No.1 to 4/originalclaimants. Perused the impugned judgment and award. 9.On re-appreciation of the entire evidence, it emerges thaton behalf of the original claimants, the widow of the deceased 1271-19-FA.odt {6}Gokuldas has adduced her evidence at Exhibit-26. Apart fromher testimony, she has also placed on record the FIR (Exhibit-31)and the spot panchanama (Exhibit-32). On studying thesedocuments, particularly the spot panchanama, this Court isconvinced that the truck had left its correct side of the road,gone onto the wrong side, and given a dash to the jeep.Therefore, with such quality of evidence on record, no fault canbe found with the Tribunal's finding that the truck driver wassolely responsible for the accident. Even in appeal, the insurancecompany has not seriously questioned such findings ofnegligence recorded by the Tribunal. 10.The only issue hotly contested by the insurance companyis that, the driver of the offending truck was not holding a validlicence, and since it amounts to breach of the policy conditions,the insurance company seeks to be absolved of liability.11.Admittedly, except for taking such a plea, the insurancecompany has neither taken effective steps nor examined theR.T.O. authority or the investigator whom it claims to haveengaged. Now, civil application has been filed seekingpermission to produce additional evidence on record, i.e. the 1271-19-FA.odt {7}communication dated 29.08.2013. However, the veryinvestigator on whose report the said communication is reliedupon has not been examined.12.It is well settled that when a specific defence is taken bythe insurance company to avoid liability on the ground of breachof policy conditions, the fundamental burden lies on theinsurance company to establish the same. Apart from placingreliance on the said communication allegedly received from theR.T.O. authority at Kolkata, there is no other material on recordso as to accept the case of the insurance company regarding thebreach of policy condition.13.Admittedly, the claimants have placed on record aphotocopy of the driving licence of respondent No. 1 at Exhibit-37. Before the Tribunal, no evidence was brought on record bythe insurance company to demonstrate that the said licence wasnot genuine, which is precisely the stand taken in the firstappeal. Consequently, the sole ground of breach of policycondition raised on appeal has no substance. This Court finds noreason to interfere with the findings and conclusions reached bythe Tribunal. 1271-19-FA.odt {8}14.Learned counsel for respondents No. 1 to 4, the originalclaimants, has sought just compensation, i.e. rather enhancedcompensation. It is contended that such enhancement can beclaimed without filing an appeal.15.In view of the ratio laid down in Nagappa GurudayalSingh and Others, (2003) 2 SCC 274 and Khimshankar Trivediand Others Vs. Kasam Daud Kumbhar and others, (2015) 4 SCC137, it is settled position that, claimants need not file distinctappeal or cross appeal seeking enhancement. 16.In the present case, a perusal of the impugned judgmentand award reveals that the computations and calculations madeby the learned Tribunal are set out in paragraphs 21 and 22 ofthe impugned judgment. This Court finds no fault in consideringthe monthly salary as Rs. 13,499, deducting one-fourth of theamount towards personal and living expenses, and applying amultiplier of 11. At the time of the accident, the deceased was51 years of age; therefore, there is no question of adding futureprospects in view of the ratio laid down in Sarla Verma andOthers vs. Delhi Transport Corporation and Another, AIR 2009SC 3104. 1271-19-FA.odt {9}17.However, it is noticed that, the Tribunal has awardedRs.25,000/- towards loss of consortium only to claimant No.1(present Respondent No.1) and Rs.10,000/- each to claimantsNo.2 to 4 (Present respondents No.2 to 4). All the claimants areequally entitled to loss of consortium in their individualcapacities as the wife, daughters, and son of the deceased. Soalso, the Tribunal has awarded Rs.10,000/- towards funeralexpenses. Similarly, the Tribunal seems to have forgotten toaward distinct compensation under the head of ‘loss of estate’.Therefore, modification in the award to that extent is alsorequired to be made. 18. In view of the ratio laid down in National InsuranceCompany Limited v. Pranay Sethi and Others, 2017 (16) SCC680, claimants are entitled for Rs. 40,000/- each, i.e. 1,60,000/-plus 30% (Rs.48,000/-) which comes to Rs.2.08,000/- towardsloss of consortium. Rs. 15,000/- plus 30% (Rs.4,500/-), whichcomes to Rs.19,500/- towards loss of estate and Rs.15,000/-plus 30% (Rs.4,500/-), which comes to Rs.19,500/- towardsfuneral expenses.
Decision
1271-19-FA.odt {10}19.Having regard to the above reasons and discussion, theaward of the Tribunal is reassessed as under:HeadAmount (Rs.)1Annual Income (Rs.13,499 x 12)As calculated by the Tribunal Rs.1,61,988/- 2.(-) 1/4 deduction towards personal and living expenses (1,61,988 – 40,497) As deducted by the Tribunal Rs.1,21,491/-4.Multiplier 11(1,21,491 x 11 )As applied by the Tribunal Rs.13,36,401/- 5.Non-pecuniary Losses:-Loss Consortium = Rs.2,08,000Loss of Estate = Rs.19,500/-Funeral Expenses = Rs.19,500/-Transportation Charges = Rs.10,000 Rs. 2,57,000/-6.Total compensation awarded Rs. 15,93,401/-7.Compensation awarded by the Tribunal Rs. 14,11,401/-8.Enhanced Compensation (15,93,401 – 14,11,401) Rs. 1,82,000/-20.In the result, the following order: 1271-19-FA.odt {11}ORDER(i)Appeal filed by the Insurance Company is dismissedwith no order as to costs(ii)Impugned judgment and award dated 17.07.2015,passed by the Member of M.A.C.T., Sangamner inM.A.C.P. No.96 of 2011 is modified.(iii)Appellant-insurance company to pay enhancedcompensation of Rs.1,82,000/- to claimants within 12weeks from today along with interest @ 8% perannum from the date of registration of claim petitiontill its realization.(iv)Modified award be prepared accordingly.(v)Respondents No.1 to 4/original claimants to pay courtfees on enhanced compensation as per rules.(vi)On deposit of the amount by Insurance Company,respondents No.1 to 4/original claimants arepermitted to withdraw the same.(vii)Civil Application No.7555 of 2025 also standsdisposed of. ABHAY S. WAGHWASE, JUDGES P Rane