High Court
Legal Reasoning
{1} FA-1-2017IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1 OF 2017The United India Insurance Company LimitedThrough Administrative Officer,Mr. Mahendra Pratapsingh Virat,Age: 47 years, Occupation: Service,C/o. Divisional Office No. 1,Osmanpura, Aurangabad....APPELLANT [Orig. Resp. No. 2]VERSUS1.Sumanbai W/o. Samindar Chavhan,Age: 37 yrs, Occu. Household.2.Pravin D/o. Samindar Chavan,Age: 21 yrs, Occ. Education.3.Prajakta D/o. Saminder Chavan,Age: 16 years, Occ. Education.All R/o. Medsi, Tq. Malegaon,Dist. Washim. At present All R/o.Nanded, Tq. & Dist. Nanded.4.Vinod S/o Prakash Rathod,Age: Major, Occ. Business,(Owner of Auto bearing No.MH-26-AC-0273),R/o. Chabrha, Tq. Hadgaon,Dist. Nanded....RESPONDENTS[Resp No. 1 to 3 are orig claimant and Resp No. 4 is original respondent No. 1]Mr. R.F. Totala, Advocate for appellantMr. B.R. Kedar, Advocate for respondents No. 1 to 3........Bhagyawant Punde {2} FA-1-2017 CORAM : NITIN B. SURYAWANSHI, J. RESERVED ON : 19th AUGUST, 2024 PRONOUNCED ON : 2nd SEPTEMBER, 2024JUDGMENT :1.Heard.2.Admit. Taken up for hearing with the consent of theparties.3.This appeal filed by Insurance Company undersection 173 of Motor Vehicles Act, challenges judgment andaward dated 03.03.2016 passed by District Judge-1 & E.O.M. ofMotor Accident Claims Tribunal, Nanded, in M.A.C.P. No.178/2012.4.On 05.03.2012 Samindar S/o of Kondu alias KoduChavan was proceeding towards railway station in auto bearingregistration No. MH-26-AC-0273. Driver of the auto was drivingthe auto in rash and negligent manner and was trying toovertake near Patel colony on Nagarjuna Hotel to AnnabhauSathe Chowk Road, Nanded. At that time, deceased fell on theroad and sustained grievous injuries. He was admitted inS.G.G.S. Hospital, Nanded, he expired on the same day duringthe treatment.Bhagyawant Punde {3} FA-1-20175.Claimants filed claim petition claiming compensationof Rs. 10,00,000/- contending that deceased was a mason andwas earning Rs. 9,000/- per month.6.Insurance Company opposed the claim by filingwritten statement denying contentions of claimants and inter aliacontending that statutory liability of the insurance company islimited, and it depends upon the premium amount paid byrespondent No. 4. The premium amount will be confirmed and ifthe premium amount is not confirmed, insurance company is notliable to pay the compensation. Breach of policy was alsoclaimed. The insurance company, therefore, denied its liability topay the compensation.The Tribunal after going through the evidence led bythe parties, partly allowed the claim and held owner andinsurance company jointly and severally liable to paycompensation of Rs. 6,61,000/- along with 9% interest perannum. Insurance Company is aggrieved by fastening of labilityon it.7.Heard learned advocate for the insurance companyand learned advocate for respondents No. 1 to 3/claimants.Though served, none appears for respondent No. 4/owner.Bhagyawant Punde {4} FA-1-20178.Learned advocate for insurance company assailed theimpugned judgment and award contending that the insurancecompany has specifically raised a defence in the writtenstatement that liability of the insurance company will beconfirmed after verifying the premium amount paid by owner ofthe offending vehicle. He submits that owner has not paid anypremium towards occupants of the offending vehicle andtherefore, insurance company is not liable to pay thecompensation amount. By tendering certified copy of insurancepolicy across bar he submits that no premium was paid for theoccupants and therefore insurance company is not liable to paythe compensation. He fairly concedes that this copy of theinsurance policy was not placed before the Tribunal. Therefore,according to him, opportunity needs to be given to the insurancecompany to prove the certified copy of the insurance policy onrecord and for that purpose matter may be remanded back tothe Tribunal by setting aside the impugned judgment and awardto the extent it holds insurance company liable to pay thecompensation.He further submits that there is no permit issued tothe offending vehicle for carrying passengers and therefore thereis breach of policy condition and this aspect is ignored by theBhagyawant Punde {5} FA-1-2017Tribunal. He submits that excess compensation is awarded bythe Tribunal, which is liable to be reduced. In support of thesesubmissions, he relied on Jagtar Singh alias Jagdev Singh vs.Sanjeev Kumar and others, (2018) 15 SCC 189 and NationalInsurance Company Ltd. vs. Balakrishnan & Another, 2013 (1)SCC 731.9.Per contra, learned advocate for claimants hasstrenuously opposed the submissions of insurance company andsupported the impugned judgment and award. He submits thatthere is no material on record to show that policy is of limitedliability. The witness of the insurance company has admitted inhis evidence that two unnamed persons are covered in thepolicy. He submits that no case is made out by insurancecompany for remand of matter and the Tribunal has properlyappreciated the evidence on record.By relying on decision of this Court in First AppealNo. 2079/2018 and 2176/2012, he submits that thoughclaimants have not preferred first appeal for enhancement ofcompensation, claimants can seek enhancement ofcompensation in view of decision of Apex Court in Nagappa Vs.Gurudayal Singh and Others, (2003) 2 SCC 274 and JitendraBhagyawant Punde {6} FA-1-2017Khimshankar Trivedi and Others Vs. Kasam Daud Kumbhar andOthers, (2015) 4 SCC 237. By relying on Kavita wd/o RavindraGurnule and Others vs. Maharashtra State Roads TransportCorporation and Others, 2019 (6) ALL M.R. 323, he submits thatincome of the deceased ought to have been assessed at Rs.6,000/- per month. Further submission is that the Tribunal haserred in awarding meager amount under the head, nonpecuniary losses and loss of estate, in terms of decision inNational Insurance Company Limited vs. Pranay Sethi andothers, (2017) 16 SCC 680. In support of his submissions, healso relied on Magma General Insurance Company Limited vs.Nanu Ram Alias Chuhru Ram and Others, 2018 DGLS (SC) 909.10.Heard learned advocate for insurance company andlearned advocate for claimants at length. Perused the record.11.Record indicates that insurance company hasexamined its employee Sadashiv Asole and has brought onrecord copy of private car liability only policy of the offendingvehicle at Exhibit-48. In cross examination he has categoricallyadmitted that in this policy liability of a driver and other twopersons is covered. These two persons include a unnamedperson and an employee of insured. On perusal of said policyBhagyawant Punde {7} FA-1-2017and considering the admission given by Mr. Asole, Tribunal hasheld that “according to this policy unlimited liability cover of twoun-named persons i.e. the employees of insured is covered.” Inthe light of admission given by Mr. Asole, employee of theinsurance company, it is clear that in the policy liability of driverand two other persons is covered. Hence, no fault can be foundwith the said finding recorded by the Tribunal.12.Much stress is laid by learned advocate for insurancecompany on the certified policy copy tendered across the bar atthe time of hearing of first appeal. He fairly conceded that saidcopy was not placed before the Tribunal at the time of hearing ofthe claim. No application for leading additional evidence is alsofiled in the present first appeal. Therefore, this copy of the policycannot be taken into consideration for decision of present appealon merits.13.No evidence is brought on record by the insurancecompany to show that there was breach of conditions of policy.In that view of the matter, Tribunal is justified in holdinginsurance company liable to pay the compensation.14.In Jagtar Singh (supra) and Balakrishnan (supra),Bhagyawant Punde {8} FA-1-2017the policy was “Act Policy” therefore the Apex Court exoneratedthe insurance company.In the case in hand, since insurance company hasadmitted in the evidence that this policy covered two personsthis ruling will not help the case of insurance company. 15.Learned advocate for claimants is justified insubmitting that just and fair compensation is not awarded by theTribunal and he is entitled to agitate this aspect in the presentfirst appeal filed by the insurance company in view of ratio inNagappa (supra) and Jitendra Trivedi (supra), which is followedby this Court in First Appeal Nos. 2079/2018 and 2176/2012.16.In the case in hand, it is claimed that deceased was amason and was earning Rs. 300/- per day, he was maintainingthe family of three persons. Admittedly, he was the sole earningmember of the family. The Tribunal without assigning any reasonhas assessed notional income of deceased at Rs. 3,000/- permonth. In view of notification published by Ministry of Labourand 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. In the present case,Bhagyawant Punde {9} FA-1-2017deceased was working as mason, hence, notional income ofdeceased needs to be assessed at Rs. 8,000/- per month.17.In Magma General Insurance (supra) it is held that,“the Motor Vehicles Act is a beneficial and welfare legislation.The Court is duty-bound and entitled to award justcompensation, irrespective of whether any plea in that behalfwas raised by the Claimant.” In this case, Apex Court hasawarded Rs. 50,000/- each to the claimants towards loss of loveand affection and Rs. 15,000/- towards loss of estate.18.In the present case Tribunal has awarded Rs.30,000/- towards loss of consortium and Rs. 30,000/- towardslove and affection, which is grossly inadequate in terms of ratioin Pranay Sethi (supra) and Magma General Insurance (supra).This Court is of the view that, Rs. 1,00,000/- needs to beawarded to claimant No. 1 towards loss of consortium and Rs.40,000/- each to claimant Nos. 2 and 3 towards loss of love andaffection as per ratio in Pranay Sethi (supra). Towards funeralexpenses and loss of estate also meager amount is awarded.Claimants are therefore entitled for Rs. 15,000 towards funeralexpenses and Rs. 15,000/- towards loss of estate. Claimants aretherefore entitled for following compensation:Bhagyawant Punde
Decision
{10} FA-1-2017Sr. No.HeadsAmount (Rs.)1Notional Income Rs. 8,000+future prospects @ 50% i.e.4,000/-12,000/-2Annual Notional Income12000 x 121,44,000/-31/3rd deduction towardspersonal expenses i.e. Rs.48,000/- (1,44,000-48000)96,000/-4Annual Notional IncomeMultiplied by multiplier of 16(96,000 x 16)15,36,000/-5Compensation under NonPecuniary Losses-i) Loss of Consortium toClaimant No. 1- 1,00,000/-ii) Loss of Love and affection toclaimant Nos. 2 and 3- 40,000/-eachiii) Funeral Expenses- 15,000/-iv) Loss of Estate- 15,000/-v)Cost of transportation- 5,000/-(already awarded by Tribunal)2,15,000/-6Total compensation to beawarded (15,36,000+2,15,000)17,51,000/-7Compensation awarded byTribunal6,61,000/-8Total Enhanced compensation(17,51000 – 6,61,000)10,90,000/-19.In the result, following order:ORDER(I)First Appeal filed by insurance company is dismissed withno order as to costs.(II)Impugned judgment and award dated 03.03.2016,passed by District Judge-1 & E.O.M. of M.A.C.T., Nandedin M.A.C.P. No. 178/2012 is modified, to the effect thatBhagyawant Punde {11} FA-1-2017claimants are held entitled for enhanced compensation ofRs. 10,90,000/- to be paid by Insurance Company andrespondent No. 4 jointly and severally within 12 weeksfrom the date of uploading of this judgment.(III)Claimants shall be entitled for interest @ 9% per annumon the enhanced compensation from the date of filing ofclaim till realization.(IV)Rest of the award is confirmed.(V)Modified award be prepared accordingly.(VI)Claimants to pay court fees on enhanced compensationas per rules. [NITIN B. SURYAWANSHI, J.] Bhagyawant Punde