High Court
Facts
FA-2183-2017+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2183 OF 20171.Smt. Swaroopa wd/o Nitin ChitlangeAge: 32 years, Occ: Household,R/o: A-2, Sweekrut Residency,Behind Apex Hospital, BassaiyeNagar, Aurangabad2.Kum. Vidhi d/o Nitin Chitlange,Age: 6 years, Occ: Nil,Minor u/g of her real motherappellant No. 13.Sou. Sunita W/o Nandkishor ChitlangeAge: 53 years, Occ: Household,R/o. As above4.Nandkishor s/o Sitaram Chitlange,Age: 58 years, Occ: Service,R/o. As above...AppellantsVersus1.Sk. Isak s/o Sk. Rashid,Age: Major, Occu. Driver,R/o. Near Electric D.P. KadriNagar, Misarwadi, Aurangabad2.Suresh S/o Sampatrao Nade,Age: Major, Occu: Business,R/o. Misarwadi, Aurangabad3.New India Insurance Co. Ltd.Through its Divisional Manager,Divisional Office at Adalat Road,Aurangabad...RespondentsWITHFIRST APPEAL NO. 3213 OF 2016The New India Assurance Company LtdD.O. No. 1, Adalat Road, AurangabadPage 1 of 19
Legal Reasoning
FA-2183-2017+.odtDwarkanath Sirsat and Ors Vs. Shivanand HamumantappaBisirotti & Ors, ALL MR 2016-5-2013. Thus, according tohim, there would be no reason or justification in orderto enhance compensation as sought by the claimants. Onthe point of breach of conditions of policy, it iscontended that on the basis of driving license it canbe seen that the driver was not having license to drivetractor with trolley and as such, he was not havingvalid license to drive goods transport vehicle andhence, it amounts to breach of condition of policy. Inthe result, according to him, the insurer cannot beheld liable for the payment of compensation.12.Claimant No. 1 i.e., wife of the deceased inher evidence has deposed about the negligence of thedriver of the tractor in occurrence of the tractor. Tosubstantiate the said contentions reliance is placed onpolice papers as noted herein above. Except for thevague suggestions that the driver of the tractor wasnot responsible for the accident, nothing is elicitedfrom her cross-examination in order to discardtestimony of this witness. It is settled law that onthe basis of genuine police papers claimants arePage 9 of 19 FA-2183-2017+.odtpermitted to prove factum of accident. In this case,there is no doubt raised in respect of genuinness ofpolice papers, hence, there is no impediment to relyupon it. Once the initial burden is discharged by theclaimants to prove the factum of accident, the onusshifts on owner and insurer to prove otherwise. Thoughdriver Sk. Isak was examined, his testimony is notsufficient to hold that he was driving the vehicle withutmost care and that he was not responsible for theoccurrence of accident.13.On the point of causing of injuries to thedeceased in the said accident as well as medicaltreatment, evidence led by the claimants of Dr.Takalkar and Dr. Sahastrabuddhe clearly shows that onaccount of sustainment of injuries in the accident hewas admitted in hospital and was treated till hisdeath. No serious dispute is made by other side inrespect of deceased sustaining injuries in the accidentin question. Claimants have also examined pharmacists,as noted herein above, in order to prove expensesincurred towards medicines. Accountants of Bajaj aswell as Ruby Hospitals were examined in order to provePage 10 of 19 FA-2183-2017+.odttreatment bills. The claimants thus were successful inproving the medical expenses on the basis ofdocumentary evidence to the extent of Rs. 27,78,493/-.Learned Tribunal has also considered the said evidenceon record and has rightly accepted proof thereof.14.On the point of income claimants havespecifically contended about deceased having degree inlaw in the year 2005 and since then practicing in HighCourt and other Courts. Thus, on the date of accidenthe had six years practice under his belt. The claimantshave relied upon income tax returns filed forassessment year 2009-10, 2010-11, 2011-12. In order toprove the same, income tax inspector Mr. Mandale, Exh.80 examined.15.Claimant No. 1 in her testimony has deposedabout qualification and profession of deceased and alsohas stated about the income tax returns being filed byhim. The factum of filing of income tax returns by thedeceased is proved through Ashok Mandale, DW. 80. Hewas income tax inspector attached to Aurangabad Officeat the relevant time. He deposed about PAN card numberof the deceased and returns filed in respect of hisPage 11 of 19 FA-2183-2017+.odtincome i.e. Exh. 81 to 83. In the cross-examinationconducted by owner and the driver it is suggested thatthere is no certificate over the Exh. 81 to 83. LearnedTribunal has accepted proof of income tax returns andin absence of any case being made out by other side,creating any doubt about genuineness thereof, thisCourt also finds it appropriate to accept the same asthe one filed with Income Tax Department. Income TaxIspector admitted that last income tax return is filedonline after his death i.e., on 30.07.2011. Perusal ofthe cross-examination of this witness as well asclaimant No. 1 no suggestion is found to have been madein respect of the income tax return for the assessmentyear 2011-2012 to be bogus or fabricated or eveninflated. Needless to record that the income of thedeceased person in the hands of the heirs is alsotaxable and hence, it is obligatory on their part tosubmit income tax returns. There is no suggestion madeto the claimant no. 1 that she or any other claimanthad filed bogus income tax returns of the deceased byshowing inflated income for the purpose of claimingcompensation. Had such question put to the claimant orincome tax inspector it would have been open forPage 12 of 19 FA-2183-2017+.odtclaimants to justify it. Without raising any doubtabout correctness or genuineness of last returns, itwas not open for learned Tribunal to discard the samemerely on ground that it is filed after death ofdeceased. Prejudice has been caused to claimants bysuch observations, without case being made out to thateffect by other side. 16.Learned Tribunal has refused to accept thesaid returns filed on the ground that the same is filedafter death of the deceased. There is nothing broughton record by the owner or insurer to show that theincome tax returns of assessment year 2011-12 isfabricated/inflated document. For the purpose ofascertaining income of the deceased it is just andnecessary to see as to the what income he would haveearned during the relevant period. There is no disputemade with regard to the income tax returns of theassessment year 2009-10, 2010-11. There is nothing onrecord to show that the professional work of deceasedhad decreased during the relevant year. On thecontrary, cross-examination conducted of the claimantsshow that deceased was having work at High Court asPage 13 of 19 FA-2183-2017+.odtwell as in other Courts. It is matter of commonknowledge that with experience professional like orAdvocate gets more and more work. Unless there isevidence to show decline in his work, there would be nojustification to hold so.17.In case of V. Subbulakshmi and Ors (supra)Hon’ble Apex Court has upheld refusal of considerationof income tax returns filed after death of deceased.From the perusal of the said judgment it is not clearon what ground the document was kept out ofconsideration. Merely because the income tax returns isfiled after death of assessee, it cannot be treated asnot reflecting his true income. In respectful view ofthis Court, for want of knowledge of facts andcircumstances in which said judgment is passed, itcannot be applied to the present case. As discussedabove, there is absolutely no material on record toindicate that the income of deceased reflected in theincome tax retuurn for A.Y. 2011-12 is not genuine andhence not acceptable. 18.Income of the deceased for the year 2009-10was Rs. 1,46,210/- whereas income for the assessmentPage 14 of 19 FA-2183-2017+.odtyear of 2010-2011 was Rs. 2,55,182/- which shows morethan 50% increase in his income. As compared to theincome tax filed of the year 2011-12 his income is seenRs. 3,22,260/- per annum. By simple mathematicalcalculations, the said increase is below 50% and assuch not disproportionate as compared to previousyear’s income. In absence of any evidence to show thatthe deceased did not work during financial year 2010-11i.e. assessment year 2011-12 or that his practicedeclined, there was no justification in notconsidering the said income for the purpose ofcomputation of quantum of compensation. Hence, incomeof deceased is accepted @ Rs. 3,22,260/- pa. Thededuction towards personal expenses of deceased andmultiplicant adopted by the Tribunal is not in dispute.After deduction of 1/3rd personal expenses of deceased,multiplicant comes to Rs. 2,14,840/-. Deceased was aged28 years and hence, multiplier of 17 is applied. Theamount of compensation towards loss of income works outto be Rs. 36,52,280/-.19.The Tribunal has granted additional 50% ofincome towards future prospects relying upon in case ofRajesh and Others Vs. Rajbirsisingh and Ors, 2013 ACJPage 15 of 19 FA-2183-2017+.odt1403. The Hon’ble Apex Court in case of Pranay Sethi(supra) has held that in case of self employed deceasedperson an addition of 40% of the established incomeshould be granted towards future prospectus. Byfollowing the said dictum instead of 50% as granted bythe Tribunal, the said future prospectus needs to beconsidered upto 40%. Learned Tribunal has granted Rs.25,000/- towards consortium and Rs. 25,000/- towardslove and affection. By following the dictum of Hon’bleApex Court in case of Magma General Insurance Co. LtdVs. Nanu Ram @ Chuhru Ram and Others, (2018) 18 SCC130, this Court finds it appropriate to grant Rs.40,000/- each to wife, child and parents towards filialconsortium. Hence, amount of compensation payable isdetermined as follows:Sr.No. HeadsCalculations inRs.1.Loss of income Rs.3,00,776/- x 17multiplier (total income Rs. 3,00,776(after deducting personal expenses) +40% future prospects Rs.85,936)51,13,192/-2.Medical Expenses23,78,493/-3.Filial Consortium (Rs. 40,000/-)to each claimants1,60,000/-4.Funeral Expenses15,000/-5.Loss of Estate15,000/-Total76,81,685/-20.Claimants are also challenging the interestPage 16 of 19 FA-2183-2017+.odtrate awarded by the Tribunal @ 6% pa and insteadclaiming 9% interest on the amount of compensation. Itis discretion of the Tribunal to award interest orcompensation amount towards denial/withholding thereof.There is nothing to show that the discretion isexercised non judiciously. Further there is no materialon record to indicate any other average rate ofinterest was prevailing during relevant period. Thesurvey of judgments of Hon’ble Apex Court on the pointof payment of interest indicates that the rate ofinterest gratned @ 12% earlier was reduced to theextent of 9%, owing to the changes in economy. ReserveBank of India has reduced rate of interest and Banksstarted offering interest @ 9% p.a. with passage oftime rate of interest offered by Banks has furtherdecreased. Having regard to the same, this Court findsno reason to cause interference therein.21.Insurer’s contentions about absolvement fromthe liability rests upon the case that the driver ofthe tractor was not holding valid and effective licenseat the relevant time. In this regard, written statementfiled by the insurer though states about driver was notPage 17 of 19 FA-2183-2017+.odthaving valid and effective license, however, does notspecifically takes plea that he was not competent todrive tractor with trolley attached to the same. Thereis a suggestion made by the insurer to the driver Sk.Isak about he not holding valid and effective license,which is denied by him. As against this, driver andowner have examined Mr. Sonavane clerk working withRTO, Aurangabad who specifically deposed about thedriver of tractor having valid license to drive tractorwith trolley attached thereto. In the cross-examinationinsurer was not able to bring any admission on recordto prove otherwise. Even otherwise, the judgments incase of Mukund Dewangan it is held that a vehicle belowweight of 7500 kg would be light motor vehicle. In theinstant case, there is no evidence to show that theweight of tractor with trailor exceeds it. Apart fromthis, in case of Sant Lal (supra) it is held that it isnot necessary to obtain endorsement on license forlight motor vehicle since the tractor with trolley islight motor vehicle. Considering the facts on recordand law settled by Hon’ble Apex Court, this Court findsno reason to absolve insurer from liability to paycompensation as breach of condition of policy is notPage 18 of 19
Arguments
FA-2183-2017+.odtThrough its Authorized SignatoryRavikant Kadam,Age: 26 years, Occ: Service,R/o. Aurangabad...AppellantVersus1.Smt. Swaroopa wd/o Nitin ChitlangeAge: 32 years, Occ: Household,R/o: A/2, Sweekrut Residency,Behind Apex Hospital, BassaiyeNagar, Aurangabad2.Kum. Vidhi d/o Nitin Chitlange,Age: 6 years, Occ: Nil,Minor u/g of her real motherpresent Respondent No. 13.Sou. Sunita W/o Nandkishor ChitlangeAge: 53 years, Occ: Household,R/o. A/2, Sweekrut Residency,Behind Apex Hospital, BassaiyeNagar, Aurangabad4.Nandkishor s/o Sitaram Chitlange,R/o. A/2, Sweekrut Residency,Behind Apex Hospital, BassaiyeNagar, Aurangabad5.Sk. Isaq s/o Sk. Rashid,Age: 45 years, Occu. Driver,R/o. Near Electric D.P. KadriNagar, Misarwadi, Aurangabad6.Suresh S/o. Sampatrao Nade,Age: 50 years, Occ: Business,R/o. Misarwadi, Aurangabad...Respondents***Mr. A. P. Bhandari, Advocate for Appellant inFA/2183/2017 and for Respondent Nos. 1 to 4 inFA/3213/2016Mr. M. M. Ambhore, Advocate for Appellant in FA No.3213/2016 and for Respondent No. 3 in FA/2183/2017Page 2 of 19 FA-2183-2017+.odtMr. S. P. Boinwar h/f Mr. A. N. Raut, Advocate forRespondent Nos. 1 and 2 in FA/2183/2017***CORAM:R.M. JOSHI, J.DATE:JANUARY 18, 2024JUDGMENT:1.These Appeals are preferred under Section 173of Motor Vehicle Act, 1988 (for short “M. V. Act”) byoriginal claimants and insurer taking exception to thejudgment and order dated 23.12.2015 passed in MACP No.729/2011.2.By consent of both contesting parties, appealsare taken up for final hearing at the stage ofadmission.3.Parties are referred to by their nomenclaturein the original proceedings for the sake ofconvenience.4.Claimants are wife, daughter and parents ofNitin Chitlange who died in motor vehicular accidentoccurred on 23.03.2011. Owner and driver of theoffending vehicle as well as insurer were made party tothe claim Petition. It is the case of the claimantsthat on 23.03.2011 at around 10.45 am deceased Nitin,Page 3 of 19 FA-2183-2017+.odtan Advocate by profession was proceeding on hismotorcycle bearing no. MH-26-J-8683 from High Court toother Courts at Aurangabad. When he reached nearcompound wall of High Court in front of Lokmat Bhavanone tractor bearing no. MXV-5527 which was proceedingtowards Baba Petrol Pump gave dash in the negligentmanner to his motorcycle from back side. In the saidaccident, Nitin sustained serious injuries.Immediately, he was taken to MGM Hospital, where he wasgiven first aid. He thereafter was admitted inKamalnayan Bajaj Hospital and treated there for theperiod of 23.03.2011 to 07.04.2011 and further from18.04.2011 to 22.05.2011. In between he was shifted toApex Hospital for treatment up to 22.05.2011. He wasagain required to be taken to Kamalnayan Bajaj Hospitalwhere during treatment he breath last on 12.07.2011.According to the claimants, accident has occurred dueto rash and negligent driving by driver of the tractor.Crime bearing no. I-57/2011 came to be registered withMukundwadi Police Station against him. According to theclaimants, deceased Nitin aged about 28 years,completed his degree in law in year 2005 and startedpractice in High Court and other Courts. He wasPage 4 of 19 FA-2183-2017+.odtearning Rs. 27,668/- per month with annual income ofRs. 3,32,260/-. He was the only son of his parents i.e.claimant nos. 3 and 4. Deceased had one daughter agedabout one year at the relevant time. Claimantscontended about incurring medical expenses of Rs. 30lacs. Under different heads compensation of Rs.2,29,30,000/- was claimed.5.Owner and driver of tractor filed commonwritten statement at Exh. 14 denying the claim andaverments made by the claimants in the Petition. Theyspecifically denied age, income and occupation of thedeceased. Involvement of the vehicle in the accident isalso denied. It is claimed that accident has occurreddue to the negligence of the deceased. It is furtherclaimed that tractor was duly insured with insurerunder valid insurance policy for the period of23.03.2011 to 21.03.2012. It is also claimed thatdriver was having valid driving license.6.Insurer filed written statement at Exh. 15denying the claim of the claimants. It is specificallyaverred that the driver of the tractor did not havevalid and effective license and hence, for breach ofPage 5 of 19 FA-2183-2017+.odtterms of the policy, insurer is not liable to paycompensation.7.Issues were framed at Exh. 16. Claimantexamined Claimant No. 1 Swaroopa Chitlange, Exh. 18,Dr. Bhavan Takalkar, Exh. 37, Dr. Sahastrabudde, Exh.45, Amit Zalte, Accountant from Kamalnayan BajajHospital, Exh. 49. Pharmacist Patil, Exh. 53,Pharmacist Shah, Exh. 54, Pharmacist Mantri, Exh. 54,Mr. Ambekar, Accountant of Ruby Hospital, Pune, Exh.69, Pharmacist Gandhi, Exh. 75, Mr. Mandale, Income TaxInspector, Exh. 80.8.Apart from oral evidence, claimants alsoplaced reliance on documentary evidence i.e., certifiedcopy of charge-sheet Exh. 19, FIR Exh, 20, spotpanchnama, Exh. 21, inquest panchnama, Exh. 22,provisional pm report Exh. 23, pm report, Exh. 24, formcomp. AA Exh. 25, insurance cover note, Exh. 26,driving license of respondent no. 1 Sk. Isak, Exh. 27,RC book of tractor and trolly Exh. 28 and 29, MLC Exh.38, discharge card and apex hospital, exh. 39, MLC Exh.46, authority letter issued by Ruby Hall Clinic, PuneExh. 70, discharge card exh. 71, income tax returns forPage 6 of 19 FA-2183-2017+.odtthe assessment year 2009-10, 2010-11 and 2011-12 exh.81 to 83.9.Driver Sk. Isak examined himself at Exh. 85and also led evidence of Milind Sasane Exh. 94, clerkfrom RTO Office and Usha Dhamne, Exh. 103. Owner anddriver of tractor relied upon driving license Exh. 97,MDL information Exh. 98 and insurance cover note Exh.26-A. Insurer did not lead any oral or documentaryevidence.10.Learned Counsel for the claimants submits thatthe Tribunal has committed error in not consideringincome tax returns filed for the assessment year 2011-12 and on the basis of evidence on record, there was noreason or justification for not considering the same.According to him, Tribunal has also erred in notgranting compensation towards future prospects andcompensation granted is not adequate. He also claimedthat rate of interest granted by the Tribunal is low ascompared to the rate of interest of the year 2011 to2015. In response to the submissions made by thelearned Counsel for the insurer about absolvement ofthe liability of the insurer on the ground that thePage 7 of 19 FA-2183-2017+.odtdriver of the tractor was not holding valid andeffective license, it is submitted that the Hon’bleApex Court in case of Mukund Dewangan Vs. OrientalInsurance Company Ltd, (2017) 14 SCC 663 has held thatthe transport vehicle, the gross weight which does notexceed 7500 kg would be a light motor vehicle and alsomotor car or tractor or a roadroller, unladen weight ofwhich does not exceed 7500 kg. The driver havinglicense class of light motor vehicle is competent todrive transport vehicle. According to him, similar isthe view taken in case of Sant Lal v. Rajesh andOthers, (2017) 8 SCC 590.11.Learned Counsel for the insurer opposed thesaid submissions by contending that the learnedTribunal has rightly discarded the income tax returnfiled for the year 2011-12 as the same were filed afterthe death of deceased. In respect of his submissions,he placed reliance Bajaj Alliance General Insurance Co.Ltd v. Rambha Devi and Others, 2023 SCC OnLine SC 1165,V. Subbulakshmi and Others v. S. Lakshmi and Another,(2008) 4 SCC 224, National Insurance Co. Ltd vs. PranaySethi and Others, (2017) 16 SCC 680 & SumitraPage 8 of 19
Decision
FA-2183-2017+.odtproved.22.In view of this, this Court finds no substancein challenge to the impugned judgment and award soughtby insurer. Hence, First Appeal No. 3213 of 2016 isdismissed. Since claimants have succeeded in seekingenhancement of compensation, First Appeal No. 2183/2017is partly allowed. Hence, the order:O R D E R(a)First Appeal No. 2183/2017 is partlyallowed. Impugned judgment and award dated23.12.2015 passed in MACP No. 729/2011 ismodified. Total compensation is Rs.76,81,685/- as determined above.(b)Claimants to pay Court fee on enhancedcompensation as per rules.(c)Rest of judgment and award to remainunchanged.(d)Amount deposited (along with interest) byinsurer is permitted to be withdrawn byClaimants.(e)No order as to costs.(f)In view of disposal of Appeals, pendingapplications, if any, are also disposed of.(g)The difference of compensation be depositedwithin a period of six weeks. (R. M. JOSHI, J.)MalaniPage 19 of 19