High Court
Legal Reasoning
{1} 13-fa2689-2015 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD FIRST APPEAL NO. 2689 OF 2015The Branch Manager,New India Assurance Company Ltd.,Shivaji Cross Road, Shrirampur,Tal: Shrirampur, Dist. Ahmednagar.….APPELLANT [Orig. Respondent No. 2]VERSUS1. Jyoti Kailas Palande Age: 33 years, Occu: Household.2. Kum. Swati D/o Kailas Palande, Age: 15 years, Occu: Education (10th) 3. Swapnil S/o Kailas Palande Age: 13 years, Occu: Education (8th)4. Sachin S/o Kailas Palande, Age: 11 years, Occu: Education (6th) 5. Shri. Shravan S/o Tulaji Palance Age: 69 years, Occu: Nil.6. Sau. Latika Shravan Palande, Age: 64 years, Occu: Nil. Respondent No. 1 for herself and for Respondent Nos. 2 to 4 as natural mother guardian. All are resident of Kolhar Khurd, Tal: Rahuri, Dist. Ahmednagar. At present Davkhar Road, Shrirampur, Tal: Shrirampur, Dist. Ahmednagar.…..RESPONDENTS [Original Claimant No. 1 to 6]7. Shri. Sahebkha Miyabhai Shaikh Age: Major, Occu: Business R/o. Shivajinagar, Kolhar Bk., Tal. Rahata, Dist. Ahmednagar. ...RESPONDENT [Orig. Respondent No. 1]Bhagyawant Punde
Legal Reasoning
{2} 13-fa2689-2015…..Mr. Vinodkumar R.Mundada , Advocate for AppellantMr. Shaikh Mazhar A. Jahagirdar, Advocate for respondents No. 1to 6....... CORAM : NITIN B. SURYAWANSHI, J. DATE : 23rd SEPTEMBER 2024JUDGMENT :1.Heard.2.Admit. Taken up for final hearing with the consent ofparties.3.This appeal filed under Section 173 of Motor VehiclesAct, takes exception to the judgment and award dated02.04.2015 passed by Motor Accident Claims Tribunal,Shrirampur in M.A.C.P. No. 93 of 2014.4.Facts giving rise to the present first appeal can bestated in nutshell as follows:On 10.05.2014, Kailas Palande had gone to villageKolhar Bk on Hero Honda motorcycle No. MH-17-P-2877, forrepairing electric motor. When his motorcycle reached upto thepetrol pump of Kolhar Bk., one TATA Sumo jeep No. MH-17-AJ-4485, driven by Salim Vajeer Sayyed in rash and negligentmanner dashed the motorcycle, due to which Kailas sustainedBhagyawant Punde {3} 13-fa2689-2015severe head injury and other injuries. He was admitted inPravara Hospital, Loni and from there he was taken to NobelHospital, Ahmednagar. During treatment, on 11.05.2014, heexpired. Respondents No. 1 to 6/claimants, therefore, filed claimpetition contending that Kailas was having agriculture land atvillage Kolhar Bk and he possesses five to six cows. He wasearning Rs. 15,000/- from milk business and Rs. 10,000 to12,000 per month from mason work. Thus, he was earning Rs.25,000/- per month. Claimants, therefore, claimed compensationof Rs. 10,00,000/-.5.Insurance Company by filing written statementopposed the claim contending that on account of delay of 17days in registering FIR, involvement of offending jeep issuspicious and doubtful. Without prejudice to this submission itis submitted that driver of sumo jeep committed breach of policyconditions as he was not holding valid and effective drivinglicense. The insurance company, therefore, prayed for rejectionof claim petition.6.The Tribunal after recording evidence, partly allowedthe claim and awarded compensation of Rs. 8,17,000/- inclusiveof no fault liability amount along with interest @ 9% p.a.. BeingBhagyawant Punde {4} 13-fa2689-2015aggrieved by the same, insurance company has filed the presentappeal.7.Heard learned advocate for Insurance Company andlearned advocate for claimants/respondents No. 1 to 6.8.Learned advocate for the insurance company assailedthe impugned judgment and award contending that claimantshave failed to prove involvement of offending jeep in theaccident. FIR of the alleged accident has been registered after adelay of 17 days and collusive claim is filed by the claimants togain compensation from the insurance company. Driver of theoffending jeep was not made party respondent nor he wasexamined to prove negligence. The Tribunal has wronglyassessed age of the deceased and thereby applied wrongmultiplier. No panchnama of offending jeep is conducted by thepolice authorities. All these aspects raise serious doubt aboutinvolvement of offending vehicle. Hence, Tribunal ought to haveexonerated insurance company. In support of his case he reliedon Pukh Raj Bumb vs. Jagannath Atchut Naik and Others,2014(4) Mh.L.J. 447, Bajaj Allianz General Insurance Co. Ltd.,Aurangabad vs. Meera W/o Raju Choudhary and Others, 2014(6)Mh.L.J. 556, First Appeal No. 2973/2013 (New India AssuranceBhagyawant Punde {5} 13-fa2689-2015Company Ltd. vs. Laxman S/o. Dadarao Karpe and Others) andFirst Appeal No. 3421 of 2011 (Faridabegum Shaikh Yousuf andOthers vs. Daulat Khan Sardar Khan (Died) through L.Rs andanother).9.Learned advocate for the claimants, on the otherhand, supported the impugned judgment and award to theextent it holds insurance company liable to pay thecompensation. He submits that since charge sheet is filedagainst driver of the offending jeep, Tribunal is justified inholding insurance company liable to pay the compensation.He further made a grievance that the Tribunal hasnot awarded just and fair compensation. According to him,notional income of the deceased assessed by the Tribunal at Rs.3,000/- per month is too meager and it should have beenassessed on higher side. The Tribunal has failed to appreciatethat deceased was maintaining family of six members andtherefore, on this ground also assessment of notional income of3,000/- per month is wrong. He, therefore, submits thatcompensation awarded by the Tribunal needs to be enhanced inthe present case. 10.Heard learned advocate for insurance company andBhagyawant Punde {6} 13-fa2689-2015learned advocate for claimants at length. Perused the record andcitations relied on by the parties.11.It is a matter of record that charge sheet is filedagainst driver of the offending jeep, therefore, merely becauseFIR was registered after a delay of 17 days that by itself is notsufficient to jump to a conclusion that offending vehicle was notinvolved in the accident. Claimants by relying on theinvestigation papers and the charge sheet have discharged theirinitial burden of proving that offending vehicle was involved inthe accident. It is settled legal position that claimants have toestablish their case on the touchstone of preponderance ofprobability and not by standard of proof beyond reasonabledoubt. In this view of the matter, claimants have dischargedprima facie burden of proving that offending jeep was involved inthe accident. Admittedly, insurance company has not led anyevidence to disprove this fact.12.In First Appeal No. 2973 of 2013, this Courtconsidering the fact that in the FIR complete number of theoffending car was not mentioned and no eye witness accountwas brought on record has held that, “offending vehicle was notinvolved in the accident.”Bhagyawant Punde {7} 13-fa2689-2015In the case in hand, in the FIR, number of theoffending vehicle is stated.13.In First Appeal No. 3421 of 2011, this Court in thefacts of that case held that, offending vehicle was not involved inthe accident. This decision is rendered in different facts and doesnot further the case of the appellant.14.In Meera Choudhary (supra), investigation of theaccident was carried out by police inspector, who was notauthorized to do so. The police inspector on the basis ofinformation from discreet source had concluded that offendingvehicle was involved in the accident. However, no statement ofsaid discreet source/statement of any person was annexed to thefinal report nor said person was examined before the Court. Inthese facts, this Court held that, “claimants failed to establishinvolvement of vehicle insured with the insurance company.”It appears from the record that along with chargesheet statement of one eye witness namely Prakash Lokhande isalso recorded. In this view of the matter, this judgment is of noassistance to the case of appellant.15.In Pukh Raj Bumb (supra), claimants therein failed toprove panchnama and sketch on record, therefore, DivisionBhagyawant Punde {8} 13-fa2689-2015Bench of this Court rejected the claim.Such are not the facts of the present case. Hence,this decision also is of no assistance to the case of appellant.16.There is no merit in the contention of insurancecompany that age of the deceased was wrongly assessed by theTribunal. Admittedly, in the post mortem notes, age of thedeceased is stated to be 38 years. Even in the death report ageof the deceased is stated as 38 years. Considering this, it cannotbe said that the Tribunal has committed any error in holding thatdeceased was aged 38 years at the time of accident andapplying multiplier of 15.17.It is settled law that even without filing separateappeal or cross-objection claimants can seek enhancement ofcompensation in view of judgments of Hon’ble Apex Court incase of Nagappa Vs. Gurudayal Singh and Others, (2003) 2 SCC274 and Jitendra Khimshankar Trivedi and Others Vs. KasamDaud Kumbhar and Others, (2015) 4 SCC 237.18.There appears substance in the in the contention ofclaimants that Tribunal has erred in assessing notional income ofthe deceased at Rs. 3,000/- per month. In view of notificationpublished by Ministry of Labour and Employment under sectionBhagyawant Punde {9} 13-fa2689-20154(1B) of the Employee’s Compensation Act, 1923, in Gazette ofIndia on 31.05.2010, the Central Government has specifiedminimum monthly wages of unskilled workers at Rs.8,000/- p.m.Considering the fact that deceased was maintaining the family ofsix persons, it is difficult to believe that he was earning Rs. 100/-per day at the time of accident. The Tribunal ought to haveassessed notional income of deceased at Rs. 8,000/- per month.19.In the light of aforesaid reasons, claimants are heldentitled for following compensation.Sr.No.HeadsAmount in Rs.1Monthly Salary8,000/- 2Future Loss of income (8,000 x 12)96,000/-3Less 1/5th towards personalexpenses i.e. 19,200/- (96000-19200)76,800/-4Multiplier of 15 (76,800 x 15)11,52,000/-5Non pecuniary damages granted byTribunal:i) Consortium to claimant No. 1 Rs.1,00,000/-ii) Love and affections Rs. 30,000each i.e. Rs. 1,80,000/-iii) Loss of care and guidance toclaimants No. 3, 4, and 5 Rs.25,000/- each i.e. Rs. 75,000/-iv) Funeral Expenses Rs. 20,000/-v) Conveyance Rs. 10,000/-3,85,000/-Total Compensation needs to beawarded15,37,000/-Bhagyawant Punde {10} 13-fa2689-2015Less Compensation awarded byTribunal8,17,000/-Total Enhanced Compensation (Rs.15,37,000 - 8,17,000)7,20,000/-20.In the result, following order:ORDER(i)First Appeal filed by Insurance Company is herebydismissed.(ii)Impugned Judgment and award dated 02.04.2015passed by Motor Accident Claims Tribunal, Shrirampurin M.A.C.P. No. 93 of 2014 is modified to the effect thatclaimants are held entitled for enhanced compensationof Rs. 7,20,000/- along with interest @ 9% p.a. fromthe date of claim petition till its realization.(iii) Insurance Company shall pay the enhancedcompensation along with accrued interest in theTribunal within 12 weeks from the date of uploading ofthis judgment. On such deposit, claimants shall beentitled to withdraw the same.iv)Rest of the award is maintained.v)Claimants to pay Court fees on enhanced compensationas per rules. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde