High Court · 2025
Legal Reasoning
3408-21-FA.odt {1}IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.3408 OF 2021WITHCIVIL APPLICATION NO.14053 OF 2021 IN FA/3408/2021WITHCIVIL APPLICATION NO.13043 OF 2024 IN FA/3408/2021The New India Assurance Co. Ltd.,Through its In-charge (Legal Hub),D.O. No. I, Adalat Road, Aurangabad,Avinash Achyutrao Bugdani,Age 56 Yeard, Occu.: Service,Assistant Manager,R/o. Aurangabad, Dist. Aurangabad. … APPELLANT(Orig. Respondent No.2)Versus1. Dagdu S/o. Kanhaiyalal Patil, Age: 51 years, Occu.: Nil.2. Sau. Mangalabai Dagdu Patl, Age: 46 years, Occu.: Household, Both R/o. Vishwanath, Tq. Dist. Dhule.3. Rameshwar S/o. Pandharinath Gawade, Age Major, Occu.: Driver, R/o. Mohadi Upnaga, Tq Dist. Dhule. (Deleted as per Court’s Order dated 24.06.2025)4. Ratnabai Icharam Choudhary, Age Major, Occu: Owner of India Car No.MH-04/DN-8871 R/o. Gagne, Tq. Dist. Dhule.… RESPONDENTS(R-1 & 2 Orig. Claimants) ( R-3 & 4 Orig. R-1 &2)
Legal Reasoning
3408-21-FA.odt {2}......Mr. S.R. Bodade, Advocate for AppellantMr. Mahesh Patil, Advocate for Respondents No.1 and 2......CORAM : ABHAY S. WAGHWASE, J. RESERVED ON: 15 JULY 2025PRONOUNCED ON: 01 AUGUST 2025JUDGMENT:-1.This appeal is at the instance of the insurancecompany/original respondent No.3, hereby taking exception tothe judgment and award dated 23.08.2021 in M.A.C.P. No.42 of2015 filed by present respondents No.1 and 2/original claimantson account of accidental death of Vijay on 19.11.2014.BRIEF FACTS GIVING RISE TO THE APPEAL ARE AS UNDER:2.On 19.11.2014, the deceased Vijay Dagdu Patil wasriding his motorcycle bearing registration No. MH-18/AH-8260,accompanied by his friend Hiralal. While they were in thevicinity of the Dhule-Amalner Road, an Indica car bearingregistration No. MH-04/DN-8871, coming from the oppositedirection in a rash and negligent manner, and gave dash to themotorcycle of the deceased Vijay, causing grievous and fatalinjuries. His parents, i.e., his father and mother, filed AccidentClaim Petition No. 42 of 2015, holding the driver of the Indica 3408-21-FA.odt {3}car solely responsible for the accidental death of their son, andsought compensation to the tune of Rs. 10,00,000/-. It wastheir case that, deceased Vijay was the contractor of diggingwells and earned Rs.10,000/- per month. That he was barely 22years of age at the time of the accident. Due to his untimelydeath, the claimants lost their source of earning. That thedeceased Vijay was the sole bread earner of the family, andtherefore, the claimants sought compensation under variousheads from the driver of the vehicle, the owner, as well as theinsurer. 3.On issuance of notices, respondents No. 1 and 2, i.e., thedriver and owner of the vehicle, failed to appear before theTribunal; therefore, the petition proceeded ex parte againstthem. Only the insurance respondent No. 3, i.e., the presentappellant, appeared and resisted the claim, denying allcontentions raised in the claim petition, including theinvolvement of the Indica car. The insurance company has alsotaken the statutory defence that the driver of the Indica car didnot possess a valid and effective driving licence. That, there wasno evidence of negligence on the part of the Indica car driver,and that the driver of the motorcycle was solely responsible forthe accident. 3408-21-FA.odt {4}4.After appreciating the entire evidence on record, thelearned Tribunal held that the driver of the Indica car, its owner,and the insurer are jointly and severally liable to paycompensation of Rs. 10,85,000/- along with interest at 8% perannum.Feeling aggrieved by the award dated 23.08.2021, theinsurance company has preferred the instant appeal on variousgrounds mentioned in the appeal memo.5.Learned counsel for the insurance company wouldsubmit that there is incorrect appreciation of evidence as well aslaw by the Tribunal. That the Tribunal has not considered thatthe driving licence of the deceased, Vijay, was not on record;therefore, an adverse inference needs to be drawn.Consequently, the FIR was lodged at a belated stage, for whichno plausible explanation was given. He pointed out that, in fact,the FIR was against an unknown vehicle, and since there was nodistinct evidence of the involvement of the Indica car, theTribunal ought not to have directed the insurance company tobear the responsibility of compensation. He further pointed outthat the deceased, Vijay, was admittedly a bachelor; therefore, 3408-21-FA.odt {5}50% of the amount ought to have been deducted towards hispersonal expenses. However, the Tribunal failed to do so andinstead deducted only one-third of the amount towards personaland living expenses. Therefore, the entire approach of theTribunal is improper. He also claimed that the compensationawarded was exorbitant and excessive, even when the claimantsfailed to prove the actual income of the deceased, Vijay. Onthese grounds, he urges to allow the appeal by setting aside theimpugned judgment and award. 6.Learned counsel for respondents No.1 and 2/originalclaimants supported the findings and urged not to disturb thewell reasoned order passed by the Tribunal. 7.Heard learned counsel for appellant/insurance companyand learned counsel for respondents No.1 and 2/originalclaimants. Perused the impugned judgment and award. 8.On re-appreciation of the entire evidence, it is emergingthat there is no serious challenge to the occurrence of accidenton 19.11.2014, wherein deceased Vijay was riding motorcyclebearing No. MH-18/AH-8260 and the said vehicle met with anaccident with indica car bearing No. MH-04/DN-8871. 3408-21-FA.odt {6}9.Here, it is noted that there is eyewitness account fromalmost five witnesses, namely Dnyaneshwar Suklal Patil,Sandeep Daga Patil, Duryodhan Dharmi Patil, Nilesh PrabhakarPatil, and Hiralal Gopichand Pawar. Coupled with their evidenceand taking into account the FIR, though lodged at a belatedstage, and the investigation revealing the involvement of theIndica car, there is no reason to doubt its involvement. Spotpanchanama clearly shows that there is negligence on the partof the indica car driver in giving dash to the motorcycle. there isno reason to doubt the prosecution’s story, despite the FIR beinglodged against an unknown vehicle, particularly in light of thestatements of independent witnesses.10.Another ground agitated before this Court by theinsurance company is that the claimants failed to produce thedriving licence for the motorcycle rider, and there is anadmission on behalf of the father that he is unable to furnish acopy of the licence. Therefore, learned counsel for the insurancecompany urges this Court to draw an adverse inference
Decision
3408-21-FA.odt {7}11.Going by the law settled in National Insurance CompanyLimited v. Swaran Singh, (2004) 3 SCC 297, wherein it hasbeen held that the mere absence of a licence, or the productionof a fake or invalid licence at the relevant time, is not a validdefence available to the insurer against the insured or a thirdparty. The burden lies on the insurer to establish a breach of thepolicy. It is categorically observed that mere non-production oflicence or evidence by the insured cannot be considered asdischarging of burden of the insurer. Having regard to suchobservations of the Hon’ble Apex Court, this Court finds nomerit in the ground raised that an adverse inference should bedrawn on failure of the father of the deceased to produce thedriving licence on record. No such automatic adverse inferencecan be drawn in view of the above settled law.12.As regards the third ground of challenge that theTribunal has failed to deduct 50% towards personal expenses isconcerned, it appears that the Tribunal has deducted one-thirdof the income amount. In view of the ratio laid down inNational Insurance Company Limited Vs. Pranay Sethi andOthers, (2017) 16 SCC 680, since the deceased was a bachelorat the time of the accident, 50% ought to have been deducted.Therefore, this ground has substance and requires consideration. 3408-21-FA.odt {8}13.Learned counsel for the insurance company alsosubmitted that there was contributory negligence on the part ofboth vehicles. However, apart from such plea, there is noevidence to support such a submission. On visiting spotpanchanama and statement of eyewitness, it is a clear case thatthe Indica car is solely responsible for the accident. Therefore,the question of contributory negligence does not arise.14.The last ground raised before this Court is that an excessand exorbitant income was considered in the absence ofevidence. On perusal of the impugned judgment, it is emergingthat claimants had set up a case that deceased Vijay was acontractor of digging wells and earning Rs.10,000/- per month.In paragraph 13, the Tribunal has categorically noted that thereis no evidence in this regard; therefore, notional income of Rs.5,000/- per month has been considered. This Court finds thatthe consideration of such income is justified.15.In view of the above discussion, this Court is of theopinion that the Tribunal has erred in deducting 1/3 amounttowards personal and living expenses from the total income ofthe deceased, which should ought to have been deducted 50%. 3408-21-FA.odt {9}16.Having regard to the above reasons and discussion, theaward of the Tribunal is reassessed as under:HeadAmount (Rs.)1Annual Income (Rs.5,000 x 12) Rs.60,000/- 2.Future Prospects 40% i.e. 24,000(60,000 + 24,000) Rs.84,000/-3.(-) 1/2 deduction towards personal and living expenses (84,000 – 42,000/-) Rs.42,000/-4.Multiplier 18(42,000 x 18 ) Rs.7,56,000/- 5.Non-pecuniary Losses:-Loss Filial Consortium = Rs.44,000/-Loss of Estate = Rs.16,500/-Funeral Expenses = Rs.16,500/- Rs. 77,000/-6.Total compensation awarded Rs. 8,33,000/-7.Compensation awarded by the Tribunal Rs. 10,85,000/-8.Excess Compensation (10,85,000 – 8,33,000) Rs. 2,52,000/-16.In the result, the following order: 3408-21-FA.odt {10}ORDER(I)The First Appeal is partly allowed as under:(II)Impugned judgment and award dated 23.08.2021,passed by the Member of M.A.C.T., Dhule in M.A.C.P.No.42 of 2015 is modified.(III)The over all compensation is reduced fromRs.10,85,000/- to Rs.8,33,000/-, which shall carryinterest @ 8% per annum.(IV)The excess amount of Rs.2,52,000/- along withproportionate interest accrued during the pendency ofthe present Appeal shall be refunded to theAppellant/Insurance Company.(V)The balance amount along with interest, if any, shallbe released to respondents No.1 and 2/originalclaimants in terms of the order passed by the ClaimsTribunal.(VI)Modified award be prepared accordingly. (VI)The Appeal is allowed in above terms. (VII)Civil Application Nos.14053 of 2021 and 13043 of2024 are also stand disposed of ABHAY S. WAGHWASE, JUDGES P Rane