High Court
Legal Reasoning
7 4205-16-FA.odtCourt has rightly observed in Nagashetty (supra) that incase submission to the contrary is accepted, then everytime an owner of a private car, who has a licence to drive alight motor vehicle, attaches a roof carrier to his car or atrailer to his car and carries goods thereon, the light motorvehicle would become a transport vehicle and the ownerwould be deemed to have no licence to drive that vehicle. Itwould lead to absurd results. Merely because a trailer isadded either to a tractor or to a motor vehicle it by itselfdoes not mean that driver ceased to have valid drivinglicence. In our considered opinion, even if such a vehicle istreated as transport vehicle of the light motor vehicle class,legal position would not change and driver would still have avalid driving licence to drive transport vehicle of light motorvehicle class, whether it is a transport vehicle or a privatecar/tractor attached with trolley or used for carrying goodsin the form of transport vehicle. The ultimate conclusion inNagashetty (supra) is correct, however, for the reasons asexplained by us.” The case of driver, owners of tractor and trolley issquarely covered by the above ratio.15.There is no substance in the contention of insurancecompany that since the decision in Mukund Dewangan (supra) isreferred to Constitution Bench, the same would not be of any helpto the driver and owners of tractor and trolley. It is well settled thattill the decision is reversed or modified by Larger Bench inreference, it holds the field.16.In view of the evidence on record and considering thedate of incident i.e. 15/04/2009, the Tribunal has rightly heldnotional income of deceased as Rs.3,500/- per month. Sincedeceased was 42 years old, Tribunal has rightly applied multiplier of14. However, without assigning any reason Tribunal has failed toSVH 8 4205-16-FA.odtaward compensation towards future prospectus, which needs to beawarded at the rate of 25% of computed income, in terms of ratio inNational Insurance Co. Ltd. v. Pranay Sethi and Others, 2017(16) SCC 680. As per the calculation in this decision, futureprospectus at the rate of 25% of monthly income of deceasedcomes to Rs.875/-, therefore, monthly income, after adding futureprospectus would be Rs.3,500/- + Rs.875/- = Rs.4,375/- per month.17.Considering the number of dependent claimants is five,Tribunal ought to have deducted 1/4th amount in view of ratio inSmt. Sarla Verma and Others v. Delhi Transport Corporationand Another, AIR 2009 SC 3104. However, Tribunal haserroneously deducted 1/3rd amount towards loss of dependency.Tribunal has awarded Rs.75,000/- towards consortium to widow only.As per ratio in Magma General Insurance Co. Ltd. v. Nanu Ramalias Chuhru Ram and Others, AIR 2019 SC (Supp) 906, loss ofconsortium of Rs.44,000/- is payable to each claimant. Since thereare five claimants, 5 x 44,000/- = Rs.2,20,000/- is payable towardsconsortium.18.Without assigning reasons Tribunal has failed to awardcompensation towards non-pecuniary losses. Rs.16,500/- is payableto claimants towards loss of estate. Funeral expenses at the rate ofRs.16,500/- is payable to claimants. However, Tribunal has awardedRs.25,000/- towards funeral expenses and the same is not liable tobe disturbed. Therefore, total non- pecuniary losses would beSVH 9 4205-16-FA.odtRs.2,20,000/- (loss of consortium) + Rs.16,500/- (loss of estate) +Rs.25,000/- (funeral expenses) = Rs.2,61,500/-.19.In view of the aforestated discussion, claimants areentitled for following compensation:-Sr.No.HeadsAmount (Rs.)1Notional income computed by TribunalRs.3,500/- + future prospectus at the rate of25% of computed income Rs.875/-Rs.4,375/-2Monthly dependency compensation afterdeduction towards personal and livingexpenses (Rs.4375 – Rs.1094)Rs.3,281/-3Annual dependency Compensation (Rs.3,281 x 12)Rs.39,372/-4Pecuniary Losses (Annual dependencymultiplied by multiplier) (Rs.39,372 x 14)Rs.5,51,208/-5Non-pecuniary Losses:-Loss of Consortium Rs.44,000/- to eachclaimants (Rs.44,000 x 5) = Rs.2,20,000/- Loss of Estate = Rs.16,500/-Funeral Expenses = Rs.25,000/-(as already granted)Rs.2,61,500/-6Total compensation needs to be awarded Rs.8,12,708/-7Compensation awarded by the TribunalRs.4,92,000/-Total Enhanced Compensation (Rs.8,12,708 – Rs.4,92,000)Rs.3,20,708/-20.In the result, following order:-O R D E R(I)First Appeal No.4400/2023 is allowed.(II)The finding recorded by the Tribunal thereby exonerating insurance company from paying compensation is hereby set aside. The insurance company is held liable to pay the compensation amount to the claimants.SVH 10 4205-16-FA.odt(III)Compensation amount, if any, deposited by the driver and owners of tractor and trolley be refunded to them, if not already withdrawn by claimants .(IV)First Appeal No.4205/2016 is allowed.(V)Claimants are held entitled for enhanced compensation of Rs.3,20,708/-. The enhanced compensation shall carry interestat the rate of 7.5% per annum from the date of filing of claim petition, till 2017 and thereafter interest at the rate of 6% per annum till realization of the amount. (NITIN B. SURYAWANSHI, J.)SVH
Arguments
1 4205-16-FA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.4205 OF 20161.Smt. Gitabai Vasudeo BhilAge: 41 Years, Occupation: Household2.Chi. Mohan Vasudeo BhilAge: 17 Years, Occupation: Education3.Chi. Amar Vasudeo BhilAge: 13 Years, Occupation: Education4.Sau. Ritabai Manoj BhilAge: 25 Years, Occupation: Household5.Smt. Bhagabai Tarachand BhilAge: 65 Years, Occupation: Household(Applicant No.1 is natural guardian of applicant Nos.2 & 3 as are her children and minor)All R/o Indiranagar ZopadpattiVillage Satod, Tal. Yawal,Dist. Jalgaon… AppellantsVersus1.Shri. Narendra @ Bhika Prakash BadgujarAge: 32 Years, Occupation: Driver2.Shri. Kishor Eknath BadgujarAge: 48 Years, Occupation: Tractor Owner3.Sau. Bharati Prakash BadgujarAge: 50 Years, Occupation: Trolley OwnerAll R/o Sakali, Tal. Yawal, Dist. Jalgaon4.The Bajaj Allianz General Insurance Co. Ltd.Through Manager,R/o 2nd Floor, Panna Heights, Opp. Omkareshwar Mandir, Jainagar, Jalgaon,Tal. And Dist. Jalgaon … Respondents…Mr. M.M. Bhokarikar, Advocate for AppellantsMr. S.S. Bora, Advocate for Respondent Nos. 1 to 3Mr. Mohit Deshmukh, Advocate for Respondent No.4…WITH FIRST APPEAL NO.4400 OF 2023SVH 2 4205-16-FA.odt1.Narendra @ Bhika Prakash BadgujarAge: 38 Years, Occu: Agriculture,R/o: Sakali Taluka Yawal,Dist. Jalgaon2.Kishor Eknath BadgujarAge: 56 Years, Occu: Agriculture,R/o: As above.3.Bharti Prakash BadgujarAge: 52 Years, Occu: Agriculture,R/o: As above....Appellants (Original RespondentNos.1 to 3)Versus1.Geetabai Vasudeo BhilAge: 41 Years, Occu: HouseholdR/o: Indiranagar Zopadpatti,Satod, Taluka Yawal,District Jalgaon2.Mohan Vasudeo BhilAge: 17 Years, Occu: Education3.Amar Vasudeo BhilAge: 13 Years, Occu: Education(Respondent Nos.2 and 3 under guardianship of Respondent No.1 Geetabai their natural mother)4.Ritabai Manoj BhilAge: 25 Years, Occu: HouseholdR/o: Indiranagar Zopadpatti,Satod, Taluka Yawal,District Jalgaon5.Bhagabai Tarachand BhilAge: 65 Years, Occu: HouseholdR/o: As above6.The Bajaj Allianz General Insurance Co.Ltd.Through its Manager,R/o: 2nd Floor, Panna Heights, Opposite Onkareshwar Mandir,Jainagar, Jalgaon…Respondents…Mr. S.S. Bora, Advocate for AppellantsMr. M.M. Bhokarikar, Advocate for Respondent Nos.1 to 5Mr. Mohit Deshmukh, Advocate for Respondent No.6...SVH 3 4205-16-FA.odt CORAM : NITIN B. SURYAWANSHI, J. RESERVED ON : 18th JUNE, 2024PRONOUNCED ON : 26th JUNE, 2024JUDGMENT : 1.Admit. Heard finally with the consent of the parties.2.Both these appeals arise out of the judgment and awarddated 26/07/2016, passed by the Chairman, Motor Accident ClaimsTribunal, Jalgaon, in M.A.C.P. No.362/2009.3.For the sake of convenience parties are referred to as‘claimants’, ‘driver and owners of tractor and trolley’ and ‘insurancecompany’.4.On 15/04/2009, at about 03:30 p.m. Vasudeo TarachandBhil accompanied by Ashok was proceeding on foot at YawalChopada Road near village Vadhoda. At that time tractor bearingNo. MH-19-P-3407 attached with trolley No. MH-19-P-7596, gavedash to deceased Vasudeo and Ashok. Due to the dash Vasudeosustained multiple injuries and succumbed to the same soon afteraccident.5.Claimants mother, widow and children of deceasedVasudeo filed M.A.C.P. No.362/2009 seeking compensation ofRs.5,00,000/- for death of Vasudeo. They claimed that at the time ofdeath deceased was 42 years old and owned bullock-cart. He usedto transport agricultural produce in his bullock-cart to market placeand earn net income of Rs.15,000/- per month. All claimants wereSVH 4 4205-16-FA.odtdependent on him. Insurance company, driver of tractor and ownersof tractor and trolley are therefore, jointly and severally liable to paycompensation of Rs.5,00,000/- to claimants.6.Driver, owners of tractor and trolley filed writtenstatement and denied the claim contending that driver was drivingtractor-trolley in moderate speed and by observing rules of traffic,and deceased and his companion were at fault. Tractor and trolleywere insured with insurance company and therefore, insurancecompany is liable to pay the compensation.7.Insurance company by filing written statement deniedthe claim. It was claimed that driver was not holding valid andeffective driving license to drive tractor-trolley. There was nocompliance of Sections 134(c) and 158(6) of the Motor Vehicles Act.Without prejudice to the said contention, it is claimed that deceasedwas rash and negligent and hence, the accident took place.8.Tribunal after recording evidence partly allowed theclaim, holding that driver and owners of tractor and trolley arejointly and severally liable to pay compensation of Rs.4,92,000/-(including no-fault liability amount of Rs.50,000/-), with interest atthe rate of 7.5% per annum from the date of filing of petition till it’srealization and dismissed the claim as against insurance company.The compensation amount was apportioned between claimants.9.Driver and owners of tractor and trolley have filed FirstAppeal No.4400/2023 questioning the exoneration of insuranceSVH 5 4205-16-FA.odtcompany and claimants have filed First Appeal No.4205/2016 forenhancement of compensation.10.Heard learned advocates for respective parties atlength. Perused the written notes of arguments filed by claimantsand the record.11.Learned advocate for driver and owners of tractor andtrolley by relying on Mukund Dewangan Vs. Oriental InsuranceCompany Limited, (2017) 14 SCC 663, submits that Tribunal haserred in recording finding that since driver of tractor-trolley did notpossess license for trolley, there is a breach of condition ofinsurance policy and hence, insurance company is not liable to paycompensation. He submits that said finding is contrary to the ratioin Mukund Dewangan (supra). Even otherwise dash was given bytractor and not by the trolley and since tractor is covered byinsurance policy, insurance company is liable to pay thecompensation.12.In reply, learned advocate for insurance companysubmits that judgment in Mukund Dewangan (supra) is referred tothe Constitution Bench and therefore, the same may not be of anyhelp to driver and owners of tractor and trolley. He submits thatTribunal has categorically held that there is nothing on record toshow that trolley bearing No.MH-19-P-7596 was insured. Therefore,the Tribunal is justified in exonerating insurance company.13.Learned advocate for claimants strongly urged forSVH 6 4205-16-FA.odtenhancement of compensation submitting that the Tribunal haswrongly held notional income of deceased at Rs.3,500/- per month.In fact, the notional income ought to have held at the rate ofRs.5,000/- per month as there is evidence of widow of the deceasedwhich shows that deceased was doing transportation of agriculturalproduce through his bullock-cart and was earning Rs.15,000/- permonth. In support of his submissions, he relied on Savitha v. M/sChodamandalam M.S. General Insurance Co. Ltd. andOthers, [AIR 2020 SC 3224] and Kajal v. Jagdish Chand andOthers, [AIR 2020 SC 776]. According to him, minimum wagespayable to skilled workman were held to be Rs.4846/- per month bythe Apex Court. Further submission is that the Tribunal has failed totake into consideration future prospects of the deceased and awardcompensation under that head. According to him just and faircompensation is not awarded by the Tribunal and claimants areentitled for enhanced compensation of Rs.10,67,500/-.14.Perusal of record indicates that Tribunal has exoneratedinsurance company on the ground that trolley was not insured andthe driver at the relevant time was not holding license to drivetrolley. In Mukund Dewangan (supra), Apex Court has held,“43.Section 10(2)(a) to (j) lays down the classes of vehiclesto be driven not a specific kind of motor vehicles in thatclass. If a vehicle falls into any of the categories, a licenceholder holding licence to drive the class of vehicle can driveall vehicles of that particular class. No separateendorsement is to be obtained nor provided, if the vehiclefalls in any of the particular classes of Section 10(2). ThisSVH