High Court · 2024
Legal Reasoning
FA-4253-2016.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 4253 OF 20161]Sou. Shakuntala W/o Shivaji GadamwarAge: 41 Years, Occu: Household2]Sandeep S/o Shivaji Gadamwar,Age: 20 Years, Occu: Education3]Sou. Marubai W/o Gangaram Gadamwar,Age: 70 Years, Occu: Household,All R/o: Annabhau Sathe Nagar, Tamloor,Tq. Degloor, Dist. Nanded...APPELLANTS [Ori. Claimants]VERSUS1]Samuel S/o Yellappa Yellugoi,Age: Major, Occu: Business,R/o: House No.6074, Netaji Nagar,Zaheerabad, Dist. Meadak (Andhra Pradesh)2]Shriram General Insurance Com. Ltd.,Through it’s Manager, E-8, EPIP, RIICOIndustrial area, Sitapura, Jaipur,Rajasthan – 302022 … RESPONDENTS [Ori. Respondents].…Mr. Avinash D. Hande, Advocate for appellants Mr. Abhijit Chaudhari, Advocate for respondent No.2Non for the Respondent no. 1..…CORAM: Y. G. KHOBRAGADE, J.DATE:27 MARCH 2024 1 of 8
Legal Reasoning
(( 2 ))FA-4253-2016O R D E R :- 1.Heard Mr. Avinash Hande, learned Counsel for theappellants and Mr. Abhijit Choudhari, learned Counsel for respondentNo.2. Though the Respondent no. 1 was duly served with notice, butremain absent. 2.The appellants have invoked jurisdiction of this Courtunder Section 173 of the Motor Vehicles Act, 1988 challenging thejudgment and award dated 08.08.2016, passed by the learnedMember, Motor Accident Claims Tribunal, Biloli, District Nanded, inM.A.C.P. No.31 of 2013. 3.For the sake of brevity, the parties to the present appealare hereinafter referred to as the claimants and the respondents.4.In short, it is the case of the claimants that on09.04.2013, Shivaji Gadamwar, husband of claimant No. 1, father ofclaimant No. 2 and son of claimant No. 3, was working as Coolie onTruck bearing No. AP-23-Y-0240. Respondent No. 1 is the owner ofsaid Truck, which was insured with the Respondent No. 2–Insurance 2 of 8 (( 3 ))FA-4253-2016Company. On fateful day, said Truck had been in the bank of LendiRiver for loading sand. After the sand was loaded, Truck wasproceeding towards village Degloor. The husband of claimant No.1was sitting on top of the Truck along with other labourers. The TruckDriver driven the truck in high speed, rashly and negligently, due towhich at about 4.30 p.m., said Truck turned turtle near the field ofShri Hanmant Patil at Tamloor Fata to Lendi River therebyCoolies/labourers fell down from on road and they burried under thesand and due to asphyxia they died. Said incident was reported to thePolice by one Sanjay Kashinath Farse by lodging an F.I.R. bearingCrime No. 65 of 2013 against the Truck driver for the offencespunishable under Sections 279, 304-A, 337 and 338 of the IndianPenal Code. Necessary investigation was conducted and oncompletion of investigation, charge-sheet came to be filed against theTruck driver. 5.According to the claimants, at the relevant time, deceasedShivaji was 42 years old and was doing Coolie work. The deceasedwas earning Rs.300/- per day i.e. Rs.9,000/- per month. Thereforeclaimants prayed for compensation to the tune of Rs.12,00,000/-. 3 of 8 (( 4 ))FA-4253-20166.Respondent No.1 – Truck owner chose not to appear,hence, matter proceeded ex-parte against him. Respondent No. 2-Insurance Company filed written statement at Exh.18 and deniedclaim of complainants. According to respondent No.2 – InsuranceCompany, on the day of incident, the Truck driver was not havingvalid driving licence. The claimants claimed exorbitant claim. Furtherthere is breach of policy, hence, prayed for dismissal of the claimpetition. 7.On basis of rival pleadings, the learned Member, M.A.C.T.,framed issues at Exh.13. The claimant No.1 filed her evidenceaffidavit at Exh.-26 and produced documentary evidence Exh.27 to41.8.On 08.08.2016, the learned Member, M.A.C.T., passed theimpugned judgment and award and granted compensation to thetune of Rs. 5,51,500/- in all heads by considering notional income ofthe deceased of Rs.4,500/- per month. Being dissatisfied from saidjudgment and award, the claimants are before this Court seekingenhancement of compensation. 4 of 8 (( 5 ))FA-4253-20169.Adv. Avinash Hande, learned Counsel for the claimantssubmits that the deceased Shivaji was 45 years old at the time ofincident and said fact was not challenged by respondent No.2 -Insurance Company. Further, the deceased was earning Rs.300/- perday i.e. Rs.9,000/- per month i.e. Rs.1,08,000/- per year. Therefore,the learned Member ought to have granted higher compensation thanthe award amount. However, the learned Member wrongly considerednotional income of the deceased Rs. 4,500/- monthly, hence, prayedfor quashing and setting aside of impugned award to the extent ofcompensation. To buttress this submissions, he relied on the case ofVimal Kanwar and others Vs. Kishore Dan and others – 2013 AIR(Civil) 636.10.Per contra, the learned Counsel appearing for respondentNo.2 submits that though the claimants have claimed that thedeceased was earning Rs.9,000/-, however, the claimants have notexamined Employer of the deceased, nor the claimants produced anydocumentary evidence to prove that the deceased was drawing wagesto the tune of Rs.9,000/- monthly in the relevant year. Therefore, inabsence of documentary evidence of the income of deceased, the 5 of 8 (( 6 ))FA-4253-2016learned Member, M.A.C.T. considered the notional income ofdeceased of Rs.4,500/- monthly. and awarded reasonablecompensation, hence, prayed for dismissal of the appeal. 11. The learned Counsel for respondent No.2 placed relianceon the case of Sanjeev Kumar Samrat Vs. National Insurance Co.Limited and others – (2014) 14 SCC 243, wherein, the Hon’ble ApexCourt has observed in paragraph No. 23 as under:-“23. It is worthy to note that sub-clause (i)(c) refers to anemployee who is being carried in the vehicle covered by thepolicy. Such vehicle being a goods carriage, an employee has tobe covered by the statutory policy. On an apposite reading ofSections 147 and 167 the intendment of the Legislature, as itappears to us, is to cover the injury to any person including theowner of the goods or his authorised representative carried in avehicle and an employee who is carried in the said vehicle. It isapt to state here that the proviso commences in a different way.A policy is not required to cover the liability of the employeeexcept an employee covered under the 1923 Act and that too inrespect of an employee carried in a vehicle. To put it differently,it does not cover all kinds of employees. Thus, on a contextualreading of the provision, schematic analysis of the Act and the1923 Act, it is quite limpid that the statutory policy only coversthe employees of the insured, either employed or engaged byhim in a goods carriage. It does not cover any other kind ofemployee and therefore, someone who travels not being anauthorised agent in place of the owner of goods, and claims tobe an employee of the owner of goods, cannot be covered bythe statutory policy and to hold otherwise would tantamount tocausing violence to the language employed in the Statute. 6 of 8 (( 7 ))FA-4253-2016Therefore, we conclude that the insurer would not be liable toindemnify the insured.”12.In the case in hand, the claimants raised very limitedgrievance about meagre compensation of Rs.5,51,500/- instead ofRs.12,00,000/-. On face of record it appears that, the Claimant No.1Sou. Shakuntala had filed evidence affidavit at Exh.26 and produceddocumentary evidence at Exh. 27 to 41. However, documentaryevidence do not prove income of the deceased Shivaji Gadamwar.13. The Claimant No.1 herself deposed that her husbandShivaji was working as a Coolie for loading and unloading of sand.Therefore, it appears that the deceased was working either withrespondent No.1 Truck owner or someone contractor. Therefore,burden was casted upon the claimants to examine the employer of thedeceased, but the claimants failed to examine the employer of thedeceased. Admittedly, no documentary evidence produced on recordto prove monthly income of the deceased to the tune of Rs.9,000/-per month. 14.On perusal of the impugned judgment, it appears that thelearned Member, M.A.C.T. considered notional income of the 7 of 8 (( 8 ))FA-4253-2016deceased at the rate Rs.4,500/- per month and by considering the ageof deceased as 45 years, applied the multiplier 13 as per the ratio laiddown in the case of Sarla Verma and others Vs. Delhi TransportCorporation and another – (2009) 6 SCC 121. The learned Member,M.A.C.T. ascertained compensation i.e. 4,500 x 12 = 54,000/- p. a.,(-) 1/4th amount deducted as personal expenses of the deceasedsince the deceased was 45 years old, the multiplier was applied as 13.Rs. 40,500 X 13 = Rs.5,26,500/- + Rs. 25,000/- towards love andaffection. The total of above calculation is Rs.5,51,500/-. Therefore, Ido not find that the findings recorded by the learned Member,M.A.C.T., while calculating the income of the deceased is illegal,perverse and bad in law. Therefore, no interference is called at thehands of this Court to disturb the findings.15.Accordingly, the First Appeal is dismissed.16. No order as to costs. Parties to bear their own costs.[ Y. G. KHOBRAGADE, J. ]SMS 8 of 8