High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 3649 OF 2018WITH X-OBJECTION NO. 101 OF 2022 IN FA/3649/2018 WITH CIVIL APPLICATION NO. 14879 OF 2018NEW INDIA INSURANCE CO. LTD., THR ITS DIV. MANAGER,AURANGABADVERSUSRANJANA BAJIRAO KAKAD AND ORSMr. A. B. Kadethankar, Advocate for the appellant Mr. Umain Sayyed h/f Mr. K. N. Shermale, Advocate respondent Nos.1 and 2.CORAM: R. M. JOSHI, J.DATE: 16th JANUARY, 2024P.C. :-1.Being aggrieved by the judgment and award dated 04/07/2018passed by the Member, Motor Accident Claim Tribunal, Sangamner inMACP No. 145/2012, insurer has preferred appeal bearing No. 3649 of2018 and the claimants filed Cross-Objection bearing No. 101/2022under Section 173 of Motor Vehicle Act (for short ‘MV Act’).2.Parties are referred to as claimants, insurer and owner for the sakeconvenience. 3.The facts which led to the filing of present appeal as well as Cross-Objection can be narrated in short as under:931.fa3649.18.odt1 of 8
Legal Reasoning
(i)Claimants are parents of deceased Shrihari who died on03/05/2012 in motor vehicular accident occurred on 02/05/2012involving motorcycle bearing No. MH-12 HM 6055 driven by the deceasedhimself and truck bearing No. RJ-11 GA-5008. The accident occurred atBopodi signal chowk on Mumbai Pune express Highway within thejurisdiction of village Khadaki, Taluka and District Pune. On the faithfulday the deceased was going on motorcycle and when he reached to thespot of the accident the offending truck came from behind in high speedand gave dash to the motorcycle resulting into cause of death on thespot. It is alleged that the accident has occurred due to the negligenceon the part of the driver of the truck, offence came to be registeredagainst the driver of the truck with concerned Police Station. Deceasedwas software engineer and working in private company drawing salary ofRs.36000/- per month. It is also claimed that he was also earning fromthe agriculture. A total compensation of Rs.80 lakhs was sought underdifferent heads.(ii)Owner of the offending vehicle though was served with thesummons failed to remain present before Tribunal and hence the petitionproceeded ex-parte against him. The insurer filed written statement atExhibit 15 claiming that the deceased was riding motorcycle in themiddle of the road carelessly and was responsible for the occurrence of931.fa3649.18.odt2 of 8 the accident. The insurer denied all contentions of the claimantsincluding income and compensation claim. It is a case of insurer that thedriver of the offending truck had no valid and effective license at therelevant time and therefore there is a breach of terms and conditions ofthe policy which absolves the liability of the insurer to pay thecompensation to the claimants.(iii)After framing of the issue at Exhibit 17 claimants led evidence andrelied upon police papers including first information report (Exhibit 23),spot panchanama (Exhibit 25), postmortem note (Exhibit 29) etc. For thepurpose of proving income of the deceased form No.16 (Exhibit 53)submitted by MNC Amdocs Development Center India Pvt. Ltd., Pune wasrelied upon. The said document is proved by examining Mr. Khristi PW-2.He also proved salary breakup (Exhibit 52).(iv)Learned Tribunal by passing impugned judgment and awardgranted compensation of Rs.22,76,114/- with interest at the rate of 8%per annum. The insurer and claimants being aggrieved by the saidjudgment and award have preferred appeal and cross-objection.4.Learned counsel for the insurer submits that the Tribunal hascommitted error in restricting the contributory negligence of the931.fa3649.18.odt3 of 8 deceased to the extent of 20%. By referring to the statement of thecleaner of the truck it is submitted that from his statement it isabundantly clear that the deceased suddenly came in front of the truckat signal which has resulted into occurrence of the accident and hencehis contributory negligence cannot be less than 50%. It is submitted thatsince the said statement of the cleaner was placed on record by theclaimant himself, the Tribunal has rightly taken the same intoconsideration, but failed to appreciate and hold the contributorynegligence of the deceased in the occurrence of accident adequately. Hefurther submits that the driver of the offending truck was not made partyto the claim petition and as such the claim petition is not maintainablefor non joinder of necessary parties. It is also sought to be argued thatunder personal accident scheme some benefits are received by the heirsof the deceased and hence the said amount ought to have been deductedfrom the compensation.5.Learned counsel for the claimants submits that the Tribunal hascommitted error in relying upon the statement of cleaner of the theoffending truck without examining him and giving opportunity of cross-examination of this witness to the claimants. It is submitted that inabsence of any evidence led by the insurer, it was improper on the partof the Tribunal to hold the contributory negligence of the deceased and931.fa3649.18.odt4 of 8 hence the said finding deserves interference. He also soughtenhancement of the claim on the ground that the Tribunal has committederror in considering the form No.16 in respect of assessment year 2012-2013 when admittedly the deceased died on 03/05/2012. Thus,according to him on the basis of salary proved by the claimants theamount of compensation ought to have been determined.6.On the basis of oral and documentary evidence placed on recordclaimants have proved that on 02/05/2012 and accident occurredinvolving motorcycle driven by the deceased and offending truck.Claimants relied upon police papers indicating registration of crimeagainst the driver of the offending vehicle claimant (PW-1) (Exhibit 20)This witness was duly cross-examined by the insurer wherein suggestionwas given which was consistent to the written statement, to the effectthat the deceased was riding the motorcycle in the middle of the roadand as he did not take his motorcycle to the side of the road accidentoccurred. Considering the written statement as well as suggestion of theinsurer, this is the case sought to be made out by the insurer before theTribunal. As against this the statement of the cleaner recorded underSection 161 of Cr.P.C. relied upon by the Tribunal seeks to give alltogether different version of the occurrence of the accident. The saidstatement is completely inconsistent to the stand taken by the insurer931.fa3649.18.odt5 of 8 before the Tribunal. In such circumstances, in absence of examination ofthe said witness, the Tribunal ought not to have relied upon it andrecorded any finding holding deceased having contributed to theoccurrence of the accident. The findings recorded by the learned Tribunalin this regard are inconsistent to the evidence on record hence deserveinterference. Once the claimants have discharged their burden of provingthe negligence on the part of the driver of the offending vehicle, the onushas shifted on owner and insurer to prove otherwise. In the instant caseowner has remain absent and hence all his defences were taken over bythe insurer. Admittedly, insurer did not examine any witness and nor ledany other evidence to prove its contention about the negligence on thepart of the deceased in causing of the said accident. Having regard tothese facts the findings recorded by the Tribunal holding deceasedresponsible to the extent of 20% in causing of the said accident deservesto be set aside.7.It is sought to be argued on behalf of the insurer that the claimantshad received the compensation under personal accident scheme. Apartfrom the fact that any such compensation received would not disentitlethe claimants for receiving compensation under M.V. Act from thetortfeasor, there is absolutely no evidence in order to show that any suchcompensation was ever received by the claimants. The cross-931.fa3649.18.odt6 of 8 examination of claimant No.1 is also silent on this aspect. Thus, thisCourt finds no substance in the said contention raised by learned counselfor the insurer.8.Objection is also sought to be raised about non joinder of driver asparty to the claim petition. In this regard it is pertinent to note that it iswithin the right of the claimants to raise claim against all or any of thejoint tortfeasors. The consequence of non joinder of driver would be onlyto the effect that no compensation can be directed to be paid by thedriver of the offending vehicle. This would not affect the maintainabilityof the claim. In any case it was open for the insurer to call the driver orany other person including cleaner of truck as witness to prove the thenegligence of the deceased in the occurrence of the accident. Insurerhaving failed to examine him, now cannot make any grievance in thisregard.9.The claimants are seeking enhancement of the compensation onthe ground that the Tribunal has committed error in considering form No.16 for the assessment year 2012-2013 by contending that the deceaseddied on 02/05/2012. The assessment year is always next year of thefinancial year meaning thereby the form 16 for the assessment year2012-2013 was indicating income of the year 2011-2012. This Court931.fa3649.18.odt7 of 8 therefore finds no error committed by learned Tribunal in taking intoconsideration form No. 16 which indicates the income of the deceased. Insuch circumstances, no substance is found in the contention of theclaimants in this regard.10.There is no challenge to rest of the judgment and award fromeither side. Having regard to the above discussion, hence followingorder:ORDER(i)First Appeal No. 3649 of 2018 stands dismissed.(ii)Cross-Objection No. 101 of 2022 is partly allowed.(iii)The findings of the Tribunal about 20%contributory negligence of the deceased to the extent of20% is hereby set aside. It is held that the driver ofoffending vehicle was solely responsible for theoccurrence of the accident and as such the owner andinsurer are liable to pay the entire compensation jointlyand severally to the claimants.(iv)The balance amount of compensation be depositedin this Court within six weeks from today.(v)The claimants are permitted to withdraw the same.11.Pending application, if any, stands disposed of.(R. M. JOSHI, J.)ssp931.fa3649.18.odt8 of 8