Mr. A. G. Kanade, Advocate for v. C.)
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-1- FA-598-2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 598 OF 2022United India Insurance Co. Ltd.Through its Divisional Manager,Osmanpura, Aurangabad.… Appellant(Orig. Respondent No.1.)Versus1.Bashir Ahemad S/o. Khajamiya Shaikh (Dead)2.Shakila Begum W/o. Bashir Ahemad,Age : 43 years, Occu. : Household, 3.Shaikh Shahid S/o. Bashir Ahemad, Age : 19 years, Occu. : Student, 4.Huma Kausar D/o. Bashir Ahemad,Age : 16 years, Occu. : Student, Minor U/g of her real motherRespondent No.2.All R/o. Plot No.14, Lane No.1,Near Asifiya Colony, Ghati,Aurangabad. 5.Sanjay Asaram Mohite, Age : Major, Occu. : Owner & Driver, R/o. Bhavan Manik Nagar, Sillod, Tq. Sillod, Dist. Aurangabad.… Respondents(R-1 to 4, Orig. Claimants)(R-5 Orig. R-2)……Mr. A. G. Kanade, Advocate for Appellant (Through V. C.).Mr. G. R. Syed, Advocate for Respondent Nos.2 to 4....…CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :11 JULY 2025PRONOUNCED ON :22 AUGUST 2025 -2- FA-598-2022JUDGMENT : 1.Insurance Company is hereby taking exception tojudgment and order dated 13.08.2015 passed by learned Member,Motor Accident Claims Tribunal, Aurangabad in M.A.C.P. No. 716of 2012 awarding compensation to the claimants by partlyallowing the claim and directing original respondent nos.1 and 2 tojointly and severally pay Rs.12,42,300/- along with interest at therate of 9% per annum. 2.Learned counsel for Insurance Company pointed outthat, above numbered claim petition was set up by respondentNos.1 to 4, who were heirs of deceased Shaikh Asif Ahemad onaccount of his demise in road traffic accident dated 15.07.2012. Itis pointed out that, above claim was resisted by InsuranceCompany, who was arraigned as respondent no.1 in original claimpetition by setting up case of breach of policy and secondly, learnedTribunal has not deducted amount towards personal expenses.Therefore, according to him, there is infirmity in the judgment andorder of Tribunal and hence, he urges for allowing the appeal tosuch extent. 3.Per contra, learned counsel for claimants fairlysubmitted that, if the court is inclined to allow the appeal, then
Legal Reasoning
-3- FA-598-2022order of pay and recovery be passed and appeal to that extent beallowed by modifying judgment and order of Tribunal.4.After hearing the above submissions and on goingthrough the impugned judgment dated 13.08.2015, it is emergingthat, claim petition was set up by heirs of deceased Shaikh AsifAhemad, who was allegedly traveling from Vaijapur to Aurangabadon motorcycle bearing no. MH-20-BS-8343 and was allegedly givendash by another motorcycle bearing no.MH-19-AR-4283. Case setup by deceased that deceased was skilled worker and undervarious heads claim of Rs.6,00,000/- was asserted.5.The above claim petition was contested by onlyInsurance Company by tendering the written statement at Exh.19denying sole responsibility of rider of offending motorcycle insuredby it. It was asserted that deceased was also driving his motorcyclein rash and negligent matter. 6.Learned counsel for appellant has taken this courtthrough his case set up in Tribunal, more particularly in para 7 ofthe judgment, wherein Insurance Company had denied the liabilityon the ground that driver of the offending motorcycle bearing no.MH-19-AR-4283 was not holding valid driving licence and this -4- FA-598-2022amounted to breach of condition of policy and thereby liability ofInsurance Company is denied.7.It is his serious objection that in spite of breach ofpolicy, Insurance Company has been liable to pay compensationalong with owner rider of offending motorcycle. 8.After going through the impugned judgment, ittranspires that, while answering issue no.1 on the point of rashand negligence driving, learned Tribunal has taken into accountevidence of PW1 coupled with investigation papers and hasrecorded a finding that accident took place due to rash andnegligent driving of offending motorcycle bearing No.MH-19-AR-4283.9.As regards to stand taken regarding breach of policy,there seems to be discussion in answering issue no.2, whichcommences from para 12, wherein defence of breach of conditionof policy has been set up by present appellant - InsuranceCompany. Learned Tribunal has observed in para 12 that havingtaken such stand, Insurance Company under obligation to provewith positive evidence that driver of motorcycle bearing MH-19-AR-4283 was not holding valid driving licence. While answering -5- FA-598-2022the said issue, learned Tribunal has discussed the evidence ofR.T.O. Officer, who was summoned by Insurance Company, whodeposed on their behalf i.e. Milind Arjunrao Sasane, who is in hisevidence at Exh.68 testified that, R.T.O. authority has not issuedlicence in the name of Sanjay Asaram Mohite, who was the rider ofthe motorcycle bearing No.MH-19-AR-4283. In the light of hisevidence, learned counsel for Insurance Company seems to havemade submission that Insurance Company has discharged itsburden of proving their stand of breach of policy. Therefore,insurance company is exonerated from the liability to pay thecompensation.10.By issuing notice Exh.73 rider of offending vehicle wasalso called upon to produce driving licence. However, Exh.73placed on record would show that, said notice was not served uponrider of motorcycle bearing No. MH-19-AR-4283. 11.Resultantly, learned Tribunal has held that, InsuranceCompany has failed to discharge the obligation to prove that riderwas not having valid licence and as such there is breach of policy.Surprisingly, in para 14 of the judgment, learned Tribunal has heldthat witness R.T.O. Officer cannot be said to be a witness on thepoint of valid licence. -6- FA-598-202212.In the considered opinion of this court, very witness ofR.T.O. authority, who is competent to issue licence, when hasstepped into witness box and has testified that his office has notissued any licence and in spite of being called when rider of themotorcycle bearing No.MH-19-AR-4283 failed to contest orproduce valid licence, the best available evidence which wasadduced by Insurance Company, in the considered opinion of thiscourt, ought to have been appreciated and considered furtherholding that Insurance Company has demonstrated that there isbreach of policy and further ought not to have made InsuranceCompany also jointly liable along with rider of motorcycle bearingNo. MH-19-AR-4283. There is apparently no driving licence andthis amounts to breach of policy. 13.As regards to deduction towards personal expenses isconcerned, there is discussion in para 21 of the impugnedjudgment, wherein income of deceased is Rs.4,000/- per month.Notional income Rs.2,000/- is added under the head of futureprospects and thereby base income is considered as Rs.6,000/- permonth. However, while carrying deduction towards personalexpenses, deduction made by tribunal is one fifth instead of 50%regarding which specific ground is raised by virtue of clause (IV) ofthe appeal memo. -7- FA-598-202214.In view of the ratio laid down in National InsuranceCompany Limited Vs. Pranay Sethi and Others, (2017) 16 SCC680, since the deceased was a bachelor at the time of the accident,50% ought to have been deducted. Deceased was undisputedlybachelor and he has widowed mother, younger brother and asister. Therefore, under such circumstances, deduction towardspersonal expenses ought to have been 50%, but learned Tribunalhas erred in considering the same and therefore, interference inthe same is also called for. Further, in the considered opinion of this court, learnedtribunal has granted amount towards loss of consortium and loss oflove and affection only Rs.1,00,000/-, but for all claimants. In viewof the ratio laid down in Pranay Sethi (supra) and Magma GeneralInsurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Others,(2018) 18 SCC 130 and Nagappa Vs. Gurudayal Singh and Others,(2003) 2 SCC 274, claimants are entitled for Rs.40,000/- each, i.e.1,20,000 /- plus 30% (Rs.36,000/-) which comes to Rs.1,56,000/-towards consortium and loss of love and affection. Rs.15,000/- plus30% (Rs.4,500/-), which comes to Rs.19,500/- towards loss ofestate. -8- FA-598-2022In view of the aforesaid discussion, claimant is entitledfor following compensation :Sr.No.HeadsAmount (Rs.)1.Annual Income (i.e. 4000 x 12)48,000/-2.Future Prospects 50%i.e. 24,000 (48,000 + 24,000)72,000/-3.Less 50% deduction towards personalexpenses.(Rs. 72,000 – Rs. 36,000)36,000/-4.Multiplier of 18 (36,000 X 18)6,48,000/-5.Loss consortium and Love and affection = 1,56,000/-Funeral expenses = Rs.25,000/- (as per tribunal)Medical Expenses = 80,500/- (as per tribunal)Loss of Estate =19,500/-2,81,000/-6.Total compensation to be paid9,29,000/-7.Compensation awarded by Tribunal 12,42,300/-8.Total Excess Compensation (i.e. Rs.12,42,300 – 9,29,000)3,13,300/-15.In the result, the following order :ORDER(I) The First Appeal is allowed.(II) Impugned judgment and award dated 13.08.2015, passed bythe Member of M.A.C.T., Aurangabad in M.A.C.P. No.716 of2012 is modified. -9- FA-598-2022(III) The over all compensation is reduced from Rs.12,42,300/- toRs.9,29,000/-, which shall carry interest @ 9% per annum.(IV) The excess amount of Rs.3,13,300/- along with proportionateinterest accrued during the pendency of the present Appealshall be refunded to the Appellant/Insurance Company.(V) After deducting the aforesaid amount from the totalcompensation, the balance amount, if any, shall be releasedto respondents Nos.2 to 4/original claimants along withaccrues interest thereon.(VI) Modified award be prepared accordingly.(VII)As the insurance company is exonerated from the liability topay compensation, insurance company is entitle to recoverthe amount of compensation as per modified award from theowner as per law.(VIII) The Appeal is disposed off in above terms. (ABHAY S. WAGHWASE, J.) Tandale