High Court
Legal Reasoning
5 241-19-FA.odtclaimants have failed to prove medical bills and they are notentitled to recover that amount from respondents.10.It is well settled that the Tribunal is not a Court andhence is not bound by strict rules of pleadings and evidence.Claimant has to prove his case on the basis of preponderance ofprobabilities. In Dattatraya Laxman Shinde Vs. NanaRaghunath Hire and others, [2011(6) ABR (NOC) 564 (Bom)],claimant had produced voluminous original documents such asmedical bills, vouchers and documents evidencing expenditure ofmedicines, medical treatment, special diet, traveling expenses andresidence of relatives and friends. Insurance company did not admitthese documents. In the examination-in-chief claimant madereference to all the bills and vouchers. The Tribunal did not takethose bills and vouchers into consideration, on the ground that theywere not proved in accordance with law. In these facts, learnedSingle Judge of this Court held: “the Tribunal constituted under the said Act is not boundby strict rules of evidence. Therefore, the said bills andvouchers ought to have taken into consideration by theTribunal in absence of the specific case made out that thedocuments were fabricated.”11.In Rekha Jain Vs. National Insurance Co. Ltd., [AIR2013 SC 3429], Tribunal had taken into consideration the medicalbills and vouchers produced on record by claimant, which were alsoreferred to in the evidence of claimant. Tribunal marked theseSVH 6 241-19-FA.odtdocuments, in spite of objections from the insurance company andconsidered them while awarding compensation. The High Courtinterfered in the said finding and reduced the compensation ofRs.17,51,726/- to Rs.7,77,000/-. In these facts, Apex Court held:“This has been very lightly interfered with by the learnedJudge of the High Court without application of mind andconsideration of legal evidence on record particularly inthe absence of rebuttal evidence and further, theInsurance Company was unable to show that thedocuments referred to supra produced by the appellant inher evidence are fabricated documents, which have beenproduced with deliberate intention to prefer a false claimin this regard as contended by the learned counsel onbehalf of the Insurance Company.”12.Both the above rulings support the case of claimants.The Tribunal has erred in ignoring medical bills of Rs.32,867/-, asclaimants failed to examine any witness to prove the same. Tribunalhas drawn unwarranted inference and has based this finding onsurmises and conjectures. This finding is, therefore, erroneous andthe same is unsustainable.13.Without assigning any reason Tribunal has failed toaward compensation towards loss of estate. As per the ratio inNational Insurance Co. Ltd. v. Pranay Sethi and Others,[2017 (16) SCC 680], Rs.15,000/- is payable to claimants towardsloss of estate and Rs.40,000/- is payable towards loss of consortiumto each claimant. Therefore, though Tribunal has awardedRs.40,000/- towards loss of consortium, the same needs to beawarded to each claimant. Since there are five claimants, 5 xSVH 7 241-19-FA.odtRs.40,000/- = Rs.2,00,000/- is payable towards loss of consortium.Claimants are, therefore, entitled for compensation as follows:Sr.No.HeadsAmount (Rs.)1Monthly income computed by Tribunal Rs.14,000/-+ 40% future prospectus i.e. Rs.5,600/-Rs.19,600/-2Less 1/4 amount as personal expenses ofdeceased (Rs.19,600 – Rs.4,900/-)Rs.14,700/-3Annual dependency Compensation (Rs.14,700 x 12)Rs.1,76,400/-4Annual dependency multiplied by multiplier(Rs.1,76,400 x 16)Rs.28,22,400/-5Non-pecuniary Losses:-Loss of Consortium Rs.40,000/- to each claimants(Rs.40,000 x 5) = Rs.2,00,000/- Loss of Estate = Rs.15,000/-Funeral Expenses= Rs.15,000/-Rs.2,30,000/-6Medical ExpensesRs.32,867/-6Total compensation needs to be awardedRs.30,85,267/-7Compensation awarded by the TribunalRs.28,77,400/-Total Enhanced Compensation (Rs.30,85,267 – Rs.28,77,400)Rs.2,07,867/-14.In the result, following order,ORDER(I)First appeal is partly allowed with proportionate costs.(II)Claimants are held entitled for enhanced compensation of Rs.2,07,867/- along with interest @ 6% per annum from the date of filing of claim petition till it’s realisation. Rest of the judgment and award is confirmed. (NITIN B. SURYAWANSHI, J.)SVH
Arguments
1 241-19-FA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.241 OF 20191.Smt. Pratikala Gambhir Patil,Age 33 years, Occu. Household 2.Mayuri Gambhir Patil,Age 11 years, Occu. Education3.Yash Gambhir Patil,Age 9 years, Occu. Education4.Rohit Gambhir Patil,Age 7 years, Occu. Education,Nos.2 to 4 minors, u/g of NaturalGuardian mother appellant No.15.Smt. Sonubai Vasant PatilAge 58 years, Occu. NilAll R/o Mukti, Tal. & Dist. Dhule… Appellants(Original Petitioners)Versus1.Ramsing RamswaroopAge 41 years, Occu. Driver,R/o Hisampur Marje Mandwa,Khaga, Fatehpur2.Rajendrasing Jernalsing Cheema,Age adult, Occu. Owner of VehicleR/o Kannamwar Ward, Ballarpur,Dist. Chandrapur (Maharashtra)3.The New India Insurance Company Limited(summons to be served onThe Branch Manager, The New India Insurance Co. Ltd.,Yashovallabh Complex,Opp. Municipal Corporation, Dhule … Respondents(Original Opponents)…Ms. Sabahat T. Kazi, Advocate for AppellantsMr. A. S. Usmanpurkar, Advocate for Respondent No.3...SVH 2 241-19-FA.odt CORAM : NITIN B. SURYAWANSHI, J. RESERVED ON : 18th JULY, 2024PRONOUNCED ON : 06th AUGUST, 2024JUDGMENT : 1.Admit. Heard finally with the consent of the parties.2.This appeal filed by claimants challenges judgment andorder dated 11/09/2018, passed by the Motor Accident ClaimsTribunal, Dhule, in M.A.C.P. No.35/2015.3.Deceased Gambhir was husband of appellant No.1,father of appellant Nos.2 to 4 and son of appellant No.5. On22/11/2014 at about 09:00 am, he was riding motor cycle bearingNo.MH-18-AL-4046, along with Ravindra Bhil being pillion rider. OnNational highway No.6, in front of Hotel Anand, respondent No.1driver drove truck bearing No.MH-34-AB-6410 in rash and negligentmanner, and dashed with the motorcycle of deceased. Due to thedash, deceased and Ravindra sustained grievous injuries. Deceasedwas admitted in Sudha Hospital, Dhule, where two operations wereperformed on him. However, he succumbed to the injuries.Claimants, therefore, filed claim petition contending that deceasedwas earning Rs.8,00,000/- to Rs.10,00,000/- per annum fromagricultural land. In addition, he was doing milk business and wasearning Rs.1,000/- to Rs.1,200/- per day. C.R. No.315/2014 wasregistered with Dhule Police Station against the driver. Claimants,therefore, claimed compensation of Rs.70,00,000/- from theSVH 3 241-19-FA.odtrespondents owner, driver and insurance company.4.Respondent Nos.1 and 2 i.e. driver and owner of thetruck, remained absent in spite of service of notice. RespondentNo.3 Insurance Company opposed the claim, however, impliedlyaccepted that vehicle involved in accident was insured with it. It isclaimed that, there was breach of policy and contributorynegligence on the part of deceased. Income source of the deceasedwas also denied. Tribunal partly allowed the claim and awardedcompensation of Rs.28,77,400/- along with interest @ 7.5% perannum, to be paid by respondent Nos.1 to 3 jointly and severally.Claimants have filed this appeal for enhancement of thecompensation.5.Heard learned advocate for appellants, learnedadvocate for respondent No.3. Though served none appears forrespondent Nos.1 and 2. Perused the record.6.Learned advocate for appellants/claimants submittedthat Tribunal has erred in assessing notional income of deceased atRs.9,000/- from agricultural land and Rs.5,000/- from milk businessi.e. total Rs.14,000/- per month. Though medical bills were producedon record, amount spent for medical treatment is not awarded. Nocompensation is awarded towards non-pecuniary damages like lossof consortium, loss of love and affection, loss of estate, etc. Byrelying on Rajwati @ Rajjo and Others Vs. United IndiaInsurance Company Ltd. and Others, [2022 LiveLaw (SC)SVH 4 241-19-FA.odt1016] and Magma General Insurance Co.Ltd. Vs. Nanu Ram @Chuhru Ram and Others [2018 ALL SCR 2001], he submits thatclaimants are entitled for enhancement of compensation.7.Learned advocate for respondent No.3 InsuranceCompany, on the other hand, supported the impugned judgmentand order passed by the Tribunal. He submits that claimants haveproduced only medical certificates, however, no discharge card isplaced on record to corroborate the same. He submits that incomefrom agricultural land and milk business is being received by theclaimants. Tribunal has awarded adequate compensation.8.Death of deceased in the accident is not in dispute. Toprove the earning of deceased, claimants have placed on recordcertificate Exhibit-31 issued by Mukati Milk Producing Association,Dhule, which shows that deceased was supplying 18 to 20 Litersmilk to the said society. Claimants have also examined President ofMukati Milk Producing Association to prove the certificate Exhibit-31.Some of the receipts showing sell of crop like cotton are also placedon record. Taking into consideration these documents, the Tribunalhas rightly held that earning of the deceased from agricultural landwas Rs.9,000/- and from milk business was Rs.5,000/- per month.9.Though the medical bills vide Exhibit-32 are placed onrecord, Tribunal has not considered them by observing that none ofthe witness is examined to prove the said bills. In this view of thematter, Tribunal has committed error in recording finding thatSVH