High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1612 OF 2017WITH CIVIL APPLICATION NO. 15341 OF 20131.Sainath s/o Shankar Bhagyavant2.Sachin s/o Sainath Bhagyavant… APPELLANTS(Ori. Opp. No.2 and 3)VERSUS1.Chandabai w/o Machindra Sable2.Ashvini d/o Machindra Sable3.Kamini Machindra Sable4.Shivani Machindra Sable5.Preeti Machindra Sable6.Radha Machindra Sable7.Sonabai w/o Kashinath Sable8.Bajaj Allianz General Insurance Co.Ltd.Through its Branch Manager… RESPONDENTS(Res. Nos. 1 to 7 Ori. Claimants& Res.No.8 ori. Opponent No.1.Mr. P. S. Pawar, Advocate for the appellantsMr. P. C. Mayure, Advocate for respondent Nos. 1 to 7Mr. M. R. Deshmukh, Advocate fo respondent No. 8WITH FIRST APPEAL NO. 2666 OF 20191.Chandabai w/o Machindra Sable2.Ashvini d/o Machindra Sable3.Kamini d/o Machindra Sable4.Shivani d/o Machindra Sable5.Preeti d/o Machindra Sable6.Radha d/o Machindra Sable7.Sonabai w/o Kashinath Sable… APPELLANTS(Ori. Claimants)VERSUS1.Bajaj Allianz General Insurance Company Ltd.fa1612.17.odt1 of 8 Through its Branch Manager2.Sainath s/o Shankar Bhagyavant3.Sachin s/o Sainath Bhagyavant… RESPONDENTS(Ori. respondents)Mr. P. C. Mayure, Advocate for the appellantsMr. M. R. Deshmukh, Advocate fo respondent No. 1Mr. P. S. Pawar, Advocate for the respondent Nos. 2 and 3CORAM: R. M. JOSHI, J.RESERVED ON: 14th FEBRUARY, 2024PRONOUNCED on: 27th FEBRUARY, 2024 P.C. :-1.First Appeal No. 1612 of 2017 is filed by original opponent Nos.2and 3 i.e. owner and driver of offending vehicle taking exception to thejudgment and award passed in M.A.C.P. No. 271 of 2010 exoneratingoriginal respondent No. 1-Insurer from liability of payment ofcompensation. Whereas the claimants have sought enhancement ofcompensation in First Appeal No. 2666 of 2019.2.Parties are referred to by their nomenclature in original proceedingfor the sake of convenience.3.It is the case of the claimants that on 04/02/2010 at about 9.15a.m. deceased Machindra Sable was proceeding on motorcycle bearingNo. MH-23-G-6848 by Aurangabad-Ahmednagar road. Near Bhendalafata a tractor bearing No. MH-20-AY-4894 driven by respondent No.3fa1612.17.odt2 of 8 came from opposite direction in high speed. Due to negligence driving,tractor gave dash to the motorcycle of the deceased as a result of whichhe fell down and sustained serious injuries. He was hospitalized andsuccumbed to the injuries on 05/10/2010 and an offence came to beregistered against the driver of the tractor at Gangapur Police Stationbeing Crime No. 20 of 2010. Claimants averred dependency on thedeceased who was earning Rs.7500/- per month and soughtcompensation of Rs.10,00,000/-.4.Respondent No.1/Insurer by filing written statement opposed theclaim. No dispute is made about the fact that the tractor is owned byrespondent No.2 and insured the Insurer during the relevant time. It ishowever case of this Insurer that at the time of accident respondentNo.3 was not holding valid and kept to driving license for driving tractorattached with trailer. Thus, Insurer claims commission of breach of termsof conditions of insurance policy on this ground also on the ground ofattaching unregistered trailer to the tractor and tractor being used forcommercial purpose. On these grounds the Insurer has been deniedliability of payment of compensation to the claimants. Respondent Nos. 2and 3 i.e. owner and driver of tractor failed to file written statement.5.On behalf of the claimants Chandabai Sable (PW-1) (Exhibit 24)was examined and reliance is placed on documents filed at Exhibits 25 tofa1612.17.odt3 of 8 28. The Insurer examined Shamayya Allaya Parkelu at Exhibit 35, a clerkfrom RTO office and also led evidence of Dhanesh Kulkarni at Exhibit 40.Insurer also placed reliance on the copy of driving license of respondentNo.3 filed at Exhibit 36.6.None of the claimants have witnessed the accident in question. Assuch the proof of the accident is sought to be established on the basis ofthe police papers filed on record. The copy of First Information Report(Exhibit 25) shows that at the time of accident the tractor was beingdriven by respondent No.3 in rash and negligent manner and deceasedMachindra Sable sustained serious injuries in the said accident which hasultimately resulted into his death. Evidence further indicates that offencecame to be registered against driver of the tractor over rash andnegligent driving and being responsible for the death of deceased.Claimants therefore have successfully discharged initial burden to provethe factum of accident as well as negligence on the part of the driver ofthe tractor in causing the same. Onus therefore shifted on owner, driverand Insurer to prove otherwise, which they failed to discharge. 7.Claimants relied upon post mortem report to prove age of thedeceased to be 35 years. Admittedly, no evidence is produced on recordin order to show the income of the deceased. The learned Tribunal hasheld notional income of the deceased at Rs.3,000/- per month.fa1612.17.odt4 of 8
Legal Reasoning
Considering the number of dependents on the deceased 1/3 amount wasdeducted towards personal expenses of the deceased and by applyingappropriate multiplier of 16 the entitlement of the claimants forcompensation was decided at Rs.3,84,000/-. Compensation was alsogranted on other heads. As rightly pointed out by learned counsel forclaimants, no future prospects as per judgment of Hon’ble Apex Court incase of National Insurance Company Limited Versus Pranay Sethi andOthers, (2017) 16 SCC 680 . Having regard to the age of the deceasedhe is entitled for 40% additional amount towards the future prospects.The impugned judgment and award therefore deserves modification bygranting enhancement to that extent. Apart from this the compensationunder the other heads such as consortium, funeral expenses and loss ofestate also needs to be modified as per the dictum of Pranay Sethi(supra).8.Now coming to the challenge raised by the owner and driver of theoffending vehicle to the judgment and award to extent of exoneration ofInsurer for payment of compensation to the claimants, for want of validand effective license for driving tractor with trolley i.e. transport vehicle,breach of conditions of policy is held to deny liability of Insurer. This isnot the case that where the driver of tractor did not have license but hehad license to drive light motor vehicle. Hon’ble Apex Court in case offa1612.17.odt5 of 8 Mukund Dewangan V/S Oriental Insurance Company Limited, (2017) 14SCC 663 has held that the tractor attached with a trolley unless weighsmore than 7500 KG it does not become a transport vehicle. Consideringthe said position of law and as there is absolutely no evidence on recordto indicate that unladen weight of the tractor and trolley exceeded thislimit, it has to be held that the driver of the tractor was having valid andeffective license and that there is no breach of terms of insurancecontract. 9.Learned counsel for Insurer sought to argue that since the trolleywas plied on the road without its registration with RTO and that tractorwas used for commercial purpose, this amounts to breach of condition ofthe policy and which amounts to fundamental breach as contemplated bySection 149(2) of the Motor Vehicle Act. In this regard, evidence broughton record by the Insurer needs to be considered. Insurer examined him,Shamayya Allaya Parkelu, (DW 1) (Exhibit 35) who led evidence only tothe extent of license. He does not say anything about trolley beingregistered or not. Second witness Dhanesh Kulkarni, (DW 2) (Exhibit 40)in his cross examination has recorded candid admission that there is noevidence to show that tractor was used for commercial purpose.10.Even if this Court accepts the contention of Insurer that trailercarried bricks at relevant time, question arises as to whether this fact byfa1612.17.odt6 of 8 itself would be sufficient to prove that the vehicle has been used forcommercial purpose. There is nothing indicated in the insurance policy asto what can not be carried in the trailer attached to the tractor. Thus,there cannot be prohibition to carry any article, unless otherwise notpermitted by any law for time being in force, in the trailer in question. Insuch circumstances, carrying of bricks would not become breach of termsof policy, unless it is proved that it was carried for “commercial purpose”.Policy only prohibits commercial use of the vehicle. The dictionarymeaning of term “commercial” is an actively engaged in or concernedwith commerce, making or intending to make profit. In order to prove itbeing commercial purpose, these essential constituting commercialactivities must be established. Scrutiny of entire evidence on recorddemonstrates no such proof. Witness No.2, Kulkarni, of Insurer admits incross examination that no evidence is produced to show that respondentNo.2 has given the said tractor on rent basis to another person. Thus,there is no evidence to hold that there is any breach of conditions ofpolicy as claimed by Insurer. The order of Tribunal exonerating theInsurer therefore cannot sustain.11.This Court therefore finds substance in the challenge to theimpugned judgment and award to the extent of exoneration of theInsurer from the liability of payment of compensation on both counts.Insurer is hereby held liable for payment of compensation jointly andfa1612.17.odt7 of 8
Decision
severally with respondent Nos. 2 and 3. Hence, the order.ORDER(i)Both Appeals are stand allowed, in following terms. (ii)The impugned judgment and award stands modified asunder:Sr. No.HeadsRs.1.Rs.24000/- + 40% = Rs. 33,600/-(annual income) (future prospects)Rs.33,600/- x 16 multiplier 5,37,600/-2.Loss of consortium Rs.40,000/- eachclaimants2,80,000/-3.Loss of estate 15,000/-4.Funeral Expenses 15,000/-Total compensation 8,47,600/-(iii)Insurer and respondent Nos. 2 and 3 are jointly and severallyheld liable for payment of compensation to the claimants. (iv)Rest of the judgment and award to remain unchanged.(v)Claimants to pay Court fees on enhanced compensation asper rules.(vi)The difference of compensation be deposited within a periodof six weeks.(vii)Amount deposited (along with accrued interest) byrespondents is permitted to be withdrawn by claimants. (viii)No order as to costs..Pending civil application stands disposed of. (R. M. JOSHI, J.)sspfa1612.17.odt8 of 8