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New India Assurance Company Ltd. Through its Divisional Manager & Others v/s Rekha & Others

    First Appeal No. 926 of 2014 & Cross Objection Stamp No. 16682 of 2014 & Civil Application No. 2370 of 2015

    Decided On, 07 December 2021

    At, In the High Court of Bombay at Aurangabad

    By, THE HONOURABLE MR. JUSTICE R.G. AVACHAT

    For the Appellants: S.G. Chapalgaonkar, Advocate. For the Respondents: R1 to R5, Y.S. Choudhari, R8, S.V. Kulkarni, R9, M.N. Nawandar, Advocates.



Judgment Text

This is an appeal by the insurance company, taking exception to the judgment and award dated 20.01.2014 passed by Motor Accident Claims Tribunal, Beed, in Motor Accident Claim Petition No.245 of 2011, granting compensation of Rs.32,29,820/- on account of death in vehicular accident.

The original claimants also have preferred a Cross Objection for enhancement of compensation.

2. The facts, giving rise to the present appeal and Cross Objection as well, are as under:-

Deceased - Satish was on his way from village Bodkha, Tq. Ghansavangi to Georai in Maruti Swift (Dzire) car bearing registration No.MH-23-E-8839. While Swift car was crossing the bridge, an oncoming vehicle, bearing registration No.MH-21-V-3610 brushed with Swift car. As a result, Swift car dashed against a parapet wall of bridge. Deceased – Satish was driving Swift car. He suffered multiple injuries and succumbed thereto on the spot. His widow, three minor children and father, therefore, preferred a petition for compensation. The deceased was serving as a Lecturer with Jay Bhavani College at Gadhi. The Tribunal appreciated the evidence before it and held it to be a case of negligence in equal proportion of the drivers of both the vehicles involved in the accident. It, therefore, directed the insurer and the owner of Swift car on one hand and the owner and driver of Bolero on the other, to pay the amount of compensation equally (50% each). The amount of compensation was directed to be paid within a period of two months from the date of the award. It has been directed that failure to adhere the time frame to deposit the amount, the compensation amount is to carry interest at the rate of 12% per annum from the date of the claim petition to the date of realisation.

3. Mr.S.G.Chapalgaonkar, learned counsel for the appellant – insurance company, would submit that the averments in the claim petition and the evidence let in on behalf of the claimants attribute the negligence or rashness to the drivers of both vehicles. It was a claim under Section 166 of the Motor Vehicles Act. Proof of negligence or rashness is a condition precedent for grant of compensation thereunder. Moreover, the deceased was not a third party so far as against the appellant – insurance company is concerned. The deceased had borrowed Swift car to drive the same when it met with the accident. Admittedly, the deceased was not a paid driver. As such, his risk had not been covered under the policy of the insurance. Learned counsel, therefore, urged for allowing the appeal.

4. Mr.S.V.Kulkarni, learned counsel for the respondent no.8 - insurance company (insurer of Bolero), would, on the other hand, submit that both the vehicles had entered the bridge. The Tribunal, on appreciation of the case, has rightly held it to be a case of contributory negligence. On the question of quantum, he would submit that the just and reasonable compensation has been awarded.

5. Mr.Y.S.Choudhari, learned counsel for the respondents-claimants, would, on the other hand, submit that the charge sheet was filed against Bolero’s driver. It was the case of exclusive negligence on the part of Bolero’s driver. The policy of insurance of Swift car was comprehensive in nature. The risk of the occupants therein was covered. On the question of enhancement of compensation, learned counsel would submit that the Tribunal erred in taking into consideration the take-home salary of the deceased. The deceased was 37 years of age. The claimants were five in number. The deduction, therefore, ought to have been one forth. Learned counsel, therefore, urged for enhancement of compensation in terms of the Apex Court’s judgments in the cases of (i) National Insurance Company Ltd. Vs. Pranay Sethi and ors., (2017)16 SCC 680; and (ii) Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and ors., (2018)18 SCC 130.

6. Considered the rival submissions. Perused the evidence relied on. Gone through the impugned award.

7. The accident took place on 26.04.2011. The FIR was, however, lodged on 04.05.2011 i.e. eight days after the accident. For the reasons based known to it, the insurer of Bolero has not taken exception to the impugned award on the ground of its false implication. Be that as it may. It, thus, stands admitted that it was an accident between Swift car and Bolero. It took place on a bridge. The Tribunal observed as under:-

“16. Looking to the entire evidence that is placed on record by all the parties, I find that when there was narrow bridge, one of the vehicles ought to have stopped prior to the bridge so as to allow other vehicle to cross the bridge. It appears that both the vehicles simultaneously came in the middle of the bridge. It further appears that driver of both the vehicles must be driving the same in rash and negligent manner and therefore, there was dash between both the vehicles; and due to dash the Swift Dzire car went towards bridge and dashed against wall of the bridge and so the deceased died on the spot.

17. In view of the facts and circumstances emerging on record, I find that the drivers of both the vehicles are equally responsible for causing the accident. Admittedly, both the vehicles were insured with insurance company and the insurance of both the vehicles was valid as on the date of accident. I have, therefore, no hesitation to hold and conclude that all the respondents are jointly and severally liable to pay amount of compensation to the claimants. Both these issues are, thus, answered accordingly.”

8. It is the contention in the FIR that Bolero brushed with Swift car and went away. As a result thereof, Swift car lost its track and dashed against the side wall of bridge. It has been specifically averred in the FIR as under:-

“LANGUAGE”

9. Close reading of the aforesaid averments with the sketch of the site of the accident, it could not be imagined as to whether, really the accident took place as has been stated above. If the aforesaid version in the FIR is accepted, it has to be assumed that both the vehicles were proceeding from wrong side of the road. In view of this Court, the Tribunal, on appreciating the evidence, has rightly held it to be a case of rash and/or negligence on the part of the deceased and the driver of Bolero, in equal proportion. There is no need to interfere therewith.

10. As regards the liability of the appellant-insurance company to pay the amount of compensation, it needs to be held that the deceased was driving Swift car, which was insured with the appellant - insurance company. He was not a paid driver thereof. As such, the deceased was in the shoes of the owner of the Swift car, respondent no.9 herein. He was not a third party as against the driver and the insurance company (appellant) of Swift car. Although the policy of insurance was comprehensive in nature, the risk covered thereunder was as follows:-

LIABILITY

a) Compulsory PA Cover Premium

b) Additional PA Cover Premium (100000 per person) for 5 per person (IMT-16)

c) 5% Extra premium towards inbuilt LPG

d) Legal Liability (WC) to Driver (IMT-28)

11. In view of the above and it being a claim under Section 166 of the Motor Vehicles Act and the deceased being not third party as against the appellant-insurance company, the appellant-insurance company and the owner of Swift car, have no liability to pay the respondents-claimants any compensation, more so, when the deceased has been found to be contributory negligent.

QUANTUM:-

12. The record indicates that the deceased was 37 years of age. He was serving as Lecturer. The salary certificate (Exh.63) suggests that his gross salary was Rs.38,263/-. There were deductions of Rs.11,453/-. The take-home salary was Rs.26,810/-. Except deductions towards Profession Tax (Rs.200) and Income Tax (Rs.700), all other deductions were to the benefit of deceased. Those deductions were in the nature of L.I.C. premium, repayment of bank loan, G.P.F., etc. The Tribunal, therefore, ought not to have taken into consideration the take-home salary of the deceased for assessment of compensation. Form No.16 (Exh.53/C) indicates the deceased to have had paid Rs.8,565/- towards Income Tax for the assessment year 2011-12. In view of the same, for working out the amount of compensation, the sum of only Rs.900/- (Profession Tax and Income Tax) need to be deducted. As such, the monthly salary of the deceased is Rs.37,363/- (Rs.38,263 – Rs.900). The annual salary would be Rs.4,48,356/-. As the deceased was in permanent service and was 37 years of age, 50% thereof needs to be added towards future prospects. As such, the amount would come to Rs.6,72,534/- (Rs.4,48,356 + Rs.2,24,178). Since the claimants were five in number, one forth thereof is deduced towards personal and living expenses of the deceased. This way, the annual dependency would come to Rs.5,04,401/-. Considering age of the deceased as 37 years, multiplier of 15 needs to be applied. As such, applying the multiplier of 15, the loss of dependency would come to Rs.75,66,015/-.

13. Each of the claimants is awarded Rs.40,000/- on account of loss of love and affection and consortium besides a sum of Rs.30,000/- towards funeral expenses. No interest pendente lite is awarded on this amount (Rs.2,30,000/-) . As such, the total amount of compensation comes to Rs.77,96,015/-. Since the deceased was held to be contributory negligent in equal proportion, the respondents-claimants would be entitled to only 50% of the amount of compensation worked out herein above. This way, the amount of compensation payable would come to Rs.38,98,008 (Rs.77,96,015 2).

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. In view of the above, the First Appeal and Cross Objection are allowed in terms of the following order:- (i) First Appeal No.926 of 2014 is allowed. (ii) The impugned award directing the appellant - New India Assurance Company Ltd. to pay 50% of the amount of compensation under the impugned award, is set aside. (iii) Cross Objection Stamp No.16682 of 2014 is allowed. The amount of compensation payable to the respondent/claimants is enhanced from Rs.32,29,820/- to Rs.38,98,008/- (50% of Rs.77,96,015/-). (iv) The amount of Rs.1,15,000/- (50% of Rs.2,30,000/-) shall not carry interest pendente lite (i.e. from the date of claim petition to the date of this order). (v) The amount of compensation already paid/deposited by respondent no.8 - United India Insurance Company Ltd. (insurance company of Bolero) be given due set off. (vi) The amount of compensation deposited by the appellant -insurance company be paid back to it with interest accrued thereon. (vii) Pending Civil Application stands disposed of.
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