34-FA-163-17,861-16 1/9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. FIRST APPEAL NO.163 OF 2017 [ENTITY], Having its Head Office at E-8 EPIP, RIICO Industrial Area, Sitapura, Jaipur, Rajasthan having its Branch Office at Shraddha House, Opp. Kasturchand partk, Nagpur Through its Legal Officer Appellant. -vs- 1. [ENTITY] wd/o [ENTITY] Aged about 35 years, Occ. Household, 2. [ENTITY] s/o [ENTITY], Aged about 14 years, Occ. Student 3. [ENTITY] d/o [ENTITY] Aged about 18 years, Occ. Student R. No.2 represented by the R. No.1 i.e his natural guardian. All R/o [ENTITY], [ENTITY], Tah. Amgaon, District Gondia 4. [ENTITY] s/o [ENTITY], Aged about Major, Occ. Driver, R/o Tapti Ward, Multai, Betul, District Betual (Madhya Pradesh) 5. [ENTITY] s/o [ENTITY] Aged about Major, Occ. Owner, R/o Tapti Ward, Multai, Betul, District Betual (Madhya Pradesh) Respondents. WITH [CASE NUMBER] 1. [ENTITY] wd/o [ENTITY] Aged about 35 years, Occ. Household, Uploaded on - 05/03/2019 Downloaded on - 16/03/2019 01:06:50 34-FA-163-17,861-16 2/9 2. [ENTITY] s/o [ENTITY], Aged about 14 years, Occ. Student 3. [ENTITY] d/o [ENTITY] Aged about 18 years, Occ. Student R. No.2 represented by the R. No.1 i.e his natural guardian. All R/o [ENTITY], [ENTITY], Tah. Amgaon, District Gondia Appellants. vs. 1. [ENTITY], Having its Head Office at E-8 EPIP, RIICO Industrial Area, Sitapura, Jaipur, Rajasthan having its Branch Office at Shraddha House, Opp. Kasturchand partk, Nagpur Through its Legal Officer 2. [ENTITY] s/o [ENTITY], Aged about Major, Occ. Driver, R/o Tapti Ward, Multai, Betul, District Betual (Madhya Pradesh) 3. [ENTITY] s/o [ENTITY] Aged about Major, Occ. Owner, R/o Tapti Ward, Multai, Betul, District Betual (Madhya Pradesh) Respondents. Shri [ENTITY], Advocate for appellant in [CASE NUMBER] and for respondent No.1 in [CASE NUMBER]. Shri [ENTITY], Advocate for respondent Nos.1 to 3 in [CASE NUMBER] and for appellants in [CASE NUMBER]. CORAM : [ENTITY], J.
DATE : February 04, 2019 Common Judgment :
Since both these appeals arise out of the judgment of the Motor Accident Claims Tribunal dated 02/01/2016 in [CASE NUMBER], they are being decided together by this common judgment.
2. The appellants in [CASE NUMBER] are the original claimants. It is their case that the husband of appellant No.1 [ENTITY] was employed as a labourer and was earning Rs.500/- per day. On 27/01/2011 when he was travelling from Multai to Nagdwari in a passenger bus the same met with an accident. As a result of that accident the husband of appellant No.1 sustained various injuries and succumbed to his death. The claimants therefore filed proceedings under [SECTION] of the [ACT] (for short, the said Act) seeking compensation of an amount of Rs.6,00,000/- from the owner and insurer of the vehicle.
3. In the written statement filed by the Insurance Company at Exhibit-56 it was pleaded that the driver of the bus which met with an accident was not holding a valid and effective license. Further the said bus was not having a valid and effective permit as well as fitness certificate. Hence there was breach of terms and conditions of the insurance policy and hence there was no liability to pay compensation.
After considering the evidence on record the learned Member of the Claims Tribunal granted an amount of Rs.5,50,000/- to the claimants with interest. Not being satisfied with the amount of compensation as granted, the claimants have filed [CASE NUMBER]. Similarly, the Insurance Company being aggrieved by the said judgment has challenged the same by filing [CASE NUMBER].
4. Shri [ENTITY], learned counsel for the appellant in [CASE NUMBER] submitted that no proper opportunity was given to the Insurance Company to substantiate its defence as raised in the written statement. Initially the said written statement was not permitted to be placed on record by the Claims Tribunal. Hence [CASE NUMBER] was filed and this Court permitted the appellant to place on record its written statement. Thereafter the time was sought on certain occasions by the Insurance Company to lead evidence. Without grant of such sufficient opportunity its side was closed and the proceedings were decided finally. He submitted that as per the insurance cover note of the vehicle in question, the sitting capacity of the said bus was 32 persons but as per the FIR it was found that about 45-50 passengers were travelling in the said bus. An offence had been registered against the driver of the said bus. Similarly, on account of absence of a valid permit, an offence was also registered against the owner of the vehicle. In the light of these facts an opportunity ought to have been given to the Insurance Company to substantiate its stand. Failure to do so has caused prejudice and hence the impugned order was liable to be set aside. The learned counsel placed reliance on the decision in National Insurance Co. Ltd. vs. Vidhyadhar Mahariwala and ors. AIR 2009 SC 208 in that regard.
5. Shri [ENTITY], learned counsel for the claimants-appellants in [CASE NUMBER] besides supporting the impugned judgment submitted that sufficient opportunity was given to the Insurance Company to substantiate its defence. As per the orders passed on various applications moved by the Insurance Company it was clear that despite grant of sufficient opportunity the Insurance Company failed to lead evidence. The Insurance Company itself was responsible for the said state of affairs and the claimants could not be prejudiced on that count.
It was then submitted that the compensation as awarded was on a lower side and the same was liable to be enhanced. The identity card of the deceased at Exhibit-27 indicated his engagement as a labourer. The net income of the deceased was taken on a lower side and the amount towards future prospects were not granted. The learned counsel placed reliance on the decisions in [PRECEDENT], [PRECEDENT], [PRECEDENT], The [PRECEDENT] in support of his submissions.
6. Shri [ENTITY], learned counsel for the Insurance Company in reply opposed the prayer for enhancement in the amount of compensation. He submitted that the evidence led by the claimants was not sufficient to warrant grant of compensation as awarded by the Claims Tribunal and the amount as granted by the impugned judgment was in fact liable to be reduced.
7. In the light of aforesaid submissions the following points arise for consideration :
(i) Whether the Insurance Company was granted sufficient opportunity to contest the proceedings before the Claims Tribunal ?
(ii) Whether the appellants are entitled for enhanced compensation ?
8. I have heard the learned counsel for the parties at length and I have perused records of the case. It is not in dispute that after the claim petition was filed the Insurance Company failed to file its written statement within the prescribed time. As permission was refused to it to file its written statement, [CASE NUMBER] was filed in that regard. By order dated 30/06/2014 necessary permission to file the written statement was granted subject to paying costs of Rs.5000/-. Thereafter the written statement was filed on record on 17/07/2014. The record indicates that initially the Insurance Company did not cross-examine the witness examined by the claimants. Pursuant to an order passed below Exhibit-37 such permission was granted on 21/08/2014 subject to payment of costs. Thereafter the claimants' evidence was closed on 10/09/2015. The Insurance Company, as per the application at Exhibit-43 dated 24/09/2015 sought adjournment for leading evidence. Time was accordingly granted. The second application moved by the Insurance company is dated 15/10/2015. Thereafter on 05/11/2015 an affidavit at Exhibit-45 was filed on behalf of the Insurance Company. Adjournments were again sought on 19/11/2015 and 03/12/2015. Further time was granted on 10/12/2015 as per Exhibit-48. Thereafter on 17/12/2015 yet another application for adjournment was moved at Exhibit-50 which came to be rejected. Thereafter on 31/12/2015 application below Exhibit-55 again seeking time was moved by the Insurance Company but the same was also rejected in view of earlier orders. The Insurance Company however, was permitted to file documents on record as per the application at Exhibit-53. Thereafter on 02/01/2016, the learned Member passed the impugned award.
9. The aforesaid progress of the proceedings indicates that sufficient time was granted to the Insurance Company to substantiate its defence. Time was however sought on one pretext or the other and the same was also granted. Thereafter the proceedings were decided. Having raised a defence as regards breach of policy conditions, the burden was on the Insurance Company to prove the same. It is found that despite grant of sufficient opportunity it did not lead any evidence. I do not find any justifiable reason to hold that sufficient opportunity was not granted by the Claims Tribunal to the Insurance Company. Moreover, no permission under [SECTION] of the said Act was sought by the Insurance Company to raise a specific defence. Point No.(i) is answered by holding that sufficient opportunity was granted to the Insurance Company to contest the proceedings.
10. As regards the quantum of compensation, the Claims Tribunal has taken the notional income of the deceased at Rs.4000/- per month. Considering the contents of the identity card at Exhibit-27 and the fact that the accident took place on 27/07/2011 and keeping in mind the age of the deceased which was 37 years, the said figure of notional income appears to be reasonably taken. 40% amount is liable to be added for future prospects and the monthly income would therefore be Rs.5600/-. 1/3rd amount is liable to be deducted for personal expenses giving the balance of Rs.3733/-. The annual income would be Rs.44,799/-. Multiplier of 16 would be applicable considering the age of the deceased. The figure would therefore be Rs.7,16,784/-. By providing sum under conventional heads, the total compensation of Rs.7,75,000/- is found reasonable and proper. This amount has been determined after taking into consideration the ratio of various decisions relied upon by the learned counsel for the claimants. Point No.(ii) is answered accordingly.
11. In that view of the matter the following order is passed :
(a) It is held that the claimants are entitled for total compensation of Rs.7,75,000/-. After deducting the amount of compensation granted by the Claims Tribunal the balance amount shall be paid to the claimants with interest at the rate of 9% per annum from the date of filing claim petition till realization. The amount of compensation deposited by the insurer is permitted to be withdrawn along with accrued interest.
(b) [CASE NUMBER] is partly allowed in aforesaid terms.
(c) [CASE NUMBER] stands dismissed. (d) [CASE NUMBER] is also disposed of. No order as to costs. JUDGE [ENTITY]