919-J-FA-311-97 1/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. FIRST APPEAL NO.311 OF 1997 1. [ENTITY] wd/o [ENTITY] Aged 23 years r/o Panchayat Samiti Quarter, Teosa, Tq. Teosa, Dist. Amravati. 2. [ENTITY] s/o [ENTITY] Aged 3 yrs. Minor by Guardian Mother Appellant No.1. Appellants. -vs- 1. The Oriental Insurance Company Through its Divisional Manager, at its Branch office, Amravati 2. [ENTITY], c/o Diamond Tailor Syndicate, 43 Dewan Hawrah Road, Mominpura, Calcutta 27 3. D. R. Trading Company M/s Vickey Engineering Works, 20-Bhukailash Raod, Calcutta-23 4. Oriental Insurance Company Through its Divisional Manager, Howrah Division Office, Calcutta Respondents. Shri [ENTITY], Advocate for appellants. Ms [ENTITY], Advocate for respondent No.1/Insurance Company. Uploaded on - 21/01/2019 Downloaded on - 25/03/2020 17:22:37 919-J-FA-311-97 2/10 CORAM : [ENTITY], J.
DATE : January 09, 2019 Oral Judgment :
This appeal under [SECTION] of the [ACT] (for short, the said Act) has been filed by the claimants as they are aggrieved by the dismissal of their Claim Petition by the Motor Accident Claims, Amravati.
2. The husband of appellant No.1 and the father of appellant No.2- [ENTITY] while proceeding on his motorcycle on 07/04/1991 met with an accident as said motorcycle was dashed by a truck trailer coming from the same direction. Said [ENTITY] expired in the said accident. He was working with the Zilla Parishad as a Junior Engineer and was receiving an amount of Rs.2476/- per month as salary. On that basis the appellants filed a claim seeking compensation under [SECTION] of the said Act. The insurer of the truck trailer opposed the claim by raising a plea that a motorcycle was being rashly driven by the victim. It was further pleaded that there were two pillion riders and on this count the claim was not liable to be granted. Similarly the victim was under influence of liquor while driving. On the basis of the evidence on record the Claims Tribunal held that the offending vehicle was proceeding at a slow speed and that the victim had not taken a proper precaution resulting in the cause of accident. On that count the claim for compensation came to be rejected. Being aggrieved the claimants have filed the present appeal.
3. Shri [ENTITY], the learned counsel was requested to assist the Court to put forth for considering the case of the appellants. He submitted that in absence of any evidence being brought on record by the Insurance company, it was not open for the Claims Tribunal to have recorded a finding that the victim was rash and negligent while riding his motorcycle. The witness examined by the Insurance Company had inspected the site after more than one and half year and his deposition was not of much assistance. The panchanama at Exhibit-49 also did not tally with the sketch map that was prepared at Exhibit-69. In absence of the driver of the truck trailer being examined, the claim for compensation could not have been dismissed. According to him, merely because there were two pillion riders on the motorcycle, same would not be a reason to deny compensation. On that count he referred to the decisions in [ENTITY] vs. New India Assurance Co. Ltd. (2014) I ACC 864 and The United India Insurance Com. Ltd. vs. [ENTITY] and ors. 2015(1) TAC 258. He then submitted that though the appellant No.1 was granted compassionate appointment in view of death of her husband that would also not be a reason to refuse to grant compensation and for said purpose the learned counsel relied on the decisions in [ENTITY] and ors. vs. Kishore Dan and ors. (2013) 7 SCC 476 and New India Assurance Co. Ltd. vs. [ENTITY] and ors. [PRECEDENT]. Referring to the decisions in [PRECEDENT] and National Insurance Co. Ltd. vs. [ENTITY] and ors. (2017) 16 SCC 680 it was submitted that the appellants were entitled for just compensation.
4. Ms [ENTITY], learned counsel for the respondent No.1 supported the impugned judgment. She submitted that it was an admitted position that three persons including the deceased were riding on the motorcycle. The Claims Tribunal rightly found that the truck trailer was moving in a slow speed and that on account of rash and negligent driving of the motorcycle by the deceased the accident had occurred. Placing reliance on the decision in [PRECEDENT] it was submitted that the fact that there were two pillion riders should be taken into consideration for considering the aspect of contributory negligence. The learned counsel also referred to the provisions of [SECTION] of the said Act to urge that it was not permissible for three persons to ride on a motorcycle. It was then submitted that as the appellant No.1 was granted compassionate appointment and she had also received amounts on the insurance policies of the deceased, there was no loss of income for the family for being compensated.
It was submitted that even if compensation is awarded same should carry interest only from the date of the present judgment in the light of the fact the accident had occurred a long back.
5. The following points arises for determination :
(I) Whether the Claims Tribunal was legally correct in recording the finding that the motorcycle was driven rashly by the deceased resulting in the accident ?
(II) If the answer No.(i) is in the negative, what is the amount of reasonable compensation to which the appellants are entitled ?
6. I have heard the learned counsel for the parties at length and I have also perused the records of the case. In support of the claim for compensation, appellant No.1 examined herself at Exhibit-57. She stated that her husband was working as a Junior Engineer in the Panchayat Samiti and getting Rs.2400/- per month. She admitted that she was appointed on Compassionate Ground after the death of her husband and that she was working as Junior Clerk. She received some amounts on the basis of the insurance policies of her husband. She further admitted that the motorcycle on which her husband was travelling came under rear wheels of the trailer. On behalf of the Insurance Company its Investigating Officer was examined at Exhibit-58. That witness stated that he has served in the police department and after his retirement he was appointed by the Insurance Company to make investigations. He stated that he saw the spot of the accident in November 1992 and prepared a sketch at Exhibit-59. He deposed about the manner in which the accident took place on the basis of information collected by him. In his cross-examination he admitted that he did not remember the names of the persons whose statements were recorded while preparing the report at Exhibit-70.
7. The documentary evidence on record includes a sketch drawn by the Investigator at Exhibit-69 along with his report at Exhibit-70. It is however to be noted that the accident in question occurred on 07/04/1991 while the report in question is dated 18/11/1992 which is almost after one and half year after the said accident. Admitted the Investigator was not a witness to the said accident and the material placed on record by him would have to be appreciated in that backdrop.
The learned Judge of the Claims Tribunal on the basis of the Spot Panchanama as prepared noted that as the two wheeler was found near the rear wheels of the trailer and the fact that the trailer being a heavy vehicle it was moving slowly, it cannot be said that the driver of that trailer was rash and negligent in driving his vehicle. However, perusal of the Spot Panchanama at Exhibit-49 indicates that the truck tailer after diverting from the Highway veered to the right side and had dashed the compound wall of [ENTITY]. If as observed by the learned Judge of the Claims Tribunal that the truck trailer never runs in speed, there is no explanation for it to have crossed the Highway and proceeded to its right side and thereafter dashed against the compound wall. It is to be noted that the plea of contributory negligence was sought to be raised by the Insurance Company in its written statement. However, there is no evidence whatsoever on record to indicate that the deceased was rash and negligent in driving the motorcycle and that he himself had caused the accident. As noted above the report at Exhibit-70 has been prepared after period of one and half year of the accident and hence that report by itself cannot be the basis for holding that it was only the deceased who was rash and negligent.
8. Another aspect that was canvassed by the learned counsel for the Insurance company was that the deceased was travelling on the motorcycle along with two more persons. By referring to the provisions of [SECTION] of the said Act it was submitted that this act of three persons travelling on the motorcycle itself indicated the negligence on the part of the deceased. The mere fact that there were two pillion riders on the motorcycle by itself was not sufficient to conclude that such act resulted in contributing to the accident. That aspect has also to be proved as any other fact. This position has been considered in [ENTITY] and [ENTITY] (supra) wherein it is held that the sole fact of three persons travelling on a motorcycle cannot result in drawing the conclusion that the said aspect had contributed to the accident. Considering the ratio laid down in these two decisions which I am inclined to follow, the decision in Managing Director, TNSTC Ltd. (supra) cannot be followed. Accepting that position would amount to dispensing with further proof of contributory negligence. In absence of any such evidence in the present case it is not possible to hold that the factor of there being two pillion riders by itself was a negligent act and sufficient to deny the claim for compensation.
In view of aforesaid it is found that there is no evidence whatsoever on record to conclude that the deceased himself was negligent in causing the accident and he was thus not entitled for any compensation. The contrary finding as recorded by the Claims Tribunal is set aside. Point No.
(i) is answered by holding that Claims Tribunal was not legally correct in holding that the motorcycle was driven rashly and negligently. The material on record in the form of the Spot Panchanama indicates the rash and negligent driving of the truck trailer.
9. As it has been found that the offending truck was driven rashly and negligently, the appellants would be entitled for just compensation. In this regard it was submitted that as the appellant No.1 was appointed on compassionate ground and she was receiving salary, there was no loss to the family and hence no compensation would be admissible. In this regard reference can be made to the decision in [ENTITY] and ors. and [ENTITY] and ors. (supra). It has been held in clear terms that appointment on compassionate ground and receipt of amounts under life insurance policies cannot be the reason for either refusing or reducing the amount of just compensation.
10. In the aforesaid backdrop it would be necessary to determine the amount of fair compensation. The monthly salary of the deceased of Rs.2,476/-. The annual salary therefore would be Rs.29,712/-. By applying ratio of the decision in [ENTITY] and ors. (supra), 50% amount towards future prospects would be admissible which would be Rs.14,856/-. The total amount of income would thus be Rs.44,568/-. One third amount is liable to be deducted towards personal expenses which is Rs.14,856/-. The balance amount of Rs.29,712/- alongwith multiplier of 17 considering the age of the deceased would make the total loss of income as Rs.505104/-. An amount of Rs.70000/- is admissible under various conventional heads as per the decision in [ENTITY] and ors. (supra). The total compensation therefore to which the appellants would be entitled would be Rs.5,75,000/-. This amount would carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till realisation. It is however to be noted that on 24/04/2008 the present appeal came to be dismissed for want of prosecution. It was restored on 12/06/2018. For the period when the appeal was not on record, the Insurance Company cannot be burdened with interest for that period. Point No.(ii) is answered in aforesaid manner.
The Court notes the valuable assistance rendered by Shri [ENTITY], learned counsel who was appointed to assist the Court in adjudication of the appeal.
11. In the light of aforesaid discussion, the following order is passed :
(i) The judgment of the Claims Tribunal in [CASE NUMBER] dated 17/04/1997 rejecting the claim petition is set aside.
(ii) It is held that the appellants are entitled for compensation of an amount of Rs.5,75,000/-. This amount would carry interest at the rate of 7.5% per annum from 04/10/1991 till 24/04/2008 and thereafter from 12/06/2018 till realisation.
(iii) The First Appeal is allowed in aforesaid terms with no order as to costs.
JUDGE [ENTITY]