1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.888 OF 1996 ALONGWITH FIRST APPEAL NO.889 OF 1996 ALONGWITH FIRST APPEAL NO.891 OF 1996 ALONGWITH FIRST APPEAL NO.117 OF 1997 The Oriental Insurance Co. Ltd. .. Appellant versus Shaukat Rasul Mohamad Bagwan & Anr. .. Respondents Mrs.Anita A. Agarwal for the appellant in all appeals. Mr.G.S.Hegde with Mr.C.M.Lokesh for respondent No.1 in all appeals. Mr.Dhawal Patil i/by Mr.S.P.Thorat for respondent No.2 in F.A.No. 888/96 and for respondent Nos.2 and 3 in F.A.No.891/96. Mr.Uday Warunjikar for respondent Nos.2 to 5 in F.A.No.889/96. CORAM : A.S.OKA, J. DATE : 23rd March 2010. JUDGMENT: . These appeals can be disposed of by a common judgment as the appeals arise out of the claim petitions arising out of the same accident. With a view to appreciate the submissions, a brief reference will have to be made to the facts of the case. The accident occurred 2 on 18th September 1991. A group of about eight persons was travelling by a tempo on the fateful day. They were travelling by Pune- Banglore National Highway. The appellant is the insurer of the said tempo. The accident occurred at about 12.15 in the midnight. The case made out by the claimants is that tempo was being driven by the driver in rash and negligent manner. Certain persons died as a result of the accident and some of them sustained injuries. Separate claim petitions were filed under section 166 of the Motor Vehicles Act, 1988 and by the impugned judgments and awards the same has been allowed. 2. First Appeal No.888 of 1996 is preferred for challenging the judgment and award in Claim Petition No.381 of 1992 which was filed by one Asha Mali claiming compensation on account of injuries sustained by her in the said accident. First Appeal No.889 of 1996 has been preferred for challenging the award in Claim Petition no.214 of 1992 filed by the legal representatives of one Mangal Ranade who died in the accident. First Appeal No.891 of 1996 arises out of the Claim Petition No.167 of 1992 which was filed by the sons of one Tukaram who died in the accident. First Appeal No.117 of 1997 has been preferred by the appellant for challenging award made in Claim Petition No.166 of 1992 filed by the claimants in Claim Petition No. 3 167 of 1992 claiming compensation on account of demise of their mother in the accident. SUBMISSIONS 3. The learned counsel appearing for the appellant has taken me through the impugned judgments and awards. She pointed out that the matador in question was insured as a private car and there were conditions in the policy requiring that the vehicle can be used only for social, domestic and pleasure purposes and for insured’s own business. She pointed out that there is material on record to show that the deceased/injured travelling in matador were fare paying passengers. She submitted that the passengers were carried in the vehicle for hire and reward in breach of terms and conditions of the policy on insurance. She submitted that some of the statements recorded by the police clearly show that the victims of the accident were being carried for hire or reward. She invited my attention to the findings of the Tribunal on this aspect and submitted that this was a clear case where breach of terms and conditions of the policy was established by the appellant and therefore the appellant ought not to have been held liable to pay compensation. She submitted that the compensation awarded in each claim is exorbitant and there is no 4 basis for the claim for compensation. She submitted that in any event unless negligence on the part of the driver of the matador was proved there was no occasion to grant any compensation. The learned counsel appearing for the claimants in First Appeal No.888 of 1996 and First Appeal No.891 of 1996 supported the impugned judgment and awards. The learned counsel appearing for the claimants in First Appeal No.889 of 1996 submitted that there was enough evidence on record to show that the deceased was earning the substantial income and in fact the compensation granted is on the lower side. I have also heard the learned counsel appearing for the 1st respondent who is the owner of the matador. BREACH OF TERMS AND CONDITIONS OF POLICY 4. The first question which needs to be considered is as regards the breach of terms and conditions of the policy. There is no dispute that on the date of the accident the matador was insured with the appellant. It is settled law that burden of proving breach of terms and conditions of the policy of insurance is always on the insurer. In one of the claim petitions, the owner of the matador was examined who denied that the victims were travelling as fare paying passengers. Reliance was placed on statements of certain witnesses 5 recorded by the police during the course of investigation. In fact one Manohar Chikhale , P.S.I was examined as a witness in Claim Petition No.214 of 1992 by the Appellant . In the cross-examination, he admitted that he recorded statement of the owner of the matador on 27th September 1991. However, he stated that the owner did not state that the persons travelling in the matador were travelling as fare paying passengers. An attempt was made by the appellant to discharge the burden by examining the said police officer. However, the said police officer did not support the version of the appellant. It must be stated that here that even the evidence of the owner of the matador is against the appellant on this point. In Claim Petition No. 381 of 1992 (First Appeal No.888 of 1996) the claimant is the injured person. She stated that occupants of the matador were members of the bhajani mandal who assembled at a particular place and they were on their way to Pune. She stated that there were 12 ladies in matador and in addition to driver and one Dayal. In the cross- examination she stated that no payment was made by any of the members of the bhajani mandal for journey. Thus, the evidence on record did not support the contention of the appellant that the passengers were carried in the matador for hire or reward. What has been held by the Tribunal is that the appellant failed to discharge the burden of proving the breach of terms and conditions of the policy. 6 The said finding is supported by the evidence on record. The Tribunal was right to that extent. QUANTUM OF COMPENSATION FIRST APPEAL NO.888 OF 1996: 5. Now turning to the quantum of compensation, in First Appeal No.888 of 1996 the claimant in Claim Petition No.381 of 1992 was granted compensation of Rs.67,000/- inclusive of no fault liability. The learned counsel appearing for the appellant submitted that there was no evidence on record to show that the claimant therein was carrying on tailoring business. She stated that claimant admitted a sum of Rs.12,000/- was received by her husband by way of reimbursement. 6. The claimant relied upon medical certificate at Exhibit 25 issued by Dr.Hardikar. There was disability certificate issued by Dr.Hardikar produced at Exhibit 25 which certifies permanent disability at 20%. The evidence on record discloses that she sustained three fractures and grievous injuries on the ribs and nose. She was hospitalized for considerably long time and she was under treatment. On the basis of 7 bill issued by Dr.Hardikar , a sum of Rs.14,732/- was granted by the Tribunal. Bills of the medicines worth Rs.674.50/- were produced by the claimant. The claimant was granted a sum of Rs.240/- for visits to Pune for undergoing check up and a sum of Rs.5,500/- on special diet. Total compensation of Rs.20,696/- was awarded under the said heading. It is not possible to find fault with the said finding. Considering three fractures and other injuries, sum of Rs.10,000/- has been granted on the ground of mental pain and suffering. 7. As far as tailoring business of the claimant is concerned, in paragraph 5 of the deposition she stated that she was doing tailoring business for about 12 years and was earning Rs.800/- per month. There is no cross-examination made on this aspect except for asking one question as regards maintaining the accounts of the business. The age of the claimant on the date of accident appears to be about 42 years. Though the claimant claimed that there is complete loss of earning capacity, by taking monthly income at Rs.800/-, multiplier of only five has been applied by the Tribunal thereby awarding a sum of Rs.48,000/- on account of loss of income. The said amount is reasonable in as much as a higher multiplier could have been applied by the Tribunal. The finding of the Tribunal is that entitlement compensation of more than Rs.78,000/- was proved by the claimant. 8 However, the Tribunal noted that the claim for compensation was restricted by the appellant to Rs.67,000/-. That takes care of a sum of Rs.12,000/- received by the husband of the claimant. Hence, so far as First Appeal No.888 of 1996 is concerned, no fault can be found with the quantum of compensation. FIRST APPEAL NO.889 OF 1996: 8. Now turning the First Appeal No.889 of 1996, the same arises out of Claim Petition No.214 of 1992 filed by the husband and three sons of deceased Mangal Ranade. Admittedly, the age of the deceased was 62 years. The claim made by the claimants was that she was earning Rs.1800/- per month by doing tailoring work and the business in shares. The claimant – husband’s age was 67 years and three sons were aged 38, 36 and 29 years respectively. The youngest son of the deceased stepped into witness box and stated that the deceased had borrowed certain amount from Co-operative bank for business. He has stated on her business of shares she used to earn Rs.1,000/- or Rs.1200/- per month and by tailoring work she used to earn Rs.5000/- per month. It is alleged that she was earning Rs.300/- per month from bhajani mandal. In the cross-examination he admitted that no documents have been placed on record to show that 9 his mother used to sale and purchase share or that she was deriving income from such transactions. He admitted that there was no document to show that she was deriving income from the tailoring business. The learned Member of the Tribunal has observed that there is no evidence on record to show that she used to pay sum of Rs.1,200/- per month to the family. The learned Judge came to the conclusion that compensation of Rs.75,000/- was payable to the claimants. Thus, the witness examined by the claimants admitted that there was no specific documentary evidence of the income of the deceased. By amendment made in 1994 to the said Act of 1988 by which structured formula in the Form 163A was introduced, notional income of the persons who are not earning was taken at Rs.1250/- per month. This is a case where accident has occurred in the year 1991. Therefore, notional income of the deceased can be taken at Rs. 1,000/-. After deducting 1/3rd on personal expenditure, the monthly dependency comes to Rs.666/- and yearly dependency is Rs.8692/-. The age of the deceased was 62 years. In view of law laid down by the Apex Court in the case of Sarla Verma (supra), multiplier which can be applied is of 7 years. However, age of the 1st claimant is obviously more than the age of the deceased and therefore multiplier will have to be determined on the basis of the age of the 1st claimant which was 67 years. Therefore, multiplier of 5 will have to be applied. 10 Hence, compensation payable comes to Rs.43,460/-. To that usual amount Rs.10,000/- will have to be added. The compensation can be rounded off to Rs.54,000/- which would be inclusive of no fault liability. To that extent the award needs modification. FIRST APPEAL NOS. 891 OF 1996 AND 117 OF 1997: 9. The claim petitions subject matter of First Appeal No.891/1996 and First Appeal No.117/1997 have been preferred by the same claimants claiming compensation on account of death of their parents. In both the cases compensation of Rs.45,000/- has been granted. The age of the father of the claimants was 55 years at the time of accident. The age of the mother has been accepted as 50 years. In both the cases, compensation of Rs.45,000/- has been awarded inclusive of no fault liability. By any calculation, the said compensation cannot be said to be excessive. Hence, I pass the following order: : O R D E R : (a) First Appeal No.881 of 1996, First Appeal No.891 of 1996 and First Appeal No.117 of 1997 are hereby dismissed with no orders as to costs. 11 (b) First Appeal No.889 of 1996 is partly allowed. The compensation of Rs.54,000/- inclusive of no fault liability shall be payable to the claimants instead of Rs.75,000/-. Rest of the award is confirmed. There will be no orders as to costs. (c) The amounts deposited by the appellant which are pending in this Court along with interest accrued thereon shall be transferred to the concerned Tribunal. The concerned Tribunal will pass appropriate order as regards withdrawal/disbursement of the amounts after hearing the parties. (A.S.OKA,J)