1 F.A..No. 1499 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.1499 OF 2010 1.Kumari Sana Afarin Jamilmiya Sayyad, Age : 19 years, Occu. Education, R/o Marul, Taluka Yaval, District Jalgaon 2.Kumar Mohammad Juned Akhatar, Jamilmiya Sayyad, Age : 17 years, Occu. Education, 3. Kumari Sadiya Naj Jamilmiya Sayyad, Age : 12 years, Occu. Education, 4.Kumar Mohammad Avais Akhatar Jamilmiya Sayyad, Age : 12 Years, Occu. Education, 5.Nisrali Julfekhar Alis Sayyad, Age : 69 years, Occu.Nil R/o Murul, Taluka Yaval, District Jalgaon (Appellants No.2 to 4 are minors, U/g. Of Grandfather (Appellant No.5) ..APPELLANTS (Orig. Claimants) VERSUS 1.Janimiya Khalilmiya Sayyad, Age : 45 years, Occu. Service, R/o Railway Quarter, Room No.12-E, Nandurbar, District Nandurbzar 2 F.A..No. 1499 of 2010 2.Royal Sundaram Alliance Insurance Co. Ltd., Regional Manager, 46, White Road, Chennai (Tamilnadu) ..RESPONDENTS Mr S.G. Chapalgaonkar, Advocate for the appellants; Respondent no.1 served; Mr A.S. Deshpande, Advocate for respondent no.2 CORAM : MRS MRIDULA BHATKAR, J. DATE : 29th September, 2011 ORAL JUDGMENT : Admit. With the consent of the learned Counsel for the parties this appeal is heard finally at the stage of admission. 2. By this appeal the appellants/original claimants challenge the judgment and award, dated 30.3.2010, rendered by the Member, Motor Accident Claims Tribunal, Nandurbar in M.A.C.P. No.192 of 2005. 3. Such of the facts as are necessary for the decision of this appeal are stated thus :- Four minor children, through their maternal grand-father, have filed the claim application. The mother of the appellants/original claimants no. 1 to 4 died in the accident. Their father is original respondent no.1 and insurance company is respondent no.2. On 12.3.2005 at Navapur, within 3 F.A..No. 1499 of 2010 the jurisdiction of Visarwadi police station, District Nandurbar, accident took place at about 12.30 p.m. Deceased Kamar Jamali was sitting on the pillion seat of the motorcycle No.MH 39-9767 owned by her husband – respondent no.1. Respondent no.1 was riding the motorcycle and they were travelling from Navapur to Nandurbar. As they were going, respondent no.1 was rash and negligent and neglected the bad condition of the roads and, therefore, Kamar Jamali fell down from the motorcycle and she died immediately on the same day. Kamar Jamali was aged 39 years and was working as a Teacher in a primary school. She was drawing approximately Rs.10,000/- per month. So, a claim was filed by her children through their grand-father seeking compensation of Rs. 20,00,000/-. 4. Respondent no.1 father did not appear and did not contest the claim. However, respondent no.2 insurance company filed its written statement and contested the claim. In the written statement filed before the Tribunal, the insurance company raised defences that the claimants did not know the rash and negligent driving of the respondent no.1. So also, the insurance policy did not cover the risk of the pillion rider. The Tribunal accepted defences of the insurance company and dismissed the entire claim. Hence, this appeal. 5. Learned Counsel for the appellants submitted that the Tribunal has committed an error in holding that the claimants have failed to prove that 4 F.A..No. 1499 of 2010 deceased died due to rash and negligent driving of respondent no.1. It was argued that claimant no.1 has examined herself and has stated about fall of the deceased from the running motorcycle which was in speed and she has deposed that respondent no.1 was rash and negligent at the relevant time. It is submitted that respondent insurance company should have examined respondent no.1 on the point of rash and negligent driving. As respondent no.1 did not step in the witness box, the fact of rash and negligent driving is not denied by the respondents and hence it should have been accepted by the Tribunal. Learned Counsel pointed out that risk of the pillion rider is not covered under the insurance policy. He submitted that this Court in First Appeal No.2057 of 2010, Popat Kachru Kedar vs. Jyoti Santosh Kedar & ors., has considered that the comprehensive package policy covers the death or injury sustained to a pillion rider on two wheeler and also an occupant in a private car and there are no limits on the liability and the insurance companies are liable to reimburse the claim in its entirety. Learned Counsel for the appellants argued that the Tribunal ought to have taken the similar view and the claim should have been allowed by awarding the entire amount as claimed by the appellants. 6. Per contra, learned Counsel for the insurance company submitted that it was for the claimants to prove that respondent no.1 was rash and negligent. However, no evidence is tendered on that point by the claimants. In the absence of any evidence, the Tribunal has rightly 5 F.A..No. 1499 of 2010 held that the accident did not take place due to rash and negligent driving of the vehicle. He submitted that the reasoning given by the Tribunal on all the issues is legal and not to be disturbed. 7. In the course of the arguments on the point, whether the risk of pillion rider is covered under the comprehensive policy or not, the judgment of this Court which is referred above, was pointed out and discussed. In the judgment the decision of the Delhi High Court in M.A.C. Application No.176 of 2009, in the case of Yashpal Luthra & anr. Vs. United India Insurance Co. Ltd. & anr. is referred, wherein the same issue of pillion rider was raised and decided. At the time of dealing with that issue, Delhi high Court had called the competent officer of United India Insurance Co. and Deputy Manager of Insurance Regulatory & Development Authority (IRDA) who were examined on oath and the concerned officer of IRDA has deposed that the Tariff Advisory Committee had issued instructions on 2.6.1986 and also a Circular was issued on 18.3.1978 about the risk of the pillion rider and the occupant in the car under the comprehensive package policy. There was a meeting on 2.11.2009 of the Chief Executive Officers of all the insurance companies which was convened by IRDA and Delhi High Court has appointed amicus curiae, who attended the meeting. After discussion and due deliberations all the Chief Executive Officers agreed that the Circular dated 16.11.2009 issued by IRDA is to be complied with. By the said Circular risk of the pillion rider and occupant in the car is covered 6 F.A..No. 1499 of 2010 under the comprehensive/package policy, irrespective of the terms of the policy. Pursuant to the said meeting, IRDA issued Circular on 3.12.2009 on this point. All these details of the meeting and the Circulars are reproduced in the judgment of Popat Kedar (supra). The judgment is dated 11.8.2011. Learned Counsel for the insurance company, after going through the judgment and after obtaining the instructions from the insurance company fairly conceded that risk of the pillion rider is covered under the comprehensive/package policy and, therefore, the insurance company does not want to stick up to that defence. 8. Considering these submissions of the Counsel of both the parties, following points arise for determination :- (1) Whether the Tribunal has committed error in holding that the accident has not occurred due to rash and negligent driving of respondent no.1 ? Ans : In the affirmative. (2) Whether the appellants are entitled to amount of compensation as claimed ? Ans : Partly in the affirmative. 7 F.A..No. 1499 of 2010 (3) What should be the quantum of compensation? Ans : As calculated in the final order. 9. It is a very peculiar claim application where the appellants no.1 to 4 are the minor children who have filed claim for the compensation on account of the death of their mother. They filed this petition against their father, who is made respondent no.1. It is an admitted fact that deceased Kamrabi lost her life on 12.3.2005 while she was proceeding from Navapur to Nandurbar at 12.30 in the noon near Visarwadi. Respondent no.1 was riding his own motorcycle and his wife deceased Kamrabi was sitting as a pillion rider. Appellant no.1, the eldest daughter has tendered evidence before the Court and it is stated that respondent no.1, her father, was riding the motorcycle and when the motorcycle was in speed, her mother fell down and died immediately after the fall. It was deposed that their father respondent no.1 was driving the vehicle in rash and negligent manner and, therefore, her mother fell down. Respondent no.1 who was riding the motorcycle, was the best person to know how the incident had occurred. He is the only person who knew whether he was driving the motorcycle in rash and negligent manner. However, he is a respondent and also father of the claimants and husband of the deceased. He is responsible, rather he was blamed for causing death of his wife and mother of the appellants. So, it is not expected that respondent no.1 would step in the witness box for the appellants. The Tribunal has committed an error in holding that it is a collusive claim. 8 F.A..No. 1499 of 2010 Children of deceased mother have every remedy to go before the Tribunal and ask compensation from the Driver and owner of the vehicle and also from the insurance company. In this matter, the person who was a Driver and he owner of the vehicle happened to be father of those children. instead of father, if any other person would have been driving the vehicle, then the children have filed the similar claim and, therefore, only because respondent no.1, co-incidentally a father of the children, claim cannot be considered as collusive but the status of respondent no.1 in the claim is not a father but is to be considered as the Driver of the motorcycle on which the deceased was sitting as a pillion rider. The status is to be independently considered. 10. Respondent no.1 naturally did not come to the Court and did not deny the allegations. Respondent – insurance company did not call respondent no.1 as a witness and did not examine the witness. Thus, evidence given by the appellant no.1 was not denied or controverted therefore, that evidence on the point of rash and negligent driving ought to have been accepted by the Tribunal. It is a settled position of law that the strict rules of the Evidence Act are not applicable in the proceedings before the Accident Claims Tribunal being this a beneficial legislation. On this point I place reliance on the judgment of the Supreme Court in the matter of Bimla Devi & ors. vs. Himachal Road Transport Corpn. & ors., reported in 2009 AIR SCW 4298. 9 F.A..No. 1499 of 2010 11. Moreover, the way in which the accident has taken place is also to be taken into account. The pillion rider can fall from the two wheeler, when the vehicle is in the speed. If the Driver is rash and negligent and having disregard to the conditions of the bad road is driving the vehicle, then the pillion rider may fall. Consequently, if pillion rider is himself/herself is sitting without taking due care, then he/she may fall. However, even if a person falls from the vehicle, if the vehicle is in a very slow speed, then he may get injured severely but may not die. There is also a rider that on which part a person falls. If the vehicle is very speedy, then such fall from the vehicle may definitely be fatal. As held earlier, appellant no.1 has deposed about the rash and negligent driving of respondent no.1, which went uncontroverted and, therefore, though there is some possibility of deceased not taking due diligence and care while occupying the pillion seat, the fact of rash and negligent driving of respondent no.1 is proved. Though respondent no.1 is held rash and negligent while driving the vehicle, the submissions of learned Counsel for the respondent insurance company require consideration. It was argued that there was a contributory negligence and, therefore, the liability of insurance company to be reduced to 50%. The submissions are partly accepted and the apportionment of the contributory negligence is reduced to 70% and 30%, respectively. So, the insurance company is held liable. Tribunal while dealing with the issue of income of the deceased has fixed the monthly income of deceased at Rs.10,380/- as she was working as a Teacher in a primary school and she was 10 F.A..No. 1499 of 2010 permanent and drawing salary of Rs.10,380/- per month. The Tribunal considered the future loss and the monthly income and rightly fixed the salary as Rs.13,000/-. 11. At the time of death, deceased Kamarbi was 39-1/2 years old. So, Rs.13,000 x 12 x 16 comes to Rs.24,96,000/-. As per the settled principles of law, 1/4th of the salary is deducted towards the personal expenditure of the deceased, which comes to Rs.18,72,000/-. 30% of the said amount, which is apportionment of the contributory negligence i.e. Rs.5,61,000/- and thus, the amount of compensation comes to Rs. 13,10,400/-. Tribunal has considered the expenses of funeral + loss of love and care together comes to Rs.20,000/- and thus, the total amount of compensation is fixed at Rs.13,30,400/-, payable to the appellants/claimants. Respondent no.2 insurance company is held liable to pay Rs.13,30,400/- with interest at the rate of 6% per annum from the date of the filing of the claim petition and Rs.50,000/- deposited by the insurance company be adjusted. Four minor children shall get equal 1/4th share. However, if the children are minor, then the amount is to be invested in a fixed deposit in a Nationalized Bank till they attain majority. Record shows that appellants no.1 & 2/original claimants are now major and, therefore, they are entitled to get 1/4th share each of the amount. Respondent no.2 insurance company shall deposit the amount within twelve weeks from today. 11 F.A..No. 1499 of 2010 Appeal is partly allowed on the above terms with no order as to costs. ( MRS MRIDULA BHATKAR, J.) amj/fa1499.10