1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.348 OF 1994 M/s New India Assurance Co. Ltd. having its Head Office at New India Assurance Building, 87, M.G.Road, Fort, Bombay 400 001 and Branch at Lawrance House, Asef Ali Road, New Delhi and Divisional Office at Adalat Road, Aurangabad, through its Divisonal (Sr.) Manager, Duly Constituted attorney Mr. Sayed Khaleel s/o Sayed Chand. ..Appellant Versus 1. Smt. Shameem Iliyas Shaikh Age 27 years, Occ. Household, 2.Aarif Iliyas Shaikh, Age 9 years, Occ. Education, 3.Afreen Iliyas Shaikh, Age 7 years, Occ. Education, 4.Faranaz Iliyas Shaikh, Age 5 years, Occ. Education, 5. Ajmeen Iliyas Shaikh, Age 2 years, occ. Nil Nos.2 to 5 minor children through their mother guardian appellant No.1 Shameem Iliyas Shaikh. 6. Smt. Aaminabi Mohammad Yousuf Sh. Age 60, Occ. Nil. All residents at Post Kolhar - Bhagwatipur, Tq. Shrirampur, District Ahmednagar. 7. M/s Arya Central Transport Limited, 8, Model Town, Gurgaon, Hariyana. (Owner of Truck No. HNG 4401). ..Respondents ... 2 Advocates appearing for : Appellants: Shri V.N.Upadhye, Respondent Nos.1 to 5 : Shri V.S.Bedre & Shri S.D.Kulkarni Respondent No. 6 : Deleted. ... WITH FIRST APPEAL NO.725 OF 1994 1. Smt. Shameem Iliyas Shaikh Age 27 years, Occ. Household, 2.Aarif Iliyas Shaikh, Age 9 years, Occ. Education, 3.Afreen Iliyas Shaikh, Age 7 years, Occ. Education, 4.Faranaz Iliyas Shaikh, Age 5 years, Occ. Education, 5. Ajmeen Iliyas Shaikh, Age 2 years, occ. Nil Nos.2 to 5 minor children through their mother guardian appellant No.1 Shameem Iliyas Shaikh. 6. Smt. Aaminabi Mohammad Yousuf Sh. Age 60, Occ. Nil. All residents at Post Kolhar - Bhagwatipur, Tq. Shrirampur, District Ahmednagar. ..Appellants Versus 1. M/s Arya Central Transport Limited, 8, Model Town, Gurgaon, Hariyana. (Owner of Truck No. HNG 4401). 2. M/s New India Assurance Co. Ltd. Lawrance House, Asaf Ali Road, New Delhi. (Notice may kindly be served on Branch Office, Abbot Building, Zindi Gate, Ahmednagar) ..Respondents. ... 3 Advocates appearing for : Appellants 1 to 5: S/Shri V.S.Bedre and S.D.Kulkarni, Appellant No.6 : Deleted. Respondent No.1 : Dismissed. Respondent No. 2 : Shri V.N.Upadhye. ... CORAM : R.K.DESHPANDE, J. Reserved on : August 13, 2009 Pronounced on : August 31, 2009 JUDGMENT :- FIRST APPEAL NO.348 OF 1994 1. This appeal challenges the judgment and award dated 30.4.1994 delivered by the learned Member of the Motor Accident Claims Tribunal, Ahmednagar in MACP No.125 of 1991, holding the appellant Insurance company along with respondent No.7 - the owner of the truck, bearing registration No.HNG-4401, jointly and severally liable to pay an amount of Rs.1,73,000/- along with interest at the rate of 12 per cent per annum from the date of filing of the petition i.e. 27.3.1991 till its realisation. The appellant is the insurance company and was arrayed as respondent No.2 in the claim petition. Respondent Nos.1 to 6 are the original claimants and legal heirs of deceased Iliyas resident of Kolhar, Tq. Shrirampur, District Ahmednagar, who died in the accident which occurred on 6.10.1990 at about 11 p.m. Respondent No.7 is the owner of the said truck and was added as respondent No.1 in the claim petition. 4 2. The respondents / claimants had filed MACP No.125 of 1991 under section 166 of the Motor Vehicles Act, 1988 ("the said Act") alleging therein that the truck No.HNG 4401 was owned by the respondent No.7 M/s Arya Central Transport Limited. On or about 6.10.1990 at about 11 p.m. some defect developed in the said truck and it ceased to function. The driver of the truck parked it on the left side of Nagar Manmad Road. The driver and cleaner of the truck tried to find out the fault in the truck. The truck was put on jacks. The driver and cleaner could not succeed in finding out the fault and hence Iliyas, the Motor Mechanic and the proprietor of Dosti Motor Garage, Kolhar was called to find out the fault and repair it. Iliyas went beneath the truck to detect the fault. While he was trying to locate the fault, the jack slipped, the truck came down and Iliyas was crushed to death. The claimants alleged that this accident occurred due to the gross negligence of the driver of the truck. Driver of the truck was acting during the course of his employment with the respondent No.7- owner of the vehicle and hence the respondent No.7 is vicariously liable to pay the compensation to the claimants. It was further alleged that the truck was insured with the insurance company / appellant and hence the appellant is liable to indemnify the owner of the vehicle. 3. The claimants further alleged in the petition that deceased Iliyas was aged about 35 years and was the Motor Mechanic and proprietor of Dosti Motor Garage, Kolhar. It was alleged that his monthly income was Rs.5,000/- and the claimants were dependent on the income of the deceased. It was alleged that the deceased was spending Rs.4,000/- on the dependents. Hence the total claim for compensation of Rs.4,00,000/- was 5 made in the claim petition 4. The respondent No.7, owner of the truck did not file his written statement and the matter proceeded ex-parte against him. The appellant insurance company opposed the claim by filing written statement at Exhibit 24. The appellant admitted that the truck was validly insured with it on the date of the accident. Specific defence that was taken by the appellant was that the accident in question was not arisen out of the use of the motor vehicle. It was the stand taken that when the accident occurred, the vehicle was stationary and it occurred due to gross negligence of deceased himself, who was in charge of the vehicle. It was also alleged that the accident took place due to negligence of truck driver. It was further the submission in the written statement that the claim for compensation was exorbitant and the petition was liable to be dismissed. 5. The Tribunal framed following issues :- "(1). Do the petitioners prove that the accident was caused due to the negligence of the driver of Truck No.HNG 4401 ? (2). Do the petitioners further prove that in the said accident, Iliyas Mohammad Yousuf sustained injuries and died of those injuries ? (3). Are the petitioners entitled to compensation ? If so, the quantum thereof ? (4). What is the extent of liability of each of the opponents in the event the claim is granted ? (5). What order and award ?" 6. Although the insurance company cross examined the 6 witnesses on behalf of claimants, it did not examine any witness on their behalf and filed a purshis Exhibit 65 to the effect that they do not want to lead any oral evidence. 7. The Tribunal recorded a finding that the accident occurred due to the negligence of the driver of the truck No. HNG-4401. It was further held that in the said accident Iliyas sustained injuries and died on the spot. It was further held that the accident arose out of the use of the vehicle. The learned Member of the Tribunal held that even in the absence of proof of negligence, principle of res ipsa loquitur can be invoked to avoid the hardship. It was necessary for the owner or insurance company to examine the truck driver and in the absence of said, it will have to be presumed that the driver of the truck was negligent and the accident caused due to his negligence. The learned Member of the Tribunal determined the monthly income of deceased at Rs.1,500/- per month and after deducting the amount of Rs.500/- the liability in respect of the dependents was determined at Rs.1,000/- per month. The annual dependency was thus worked out to Rs.12,000/-. By applying the multiplier of 14 on the basis of age of deceased as 36 years, the total loss of dependency was arrived at Rs.12,000 x 14 = Rs.1,68,000/-. In addition to this, an amount of Rs.30,000/- under the head of loss of consortium was also granted. Thus, the total compensation payable was determined at Rs. 1,98,000/-. After deducting no fault liability amount of Rs.25,000/-, balance amount of Rs.1,73,000/- was directed to be paid. 8. The aforesaid award is impugned in the present appeal at 7 the instance of the insurance company. Before this Court, it was conceded by the appellant that the accident arose out of the use of the Motor Vehicle. It was contended that the negligence on the part of the driver was not proved. The driver was not made party to the claim petition nor he was called as a witness to establish the negligence on his part. According to the learned counsel for the appellant, in order to attract the liability of the insurance company, the condition precedent is to establish negligence on the part of the driver. According to him, in absence of driver being party and calling him as a witness, the Tribunal has committed an error in holding that the negligence was proved. Learned counsel for the appellant relied upon the decision of the Apex Court in the case of Minu B.Mehta and another Vs. Balkrishna Ramchandra reported in AIR 1977 SC 1248. It was further urged that the master / owner, namely; respondent No.7 herein, is liable for the act of servant, only if the act of servant falls in the course of employment. In order to attract the vicarious liability of the master/owner, it has to be established that the act must be wrongful act, authorised by the master/owner. However, if at the time of the accident, the servant is doing something for himself, then the master is not liable. For this proposition, learned counsel relies upon the decision of the Apex Court in the case of Sitaram Vs. Santanu reported in AIR 1966 SC 1697. It was further alleged that when the accident occurred the vehicle was not under the control, either of the driver or of the owner and hence the insurance company is not liable to pay the compensation. The learned counsel for the appellant further urged that from the evidence on record, it was apparent that it was an act of God i.e. mis-majore and for the same insurance company cannot be held liable. 8 9. The learned counsel for the claimants, on the other hand, supported the judgment and award passed by the Tribunal to the extent of holding the driver of the truck as negligent. It was submitted that the driver of the truck was acting as an agent of the owner and the accident occurred during the course of employment of the driver with the respondent/owner of the truck. At any rate, according to the learned counsel, on the principle of res ipsa loquitur, the owner of the insurance company cannot avoid his liability to pay the compensation. It was submitted that there was no negligence on the part of deceased Iliyas as the evidence brought on record clearly established that before Iliyas went beneath the truck, he checked all the jacks and started the work of repairing. It was submitted that Iliyas was working for about an hour and while he was busy in doing the work, the jack slipped and the body of the truck came down. 10. The learned counsel for the claimants submitted that in view of the fact that the appellant has conceded that the accident arose out of the use of the motor vehicle, the insurance company cannot avoid its liability. It was urged that all the points which are now sought to be raised in the appeal were not raised before the Tribunal and the questions urged by the appellant would involve adjudication on the disputed questions of facts, on which no evidence is led by the parties. Apart from this, learned counsel submitted that the insurance company has failed to establish any of the defences as are available to it under section 149(2) of the said Act. The burden of proof to establish the defence is upon the insurance company which it has failed to establish. It has further been urged that the 9 permission as required by section 170 of the said Act has admittedly not been obtained by the insurer and hence the instant appeal challenging the judgment of the Tribunal, on the grounds other than the grounds of defence available under section 149(2) of the said Act is not maintainable. Learned counsel for the claimants relied upon two judgments of the Apex Court in the cases of Chinnama George Vs. N.K. Raju reported in AIR 2000 SC 1565 and Rita Devi Vs. New India Assurance Co. Ltd. reported in AIR 2000 SC 1930. 11. It is now well settled that the insurance company is not entitled to raise any defence which is not specified under section 149(2) of the said Act. For this purpose, the decision of the Apex Court in the case of British India Vs. Itbar reported in AIR 1959 SC 1331, rendered on analogous provision of section 96(2) of the Motor Vehicles Act, 1939 needs to be seen. Similarly, as per the provisions of section 170 of the Motor Vehicles Act, 1988, the insurance company has to seek leave of the Tribunal to contest the claim on all or any of the grounds that are available to the person against whom such claim is made without prejudice to the provisions contained in sub-section (2) of section 149 of the said Act. It is not in dispute that such a leave, as contemplated by section 170 of the said Act has not been obtained in the instant case, by the insurance company. Decisions of the Apex Court in the cases of Chinnama George (supra) and Rita Devi (supra) lay down that the provision of section 170 of the said Act is mandatory and if such a leave is not obtained, then appeal itself by the insurance company challenging the judgment and award passed by the Tribunal on any of the grounds other than the defences available under 10 section 149(2) of the said Act is not maintainable. All the questions raised by the learned counsel for the appellant in this appeal pertain to the grounds other than those specified under section 149(2) of the said Act and some of the grounds raised in this appeal, were not even raised in written statement of appellant. Hence, the instant appeal is not maintainable and is liable to be dismissed on that short ground alone. 12. It is no doubt true that as per the law laid down by the Apex Court in its decision in the case of Minu Bi (supra), the liability of the owner or the insurance company arises under law of negligence and the principles of vicarious liability is attracted only when the negligence is proved. Mere fact that the party receiving an injury arising out of the use of the vehicle in the public place, cannot justify fastening the liability on the owner and the proof of negligence remains the lynch pin to recover the compensation. In the instant case, the Tribunal has recorded a finding that the driver of the truck was on duty at the time of breaking down of the truck and he got the body of the truck placed on the jacks and therefore was the best person to throw light on the circumstances or the reasons that led the jack to slide and body of the truck to come down. It was held that in the circumstances, it was very much necessary for the opponents (either truck driver or the owner) to examine the driver. In absence of his examination, it was held that it was due to the negligence of the truck driver which caused the accident in question. It was further held that although it is a normal rule that it is for the claimant to prove the negligence, but in some cases, the considerable hardship is caused to the claimant, as true cause of the accident is not known to him but is solely within the knowledge of the 11 opponent who caused it. It was further held that in such cases, claimant can prove the accident but cannot prove how it happened to establish the negligence on the part of the opponent. Such account of hardship is avoided by applying the principle of res ipsa loquitur. All these findings, in my view, need to be confirmed. The learned counsel for the appellant has failed to point out any infirmity in recording of such findings by the tribunal. 13. Apart from above, in my view, it was essential for the owner of the vehicle, who is party to the claim petition to have defended the matter and examined the driver to substantiate his stand. The matter has, however, proceeded ex parte before the Tribunal against the owner. The case of the Insurance Company was that the circumstances under which accident occurred are within special knowledge of driver. Essentially, the stand of Insurance Company was that the deceased himself was negligent and the accident did not arise because of the use of motor vehicle. The nature of stand taken, laid the burden of proof to call driver and examine him, was upon the Insurance Company. In this respect decision of the Apex Court in the case of Rukmani and others Vs. New India Assurance Co. and others reported in (1998) 9 SCC 160, dealing with the question of driver being necessary party to the proceeding and driver not being summoned to examine, need to be relied upon to hold that it is for the owner or the insurance company to call the driver and examine him. The driver was not made party to claim petition by claimant. However, in the instant case, neither the owner nor the insurance company has summoned the driver. Thus, the appellant has failed to substantiate the said ground that the 12 driver of the vehicle was negligent. 14. So far contention of the appellant that the vehicle in question was not under the control of the owner of the vehicle or the driver of the vehicle is concerned, the decision of the Apex Court in the case of Guru Govekar Vs. Filomena F. Lobo, reported in (1988) 3 SCC 1 need to be seen, wherein, the owner handed over the vehicle to the repairer. It was held that the repairer is a third party and hence covered by the Act / statutory policy. In view of this, when it is conceded that the accident arose out of the use of the vehicle, the insurance company cannot avoid its statutory liability to indemnify the owner for the compensation arising out of the accident. FIRST APPEAL NO.725 OF 1994 15. In this appeal preferred by the appellants/claimants enhancement of compensation has been claimed. The Tribunal has directed payment of total compensation of Rs.1,73,000/- along with interest at the rate of 12% p.a. from the date of petition i.e. from 27.3.1991 till its realization. It has already been pointed out that the Tribunal has determined the monthly income of the deceased at Rs.1500/- per month and after deducting an amount of Rs.500/-, the liability in respect of the dependents was determined at Rs.1000/- per month. The annual dependency was worked out Rs.12,000/- and by applying multiplicand of 14 on the basis of the age of the deceased determined as 36 years, the total loss of dependency was worked at Rs. 1200/- x 14 = Rs.1,68,000/-. In addition to that an amount of Rs.30,000/- was also granted towards loss of 13 consortium. Thus, the total compensation payable was determined as Rs. 1,97,000/- and after deducting Rs.25,000/- paid towards no fault liability, Rs. 1,73,000/- was made payable. 16. The learned counsel for the appellants/claimants in this appeal has urged that the Tribunal fixed income of the deceased at the rate of Rs.1500/- per month without considering the evidence brought on record by the claimants. It was urged that an amount of Rs.1500/- per month was determined by way of notional income and not the actual income in support of which the claimants have produced the evidence. The learned counsel, therefore, submitted that the entire evidence brought on record need to be considered to determine the monthly income of the deceased. The learned counsel for the appellant further urged that the Tribunal has committed error in applying multiplicand of 14 as against 16 which is specified in II Schedule of the said Act prepared under section 163-A. The learned counsel for the Insurance Company, on the other hand, opposed the enhancement of claim and has urged that the income of the deceased could not have been more than Rs.1500/- per month as has been calculated by the Tribunal. In this respect, the learned counsel for the Insurance Company supported the order of the Tribunal and submitted that the appellants/claimants are not entitled to enhancement of compensation as urged. 17. In order to find out, the evidence available on record in support of the claim for enhancement, it has to be seen that the claimants examined PW 1 Shamim wife of deceased Iliyas, who deposed that the 14 income of deceased Iliyas was Rs.6,000/- to Rs.7,000/- per month, out of which, he used to pay Rs.4,000/- to Rs.4,250/- for maintenance of the dependents. The second witness examined by the claimants was PW 2 Shaikh Kalim Abdul, who was working on monthly salary of Rs.800/- as a Fitter in Dosti Garage, of which the deceased was the proprietor. He deposed that he was being paid the salary at the rate of Rs.800/- per month by the deceased and has produced the bill books containing the signatures of the deceased, in support of the monthly income of the deceased. He is also an eye witness to the incident, as according to him, he accompanied Iliyas on 6.10.1990 to find out the fault and carry out the repairs on the truck in question, at the instance of the driver of the truck. The claimants also examined PW 3 Changdeo Vithal Jajurkar, Village Development Officer in Village Panchayat Kolhar (Bk.) who produced on record Exhibit 42, a tax receipt in respect of shop of repairs in occupation of the deceased issued by the Gram Panchayat. One Keshavrao Ramnath Thigale was examined as PW 4 by the claimants. This witness has a transport business, having his office at Kolhar (Bk.) from 1978 and claimed to be owner of five trucks. He deposed that he new Iliyas, who used to repair his trucks. He further deposed that he used to pay an amount of Rs.2,000/- to Rs.2,500/- per month to Iliyas towards the job of repairing of his trucks. He proved the certificate at Exhibit 52. PW 5 Charanjit Ramsaran Khanduja, the Superintendent in Pravara Cooperative Society, was examined by the claimants. He deposed that the society owns four tankers, two jeeps and one truck which were used to be repaired by deceased Iliyas. He produced and proved Exhibits 56/1 to 56/7 - bills, Exhibit 57 - voucher and Exhibit 58 - receipt, the documents in respect of repairs carried out by the deceased. 15 He deposed that the amount of Rs.3,000/- to Rs.3,500/- per month was being paid to deceased Iliyas. 18. From the perusal of the cross examination of the aforesaid witness, it is apparent that nothing against the claimants has been elicited by the Insurance Company. P.W. 4 Keshavrao and P.W. 5 Charanjit are the independent witnesses and there is no reason to doubt their testimony. Even there is nothing to doubt the evidence of P.W. 1 Shamim, the widow of the deceased and P.W. 2 Sheikh, working as a fitter in the garage of which the deceased was proprietor. The evidence of all the witnesses appeared to be normal and natural and hence, there is no reason to disbelieve any of the witnesses. The Tribunal has, in fact, not recorded any finding to disbelieve the evidence of these witnesses unless there