: 1 : 1447-11-fa-Judgment=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1447 OF 2011 Smt. Alka Pandurang @ Deelip Boraste & Ors. .. Appellants v/s. Shri Santosh Sakharam Gite & Ors. .. Respondents ......... Mr. Vivek V. Salunke i/b Mr. P.B. Shah for the appellants Mr. Nikhil Pujari i/b Ms. Smita Mane for respondent no.2 ......... CORAM : A.V. NIRGUDE, J DATE : 8th NOVEMBER, 2011. P.C. : 1. As indicated by order dated 5th August, 2011 and at the request of appellants, the appeal is taken up for final hearing at the stage of admission. 2. The appeal is filed against the judgment and award passed by the learned Member, Motor Accident Claims Tribunal, Nashik in Motor : 2 : 1447-11-fa-Judgment=.sxw Accident Claim Petition No.109 of 2007 dated 24th February, 2011 dismissing the appellants’ claim. The facts leading to this litigation are as under. 3. It is common ground that on 14th October, 2006, Pandurang, husband of appellant no.1 and father of appellant no.2 to 4 died in vehicular accident. It is further common ground that Pandurang was a driver and was travelling in the vehicle which met with accident. It is further common ground that when the accident took place, Pandurang was not driving the vehicle but was sleeping and the other driver (the respondent no.1) was driving the vehicle. The vehicle met with the accident because the tyre of the front right side of the vehicle suddenly burst. Due to accident, Pandurang died on the spot. It is further common ground that a report of the accident was made to the police and the police registered offence under Section 279, 304-A, 427 of IPC and under Section 184 of M.V. Act against respondent no.1. The appellants thereafter lodged a claim against the respondents who are driver, owner and insurer of the vehicle involved. The respondent nos.1 and 2 did not oppose the claim. They did not file any written statement. The respondent no.3, the Insurance Company opposed the claim on the : 3 : 1447-11-fa-Judgment=.sxw following grounds. (i) That the vehicle was a commercial and Pandurang was not suppose to travel in the vehicle. (ii) The respondent no.1, the driver of the vehicle did not hold valid and effective driving licence at the time of accident. (iii) In view of the above two grounds there occur a breach of condition of the policy. 4. In view of this rival contentions, the learned Member of the MACT, Nashik framed issues and allowed the parties to lead evidence. The appellants lead evidence through deposition of the appellant no.1. In this deposition, she clearly stated that Pandurang was a driver and was driving vehicles for last 22 years and that he was required to travel in the vehicle in question because he was driver of the vehicle. Appellant no.1 further claims that Pandurang was 45 years old and was engaged as a driver of the vehicle. She also stated that Pandurang was getting salary of Rs.3,500/- per month and that he was giving her Rs.2,500/- for household expenses. She stated that at the time of accident, Pandurang was sleeping in the vehicle and the respondent no.1 was driving the same. There is no : 4 : 1447-11-fa-Judgment=.sxw dispute about the fact that the vehicle met with the accident and Pandurang died. The learned Member however, took a peculiar view of the matter and held that the claim should be dismissed because the accident took place due to rash and negligent driving of respondent no.1. He held that the accident took place due to technical difficulty. The learned Member did not examine the other issues raised by the Insurance Company as to whether their occur a breach of condition of Insurance Policy. After hearing the learned advocate appearing for the appellants and after going through the record, following points arose to my consideration. (i) Whether the appellants proves that the respondent no.1 was negligent at the time of the accident and was solely responsible for the accident :- As mentioned above, the evidence on record clearly shows that the vehicle at the relevant time was driven by the respondent no.1. The time of the accident was 1.00 a.m. At that time, the driver of the vehicle namely Pandurang was sleeping in the vehicle and apparently he allowed his cleaner to drive the vehicle. It is came on record that the cleaner has not holding requisite licence to drive the commercial vehicle. The cleaner was holding licence of Light Motor Vehicle. It has further came in evidence : 5 : 1447-11-fa-Judgment=.sxw that the respondent no.1 while reporting the accident clearly mentioned that the accident occurred because the front right side tyre of the vehicle suddenly burst. He informed to the police that due to this mishap, the vehicle went on right side and fell in a ditch. When the police examined the vehicle, they found the right side tyre in the burst condition. If the tyre of the vehicle bursts, the driver of the vehicle in most of the conditions would be held responsible for such mishap. Bursting of tyre occurs when a vehicle is driven in excessive speed in hot climate. Sometimes, tyre bursts due to getting old and worn out. The driver of such vehicle is suppose to know that the tyres of his vehicle are worn out and he should take precautions while driving the vehicle. Sometime, the tyre would burst if the vehicle is driven on rough surfaces. Even at that time, the driver is suppose to take adequate care by reducing the speed of the vehicle for avoiding bursting of the tyres. The driver is also suppose to check the air pressure in the tyres from time to time to avoid bursting of tyres. If the respondent no.1 accepted responsibility of driving of vehicle, he ought to have taken adequate care for avoiding burst of tyre. The bursting of tyre in this case thus was not the technical problem of the vehicle. The learned Member committed gross error in appreciating this aspect. He ought to have recorded a finding that the driver was rash and negligent while : 6 : 1447-11-fa-Judgment=.sxw driving the vehicle at the time of accident. However, it cannot be said that the respondent no.1, driver of the vehicle was solely responsible for the accident as also apparently, Pandurang also contributed for the said mishap. The evidence on record clearly proves that respondent no.1 was not the driver of the vehicle at all. He was the cleaner. He did not have driving licence. In view of these facts, Pandurang was the sole driver of the vehicle and was solely responsible for safety of the vehicle. He ought not to have handed over control of the vehicle to his cleaner. Assuming that Pandurang at that time was not fit enough to drive the vehicle due to sleepiness, he ought to have stopped the vehicle, taken a nap and then resume driving of the vehicle. In view of this it could easily be said that even Pandurang was partly responsible for the accident. (ii) Whether the Insurance Company to prove that their occur a breach of condition of Policy :- The respondent no.3, the Insurance Company did not lead evidence in support of their case but to prove that respondent no.1, the driver of the vehicle did not held valid driving licence at the time of accident because the appellants themselves produced on record a certified copy of the driving licence held by respondent no.1 at the time of accident. As said above, he hold a driving licence for LMV. The Insurance : 7 : 1447-11-fa-Judgment=.sxw Company thus should prove that their occur a breach of condition of the Policy. The Insurance Company could not prove that Pandurang could not have used the vehicle for sleeping because it was a commercial vehicle. They did not lead any evidence in support of their case. In addition to that evidence clearly established that Pandurang was the driver of the vehicle and was, therefore, present in the vehicle at the relevant time. (iii) To What amount the appellants are entitled for as compensation :- The appellants have sought a modest claim of Rs.3 lakh as compensation. However, going by the table provided in the IInd Schedule of the Motor Vehicle Act, 1988, multiplier 13 could be applicable to this case. The evidence on record proves that Pandurang was having monthly income of Rs.3,500/- out of which 1/3rd would go to his personal expenses. The remaining amount is approximately Rs.2,400/- would be available for household expenses. Applying multiplier of 13 to this sum, the total compensation payable would come to Rs.3,74,000/-. As said above, since the deceased himself was partly responsible for his death, I am inclined to grant 50% of this amount as compensation to the appellants, which comes to Rs.1,87,200. The appellants shall also be entitled to 6% interest on the said sum from the date of the accident till the amount is realized. : 8 : 1447-11-fa-Judgment=.sxw 5. Accordingly, following order is passed. (i) The appeal is allowed. (ii) The respondent nos. 1 and 2 shall pay Rs.1,87,200/- with 6% interest on the said sum from the date of the accident till the amount is realized. (A.V. NIRGUDE, J.)