1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FA/3543/2008 (With CA/4327/2008 In FA/3543/2008) National Insurance Co. Ltd., ...APPELLANT VERSUS Master Yogesh Prakash Kandelkar and others. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr. K.B.Jadhavar, Adv., for respondent nos. 1 and 2. Mr.M.K.Goyanka, Adv., for respondent no.4. Mr.S.B.Patil, Adv., for respondent no.5. Mr.A.G.Kanade, Adv., for respondent no.6. Respondent No.3 deleted as per Court order dt. 4.8.2008. ... WITH FA/3544/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS Dilip Sukdeo Suryavanshi and others. ... RESPONDENTS ... 2 Mr. P.P.Bafna, Advocate, for the appellant. Mr. B.K.Pawar, Adv., h/f Mr. A.B.Kale, Adv., for respondent no.1. Mr.M.K.Goyanka, Adv., for respondent no.2. Mr.V.B.Patil, Adv., for respondent no.3. Mr.A.G.Kanade, Adv., for respondent no.4. ... WITH FA/3545/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS Muktabai Dnyandeo Nimbolkar and others. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr. B.K.Pawar, Adv., h/f Mr. A.B.Kale, Adv., for respondent no.1 and 2. Mr.M.K.Goyanka, Adv., for respondent no.3. Mr.V.B.Patil, Adv., for respondent no.4. Mr.A.G.Kanade, Adv., for respondent no.5. ... WITH FA/3546/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS 3 Sunita Ramesh Khiralkar and and another. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr. B.K.Pawar, Adv., h/f Mr. A.B.Kale, Adv., for respondent no.1 and 2. Mr.V.B.Patil, Adv., for respondent no.4. Mr.A.G.Kanade, Adv., for respondent no.5. ... WITH FA/3547/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS Yogesh Prakash Kandelkar and another. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr.K.B.Jadhavar, Adv., for respondent nos. 1 and 2. Mr. V.B.Patil, Adv., for respondent no.5. Mr. A.G.Kanade, Adv., for respondent no.6. Respondent no.3 deleted as per Courts order dt. 4.8.2008. ... WITH 4 FA/3548/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS Yogesh Prakash Kandelkar and another. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr.K.B.Jadhavar, Adv., for respondent nos. 1 and 2. M. M.K.Goyanka, Adv., for respondent no.4. Mr. V.B.Patil, Adv., for respondent no.5. Mr. A.G.Kanade, Adv., for respondent no.6. ... WITH FA/3549/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS Lilabai Ninaji Dhundale and others. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr.B.K.Pawar, Adv., h/f Mr. A.B.Kale, Adv., for respondent nos. 1 to 4 M. M.K.Goyanka, Adv., for respondent no.5. Mr. V.B.Patil, Adv., for respondent no.6. Mr. A.G.Kanade, Adv., for respondent no.7. ... 5 WITH FA/3550/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS Yogesh Prakash Kandelkar and another. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr.K.B.Jadhavar, Adv., for respondent nos. 1 and 2. Mr. M.K.Goyanka, Adv., for respondent no.4. Mr. V.B.Patil, Adv., for respondent no.5. Mr. A.G.Kanade, Adv., for respondent no.6. Respondent no.3 deleted as per Courts order dt. 4.8.2008. ... WITH FA/3551/2008 National Insurance Co. Ltd., ...APPELLANT VERSUS Pramilabai Rajaram Surwade and others. ... RESPONDENTS ... Mr. P.P.Bafna, Advocate, for the appellant. Mr.B.K.Pawar, Adv., h/f Mr. A.B.Kale, Adv., for respondent nos. 1 and 2. 6 M. M.K.Goyanka, Adv., for respondent no.3. Mr. V.B.Patil, Adv., for respondent no.4. Mr. A.G.Kanade, Adv., for respondent no.5. ... CORAM : K.U. CHANDIWAL, J. DATED : 2nd July, 2009 ... P.C.:- 1. The appeals are taken together for final hearing at admission stage. R & P is called, verified by the respective Counsel. It is informed that other three/four appeals arising out of the same accident are pending. However, they could not be taken up owing to pending objections. 2. On 9.6.2000 there was an an accident between a Bus (MPSRTC) and a jeep. In the accident, precious lives of 13 persons was taken while 7 to 8 passengers had injuries. 3. The claimants lodged their respective petitions under Section 166 of the Motor Vehicles Act. The Oriental Insurance Company, insurer of the jeep, denied its liability on the ground that the Jeep was having a capacity of 9+1. It was a private vehicle. Risk of passenger is not covered under the policy. 4. The National Insurance Company, the 7 insurer of the Bus, took a stand that if, indeed, the driver of the Bus was under influence, in terms of its condition, the National Insurance Company is exonerated to meet the liabilities. 5. The learned Judge, while dealing with different claim petitions, was handicapped for evidence of any eye witness though there were injured, though Bus driver or the Jeep driver could be made available. These lacunae in adducing evidence cannot be and should not be shared by the Insurance Company as it was minimum expectation from the claimants to have established that there was rashness or negligence on the part of only the Driver of the Bus. On the other hand, I find, the pleadings indicate that the claimants contended, it was an accident by negligence of driver of both the vehicles. The learned Judge considered the FIR of Akramkhan at Exh. 40 and spot Panchnama at Exh.41 in F.A. No. 3543/2008. It was the same set of documents tendered in different group of matters. For the purposes of discussion, the FIR and Panchnama, as per Exh.40 and 41 shall be referred whereever it occurs. 6. The Counsel for the National Insurance Company elaborately dealt with the 8 judgment to castigate the findings reached by the learned Judge. Ultimately, the Counsel informed that the two major aspects need to be considered in the matter; one, there was a composite negligence, if the Court comes to a conclusion, indeed, there was negligence and, such composite negligence was to be shared by the Bus driver and the jeep driver. The second contention, was about the excessive quantum awarded in few of the cases. He was fair enough to accept that in First Appeal No. 3547/2008 (relating to death of Mangalabai) and in First Appeal No.3544/2008 (in relation to Rupkala, appellant is not challenging on quantum. 7. The Counsel informs, the learned Judge erred in reading the FIR, to reach the consequence of negligence. He has relied on the judgment in the matter of Narbada Devi Gupta v. Birendra Kumar Jaiswal and another ( (2003) 8 SUPREME COURT CASES 745). It was not a case under the Motor Vehcles Act. It was a case about interpretation of the document and admission thereof in the evidence. The Hon’ble Apex Court, observed about the proof of contents of the documents "as mere production and, getting them marked as Exhibit, by itself, is not sufficient". 9 There should not be any quarrel on this well settled legal position of law. The fact remains, in the matters covered within the spirit of Motor Vehicles Act and, particularly, seeking claim under Section 166 of the Motor Vehicles Act, they are to be tried in summary manner and strict proof of documents is not contemplated. One should not be oblivious that the claimants are always in lurch, they are unaware of the nature of the accident. In this group of cases, the claimants are obviously illiterate villagers; they cannot be expected to possess niceties, as are expected in the Evidence Act and, in general civil litigation, considering the beneficial intention of the legislation, their right to deal with the claims under Section 166 of the Motor Vehicles Act also cannot be foreclosed. 8. The Hon'ble Lordships in National Insurance Co. Ltd. V. Rattani & others (2009 AIR SCW 992), in paragraph no.7, have observed as under: “7. We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information had been made a part of the claim petition, there is no doubt 10 whatsoever that the Tribunal and consequently the appellate Courts would be entitled to look into the same.” There was no legal bar for the learned Judge to have looked into the FIR for matters under Section 166. 9. I quite see that the claimants could have examined the complainant Akramkhan/ Azamkhan to indicate that the recitals in the FIR flow in tune with what has actually happened. Though in the FIR there is reference of the Bus driver, to be under the influence, however, if the contents of the FIR are scanned, little minutely, it appears, the Bus started from its place of origin at 9.15 a.m., it reached at Badganj at 10.30 a.m.. At around 12.30 noon the driver collected Rs. 50/- from the Conductor, consumed liquor from nearby country liquor shop. If this is so, as rightly pointed out by the Counsel for the MPSRTC, a person, with his family sitting next to the driver of the Bus, is required to show utmost prudence while putting his life to stake and could never allow the driver to drive the vehicle. 10. In a group of claims, when at all places sympathy is showered on claimants, as 11 one of the group is from a single family. Nobody, either from the jeep or from the Bus, came forward to support that, indeed, the Bus driver was under influence. There is no medical evidence to prove, the Bus driver to be under the influence, though Mr.Patil, Counsel, for the jeep owner contended that there is a medical certificate to this effect. However, it is not in record. It is pertinent, the Bus driver was prosecuted for offence under Section 184 of M.V.Act for driving dangerously but Police did not register offence against him for infraction of Section 185 of M.V.Act which conceives driving the vehicle under influence. This indicates that the Police were conscious that the Driver was not under influence. In this scenario of the matter, mere banking upon the FIR to reach to the conclusion that it was all along the driver of the Bus who drove vehicle under influence in a shaky manner, by itself, was not a correct reasoning. 11. The learned Judge lost sight of the fact that, in the same FIR, there is reference that the jeep was laden with several persons and, it was coming from opposite direction. It is not indicated, either in the FIR or in the panchnama that the place of the incident is surrounded with curves or other side 12 vehicle is not visible. The impression that is generated is, the jeep driver could equally look, about offending vehicle coming in excessive speed or, in uncontrolled manner, and rational precautions should have been taken. Since the jeep itself was laden with several passengers, the driver of the jeep carried the risk and decided fate of the unfortunate passengers taking toll of their life. These aspects also need consideration while assessing the evidence and, particularly, the two documents which led to acceptance of the claim. 12. Mr.Patil, Counsel for the jeep owner, took recourse to the judgment in the matter of New India Assurance Co. Ltd. Vs. Bijalabai Maruti Dharange and others reported in 2007 (2) Mh.L.J. 268 and also to the judgment of the Hon'ble Apex Court in the matter of T.O.Anthony Vs. Karvarnan and others ( 2008 (3) SCC 748). In the matter of Brijalabai, this Court observed that breach of conditions of policy not proved by the insurer. Consequently, Insurer cannot escape its liability. This, Mr. Patil submitted, in the context of there being no evidence from the Oriental Insurance Company, the insurer of the jeep. 13 13. The contentions raised in the pleadings by the Oriental Insurance Co., as could be seen, were negatived by the learned Judge while answering the respective issues, about the jeep owner contravening the terms of the policy. Though, one could gather that the jeep was laden with unauthorized persons, beyond the permitted capacity, however, since it has not been conclusively established that it could be in breach of the terms of the insurance, the contention of Mr.Patil, about no such defense now available to the Oriental Insurance Company will have to be upheld. In the matter of T.O. Anthony, there was head on collision. The driver was working with Kerala State Road Transport Corporation. He dashed with a private Bus and, on assessment of the evidence, the extent of the liability was defined and fixed to be 50 per cent. 14. The Counsel for the M.P.S.R.T.C. has taken recourse to the judgment in the matter of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and others ( AIR 2006 SUPREME COURT 1255). Paragraph no. 12 thereof is as under: “12. Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding 14 of the MACT recorded under Issue No.2. It is the evidence of RajeshKumar Gupta-P.W.2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head- on collision. The MACT has not accepted the evidence of P.W. 2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P.W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head-on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate.” 15. In this scenario of the matter, in the light of the judgments of Bijalabai, T.O.Anthony and Bijoy Kumar Dugar, it is more than clear that prudent expected precaution from the driver of the jeep at the material time of the accident, in the afternoon, had 15 not been adhered by him. He did not bother for his life and life of the passengers in his jeep. Even if the Bus was coming from the opposite direction, in shaky manner, as indicated earlier, it was a straight road. The jeep driver should have exercised his prudence and should have taken due precaution to avoid head on collision. This is more so when he has already seen the offending Bus, coming from the opposite direction. 16. Taking recourse to the evidence in the form of FIR and the Panchnama, I hold that the accident is because of the negligence from the MPSRTC Driver and also of the jeep driver. This follows that the liability, as indicated hereinafter, will have to be shared by them in proportion of 50 per cent. 17. Now comes the contention of Mr.Bafna for the appellant Insurance Company about the claims to be disproportionate. So far as First Appeal No.3543/2008, 3550/2008 and 3546/2008 are concerned, deceased Akkabai, 6 years, Akash, was three years and Rahul, was of 5 years. The learned Judge fixed the liability to the tune of Rs.2,29,500/-, to be paid by the appellant insurance company and MPSRTC, as against the claim of Rs.1,00,000/-. The learned Judge has superficially treated the 16 notional income of these three deceased; six years, three years and, five years, to be annually Rs.15,000/- and straightway applied multiplier of 15. This exercise carried by the learned Judge is not in tune with the settled position of law and also is contrary to the facts on record. The learned Judge should have taken into consideration that there was no loss of dependency of the claimants as the minors expired at the teen age. Though one cannot be obliterating to the effect of the demise, as there is agony and a vacuum to the left over family members, however, at the same time, the surviving claimants' age needs consideration. Yogesh is 10 years old, his grand father Shriram is 60 years old. The award of compensation, by the learned Judge, apparently, is not in conformity with the law, as is indicated in the matter of Oriental Insurance Co. Ltd. Vs. Syed Ibrahim and others ( 2007 AIRSCW 6197) where the Hon'ble Lordships, in the case of death of a child of seven years old, for award of Rs.51,500/-, did not interfere to enhance it or to reduce it. In the case of death of Vilas, then aged 13 years, award of Rs.2,29,500/- is not in parlance with legal position. It is reduced and modified to Rs.1,00,000/- 17 18. In another matter, Kaushlya Devi Vs.Karan Arora and others ( AIR 2007 SC 1912) there was death of 14 years old boy in a motor accident. The award of Tribunal, granting compensation of Rs.1,00,000/- was held to be proper. In that case, the father was also dead and it was the mother who was survivor. In the group of three, deceased Akkabai and deceased Akash, they have no parents and it is only Yogesh and Shriram who are claimants. Consequently, the award of the learned Judge is modified from Rs.2,29,500/- to Rs. 1,00,000/- with the same interest. This includes the amount granted under No Fault Liability. 19. In First Appeal No.3545/2008 deceased Ajay was 19 years old. The claimants are 35 years and 40 years respectively. The learned Judge has applied multiplier of 16. I do not see any error in the learned Judge applying the multiplier as Ajay was unmarried. He was a prosperous boy for the family to achieve its goals and his untimely death has certainly put the family in lurch and mental distress. Consequently, no alteration in the award. 20. In First Appeal No.3548/2008 deceased Prakash was of 35 years, at the material time. Claimants are his son Yogesh, 18 father Shriram 60 years old. Considering the financial dependency, learned Judge has applied multiplier of 17. I do not see that it is indicative of non application of mind, hence no variation in the application of said multiplier, though I concur to the learned Counsel that Schedule II under Section 163-A is only a guide and not to be taken as a ready reckoner, at all the stages. 21. In First Appeal No.3547/2008 relating to death of Mangalabai, there is no change in the figure of award. 22. In First Appeal No.3549/2008, though the Counsel for the appellant has canvassed that the multiplier of 16 is erroneously applied, and it should have been 13. However, I do not agree to the same, the award is not altered. 23. In F.A. No.3544/2008 in the matter of death of Rupkala, there is no challenge from the appellant Insurance Company. Hence order: A) It is held that in each of the claim, subject of the group of the appeals, the liability to answer the award is joint and several of M.P.S.R.T.C. and the appellant 19 National Insurance Company, at one hand to the extent of 50 per cent. B) The liability of Jeep owner and the Oriental Insurance Company is held to be composite to the extent of 50 per cent jointly and severally. C) First Appeal Nos.3543/2008, 3550/2008, 3546/2008 and 3551/2008 are allowed. The respective awards are modified from Rs. 2,29,500/- to Rs.1,00,000/- to be paid in the manner indicated above. D) The award in respect of First Appeal Nos.3548/2008, 3447/2008, - 3549/2008, 3544/2008, 3545/2008, to the - extent of the compensation remains - unaltered. E) The interest, as saddled by the learned Judge to remain the same. No - costs. F) The respective Civil Applications for staying the proceedings being infructuous are dismissed. The petitions moved by the claimants for withdrawal of the amount, are disposed of as the claimants will have to make necessary 20 changes in the applications in the light of observations made today. G) Liberty to the claimants to move the learned Member, Motor Accident Claims Tribunal, for withdrawl of the deposited amount. (K.U. CHANDIWAL) JUDGE agp/fa3543-08