Case: The New India Assurance Company Limited &amp; Another Vs. Ashish Ravindra Kulkarni &amp; Others

1. The learned counsel appearing for the Respondents Shri Vishwanath Talkute in the above First Appeal would submit that the instant First Appeal is a case wherein the son of the Respondent Nos.2 and 3 who was the only earning member died. The Respondent Nos.2 and 3 in the above First Appeal are today over 70 years of age and therefore the above First Appeal may be taken up for hearing at the stage of admission.2. Having regard to the said fact, we deemed it appropriate to hear the above First Appeal itself for final hearing rather than considering the above Civil Application No.3126 of 2018 for withdrawal of the amount and the above Civil Application No.2598 of 2016 for stay.3. The learned counsel for the RespondentsClaimants Shri Vishwanath Talkute tenders a private paper book containing the Claim Petition No.129 of 2009, the Written Statement, depositions of PW1 and PW2, and the documents which have been exhibited in the Motor Accident Claims Tribunal, Pune.4. The above First Appeal is directed against the judgment and award dated 28/07/2015 passed by the Motor Accident Claim Tribunal, Pune. By the said judgment and award the Claim Petition, being MACP No.129 of 2009 came to be allowed and the amounts mentioned in the operative part of the said order under different heads came to be granted. The total compensation awarded to the Respondents-Claimants is Rs.2,50,60,000/-. The MACT Pune has in the operative part also directed as to how the amount is to be disbursed and kept in Fixed Deposits in favour of the respective Respondents-Claimants. The parties would be referred to as per their status in the above First Appeal, i.e. the Insurance Company as the Appellant and the original Claimants as the Respondents.5. The incident in question is dated 17/06/2008. On the said day, one of the RespondentsClaimants herein i.e. Ashish Ravindra Kulkarni who is the son of the deceased was travelling with his father Ravindra, his mother and his brother Aniket in Indica Car bearing registration No.TN/10/T/6077. The family was travelling to Pondicherry from Chennai. At about 15.30 hours when the car reached on East Coast Road, Salavankuppan, opposite Tiger Caves, Tamilnadu, one Innova Car bearing registration No.PY/01/AC/4466 came from opposite direction in a very high and excessive speed. In view of the speed with which the Innova car was being driven, the driver lost the control and went to the wrong side of the road and gave a violent dash to Indica Car wherein the family of Respondent-Claimant Ashish Ravindra Kulkarni was travelling. Due to the said accident, all the family members sustained injuries on account of which Ravindra, Aniket and driver Selven died on the spot whereas Ravindras wife Shailaja died in the hospital after about 18 hours of the said accident. A C.R. was registered against the driver of the Innova car for the offences punishable under Sections 279, 337, 338, 304A of the Indian Penal Code. The said Innova car bearing No.PY/01/AC/4466 was insured with the Appellant herein i.e. the New India Assurance Co. Ltd. who was the Opponent No.3 in the said MACP No.129 of 2009. The Claim Petition being MACP No.129 of 2009 came to be filed in the MACT, Pune claiming compensation to the tune of Rs.2,10,00,000/- under different heads with 18% interest.6. It was the case of the RespondentsClaimants in the said Claim Petition that the deceased Ravindra was working as a Chief Executive Officer in TATA Precision Industries, Singapore and was earning $ 11,153 Singapore dollars per month. It was their case that the entire family was dependent on the income of the deceased Ravindra and due to the death of Ravindra, his son Ashish Ravindra Kulkarni has been suffering mentally and physically and his future prospects were bleak. It was their case that the RespondentsClaimant Nos.2 and 3 are the parents of the said Ravindra. They lost their only son in the said accident who was the sole earning member on account of which there was a great financial loss to them.7. It seems that before the Tribunal the driver of the Innova car was deleted and the owner who was the Opponent No.2 in the said MACP No.129 of 2009 in spite of the service did not appear.8. The Appellant herein i.e. the New India Assurance Company Ltd. who was the Opponent No.3 filed its written statement which was numbered as Exhibit 20. In the said written statement it was admitted by the AppellantInsurance Company that the Innova car was registered with it at the relevant time. The Appellant herein took a plea that the Petition filed in the MACT, Pune was not maintainable as the accident had taken place in Tamil Nadu. The Appellant herein therefore took a plea that the MACT, Pune did not have the jurisdiction and therefore the Claim Petition be dismissed for want of territorial jurisdiction. It was denied in the written statement that the accident had occurred on account of the rash and negligent driving of the Innova car. It was also denied that the Innova car came in a high and excessive speed and the driver lost the control. It was sought to be contended that the driver of the Innova car blew horn when he saw the Indica car coming from the opposite direction in a rash and negligent manner and therefore it was the case of the Appellant herein that the accident had occurred due to the contributory negligence of the driver of the Indica car. The Appellant herein in the said written statement denied that the deceased Ravindra was working as a Chief Executive Officer in TATA Precision Industries, Singapore and was earning $ 11,153 Singapore dollar per month. There was also a denial in respect of the family being dependent on him, and that the future prospects of the surviving son Ashish were bleak.9. It is on the basis of the pleadings of the parties that the MACT, Pune framed the following issues and answered the same as follows :Sr. No.IssuesFindings1Whether the applicants prove that on 17/06/2008 at about 03/30 p.m. on East Coast road, Salavankuppam, opposite Tiger Caves, Tamilnadu, impugned accident occurred due to rash and negligent driving of Innova Car bearing registration No.PY/01/AC/4466 by its driverYes2Whether the applicants prove that in the impugned accident, Ravindra Prabhakar Kulkarni diedYes3Does opponent No.3 prove that the tribunal has no jurisdiction to try and entertain the present claim petitionNo4Whether claim is bad for non-joinder of necessary partyNo5Whether the applicants are entitled for compensation If yes, what amount and from whomAs per final order6What orderAs per final order.On behalf of the RespondentsClaimants the evidence of Ashish Ravindra Kulkarni (PW1) and the representative of the TATA Precision Industries, SingaporeKirti Keshav Naik (PW2) was led. In so far as the AppellantInsurance Company is concerned, it did not step into the witness box. It is through the evidence of the said Kirti Naik (PW2) that the appointment letter of deceased Ravindra issued by the TATA Precision Industries, Singapore as also his salary slip were produced and therefore the said factum was got proved through the evidence of the said Kirti Naik.11. The MACT, Pune on the basis of the material which had come on record held that the income i.e. the basic salary of the said Ravindra would have to be calculated at $ 8000 Singapore dollars by excluding House Rent Allowance as also CPF i.e. festival allowance at $ 653 Singapore dollars. The MACT, Pune also deducted the amount of Rs.3,00,000/which was paid by the TATA Precision Industries, Singapore by way of compensation to the RespondentsClaimants. The MACT also held that since the deceased Ravindra was working on temporary basis, no amount could be granted to the RespondentsClaimants on account of loss of future prospects. The MACT also deemed it appropriate to grant interest at 6% p.a.. As indicated above, the amounts granted by the MACT are mentioned in the operative part of the impugned order and the total compensation granted is in the sum of Rs.2,50,60,000/. It is the said judgment and award of the MACT, Pune which is taken exception to by way of the above First Appeal.

Reasoning: In so far as Grounds C, E and F are concerned, it is pertinent to note that the AppellantInsurance Company has not pleaded the case sought to be urged by the said grounds in the written statement. As indicated above, the AppellantInsurance Company has not led any evidence in rebuttal. Hence in the absence of any pleadings to that effect in the written statement, the AppellantInsurance Company would not be entitled to raise the said grounds. In any event the said grounds do not fall within the statutory defences which are available to an insurer under Section 149 of the Motor Vehicles Act to the Insurer.In so far as Grounds J, L and T, which we have reproduced herein above, are concerned, it is pertinent to note that before the MACT, Pune the appointment letter as well as the salary slip of the deceased Ravindra were produced through the representative of the TATA Precision Industries, SingaporeKirti Naik (PW 2). In the absence of any contra material, the MACT was right in relying upon the said material to come to the conclusion as regards the income of the deceased Ravindra.We therefore do not find any merit in the challenge raised to the Award passed by the MACT, Pune on behalf of the Appellant5. In so far as future prospects are concerned, the same has been denied to the RespondentsClaimants on the ground that the deceased Ravindra was not a permanent employee. It is required to be noted that the deceased Ravindra was engaged as a Chief Executive Officer with TATA Precision Industries, Singapore, and it is the case of the RespondentsClaimants that the monthly salary of the deceased Ravindra was $ 11,153 Singapore dollars. The concept of temporary/permanent, in our view, cannot be made applicable to the Chief Executive Officer in a Company which is based abroad. In fact the concept may be alien to such company. It would therefore have to be held that the deceased Ravindra was a permanent employee of the said TATA Precision Industries, Singapore. In so far as the said aspect is concerned, a useful reference could be made to the judgment of the Apex Court in Pranay Sethis case (supra).In our view, the RespondentsClaimants would be entitled to future prospects in terms of clause (iii) of the said conclusions as the deceased Ravindra had a permanent job. Hence an amount of 30% of the amount calculated as the total income of the deceased by applying concerned multiplier would have to be added to the compensation. The said 30% amount towards loss of future prospects would come to Rs.12,04,524/-.In so far as the deductions of the amounts of House Rent Allowance and Festival Allowance are concerned, in our view, the said deductions are also not permissible. A useful reference could be made to the judgment of the Apex Court in Indira Srivastava and otherss case (supra) wherein the Apex Court has held that the benefits meant for family, as distinguished from personal benefits like conveyance allowance, etc. also form part of income. Hence the amounts paid by way of House Rent Allowance and Festival Allowance would have to be taken into consideration whilst calculating the total income of the deceasedview of the fact that the judgment in Magma General Insurance Co. Ltds case (supra) has considered the judgment in Pranay Sethis case (supra), we propose to follow the said judgment in the matter of awarding the sums on account of conventional heads. In view thereof the amount of Rs.3,00,000/- granted as compensation for loss of love and affection to the RespondentsClaimants would have to be brought down to Rs.1,50,000/- i.e. Rs.50,000/- to each of the RespondentsClaimants. In view of the special facts and circumstances of the case where the body of the deceased was brought by Air to Pune, we deem it appropriate to maintain the amount of Rs.1,00,000/- granted for funeral expenses. We also deem it appropriate to award Rs.15,000/- towards loss of estate, and Rs.1,20,000/- i.e. Rs.40,000/- to Ashish i.e. the Respondent No.1 towards Parental Consortium and Rs.80,000/- to the parents i.e. the Respondent Nos.2 and 3 towards Filial Consortium.20. Lastly coming to the rate at which the interest has been granted by the MACT, Pune, as indicated herein above, the interest to the RespondentsClaimants had been granted at the rate of 6% p.a. We deem it appropriate to enhance it to 7.5% p.a.21. In that view of the matter, the above First Appeal filed by the AppellantInsurance Company is accordingly dismissed save and except to the extent of modification in respect of the amount towards loss of love and affection.