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2014 Supreme(Bom) 1390
IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
T.V. NALAWADE, J.
Bhalchandra s/o. Laxman Gangadhare - Appellant.
Versus
Shardabai w/o. Manohar Ugale - Respondents.
FIRST APPEAL NO. 439 OF 2007 WITH CIVIL APPLICATION NO. 4059 OF 2014, FIRST APPEAL NO. 927 OF 2007 WITH CIVIL APPLICATION NO. 352 OF 2014
Decided on : 15/07/2014
Mr. R.R. Mantri, Advocate for appellant.
Mr. P.P. Bafna, Advocate or respondent No. 5.
Mr. V.P. Golewar, Advocate for respondent Nos. 1 to 3.
Headnote:Motor Vehicles Act, 1988 - Section 166 Claim of compensation. - Where deceased aged about 49 years, a Govt. servant was earning Rs. 8870/- p.m. and his service around 9 years was left therefore 30% increase in income to be added for calculating loss of dependency. On the point of quantum of compensation, there is evidence of widow of deceased and one employee of the office of the deceased. The salary certificate is duly proved and it shows that he gross monthly salary of the deceased for the month of May 2003 was Rs. 9045/-. Professional tax of Rs. 175/- was deducted and that was the only standard deduction. Thus, the net income of the deceased was Rs. 8,870/-. With Civil Application No. 4059/2014 filed in the Court, the owner has filed the first page of service book of the deceased showing the date of birth of deceased as 20.1.1955. The Tribunal accepted the evidence that the age of the deceased was 45 years at the relevant time and the Tribunal adopted 13 as a multiplier for calculation of loss of dependency. The counsel for the claimants was asked to explain the things like the circumstance of age in view of the date of birth mentioned in the service book. As there is no other record, the Court holds that the service book record needs to be considered for ascertaining the multiplier. As per this record, the age of the deceased was 48 years 5 months at the relevant time.
The deceased was in Government Service and the age of retirement for his post was 58 years. Thus, the service of around 9 years and six months was left. In view of the ratio laid down in the case of Sarla Verma v. DTC, (2009) 6 SCC 121 : 2009 (4) All MR 429 (SC), the Court holds that the increase of 30% in the income needs to be given for calculation of loss of dependency. Thus, the monthly income of deceased was around Rs. 11,800/-. In view of the size of the family of the deceased, the deceased would have spent 1/3 amount for himself and so, monthly loss of dependency was Rs. 7,847/-. In view of the service left of the deceased, the Court holds that at the most multiplier of 9.5 can be used for calculation of total loss of dependency, in respect of remaining service period. This amount comes to around Rs. 8,94,000/-.
It can be presumed that after the retirement, the deceased would have done some work and he could have earned atleast Rs. 3,000/- per month after retirement. The multiplier of 3 can be used for the remaining period of life. Out of the amount of Rs. 3,000/-, one-third amount can be deducted for personal expenses of the deceased and thus, the loss of dependency in respect of remaining period comes to around Rs. 72,000/-. In view of the ratio laid down in the case of (2013) 9 SCC 54 : 2014 All SCR 2434, Rajesh v. Ranbir, an amount of Rs. 25,000/- could have been given under the head of funeral expenses. Some amount could have been given under the head of loss of consortium and loss of estate.
Motor Vehicles Act, 1988 - Section 147 Liability of insurer. - Where accident occurred owing to rash and negligent riding of scooter and deceased pillion rider cannot be treated as third party therefore insurer not liable to pay compensation. The Tribunal has referred the case of New India Assurance Co. v. V. Dharam Sing Bhai, 2003 (2) TAC 319 (Raj) and the Tribunal has held that the pillion rider needs to be treated as third party. In this proceedings, the counsel for owner produced a copy of direction given by Insurance Registration and Development Authority dated 16.11.2009. In this direction given by the authority, it is made clear that if Standard Motor Packages Policy (also called as Comprehensive Policy) is purchased, the risk to pillion rider of two-wheeler and risk to occupant of private car needs to be covered. This direction is of no use in the present case as Comprehensive Policy was not purchased and it is only Act policy. The counsel for owner placed reliance on one case reported as 2011 ACJ 1415 (Delhi High Court) Yashpal Luthra v. United India Insurance Co. Ltd. In this reported case, the policy purchased was Package/Comprehensive Policy and Insurance Company had admitted that the risk of pillion rider was covered under this policy. Thus, the facts were totally different. So, this case is of no use to the owner. On the aforesaid point, the counsel for Insurance Company placed reliance on the case as (2008) 7 SCC 428 : 2008 All SCR 1376, Oriental Insurance Company Limited v. Sudhakaran K.V.. The Apex Court has discussed the relevant provision, Section 147 of the Act.
The position of law is settled on the point involved in the present matter. When the Tribunal decided the matter, this position was already settled in the case of New India Assurance Co. Ltd. v. Asha Rani, AIR 2003 SC 607 : 2013 All SCR (OCC) 114. In view of the interpretation of the relevant provisions done by the Apex Court, the Court holds that the observations made in Dharam Sing’s case referred above is of no help to the owner as it is on totally different point. The Court holds that interference is warranted in the judgment and award delivered by the Tribunal. Insurance Company cannot be made liable to pay the compensation and indemnify the owner.
1. Both the appeals are filed against judgment and award of Claim Petition No. 96/2003 which was pending before the Claims Tribunal, Jalgaon. Respondent Nos. 1 to 3 from the two appeals were claimants and the claim was filed under section 166 of Motor Vehicle Act, 1988 (in short 'the Act'). The Tribunal has granted compensation of Rs. 9,50,180/- with interest at the rate of 7% p.a. from the date of petition. The owner of the offending vehicle has filed First Appeal No. 439/2007 and the Insurance Company has filed First Appeal No. 927/2007. All the sides are heard.
2. According to the claimants, the accident took place on 11.6.2003 on Ambad Charphula - Mantha Road at about 9.30 p.m. and the spot is situated near Revgaon, in Jalna city.
3. It is the case of claimants that the deceased Manohar Ugale was present as pillion rider on motorcycle and the motor cycle was being driven by one Laxman Gangadhare. It is their case that Laxman drove the motorcycle bearing No. MH-21/B-4005 rashly and negligently and the motorcycle gave dash to the railing of fly over and the accident took place. It is contended that Manohar was seriously injured in the accident and he succumbed to the injuries on 26.6.2003.
4. The original claimant No. 1 is the widow of deceased. Claimant Nos. 2 and 3 are minor son and daughter of deceased. The age of the issues was 16 years and 10 years at the relevant time. It is their case that the deceased was working in Tahsil Agricultural Office of State Government and his gross salary per month was Rs. 9,045/-. All the aforesaid claimants were depending on the deceased for their livelihood.
5. Respondent No. 1 from the claim petition was registered owner of motorcycle as per the information supplied to police but he had transferred the vehicle prior to the date of accident to respondent No. 3. Respondent No. 2 is the Insurance Company of the vehicle involved in the accident. The compensation of Rs. 11 lakh was claimed.
6. Respondent Nos. 1 and 3 filed separate written statements, but they took similar defence. The fact that the motorcycle was transferred by respondent No. 1 to respondent No. 3 is not disputed. It is there alternative defence that if owner of the vehicle is held responsible to pay the compensation, the Insurance Company needs to indemnify the owner.
7. One contention which was probably made due to oversight in claim petition that the deceased Manohar was riding the motorcycle at the relevant time is admitted by respondent Nos. 1 and 3 in their written statement. Here only it needs to be observed that in the particulars which are required to be given as per the form prepared under Maharashtra Motor Vehicle Rules, under the Act, the particulars were correctly supplied and it was contended in the clause Nos. 6 and 7 of the particulars that Laxman was riding the motorcycle and he caused the accident. In the story, in more particulars, it was contended in the petition that Manohar was riding the motorcycle. It was sheer mistake.
8. Respondent Nos.1 and 3 denied the involvement of the aforesaid motorcycle in the accident. They contended that the crime was registered after 38 days of the alleged incident and this circumstance is sufficient to infer that their motorcycle was not involved in the accident. They have contended that false record was created after the death of deceased by taking the help of police. Alternatively, they have contended that deceased himself was riding the motorcycle and he caused the accident. The Tribunal has held that respondent No. 3 was the owner of the vehicle at the relevant time.
9. In the written statement, Insurance Company has contended that it needs to verify the policy as only copy of Insurance Certificate was produced by the claimants. The Insurance Company denied the claim for want of particulars of Insurance. The Insurance Company also denied that Laxman caused the accident. The contentions regarding loss of dependency were also denied by the Insurance Company
