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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & REVATI MOHITE DERE, JJ.
The Oriental Insurance Co. Ltd.
Vs.
Meena Tukaram Jadhav & Ors.
First Appeal No. 573 of 2013 along with First Appeal No. 700 of 2013 along with First Appeal Nos. 1369, 1630 of 2012 along with Cross Objection St.no. 29695 of 2013
Decided On: 19th December, 2013
From deposition it is clear that the auto rickshaw was being driven on its correct side at the time of impact. On the other hand, no attempt has been made by the appellant insurer to examine the driver or cleaner of the offending truck insured with it. In fact, an adverse inference ought to have been drawn against the appellant for not examining the driver of the truck. There is a passing observation made by the Member that as the truck is a larger and heavier vehicle than the auto rickshaw, the driver of the truck owes more duty and responsibility to take proper care and caution. Even if ignored this observation, for the reasons which Court has set out, no-fault can be found with the apportionment of liability between the two insurance companies made by the Tribunal.
Motor Vehicles Act, 1988 - Section 168 - Just compensation. - If employee is insured by his employer against injury or death arising out of an accident, any amount received under policy on accidental death liable for deduction from award of compensation under Act. - In the case of an ordinary life insurance, if on account of death of person in a motor accident, the legal representatives receive the amount under the policy, the same cannot be excluded as such benefit has no correlation to the accidental death. The said amount would have come to the legal representatives even in the case of natural death. But if the employee is insured by his employer against injury or death arising out of an accident, any amount received under such policy on accidental death would be liable for deduction from compensation. In the instant case, there is a group insurance scheme for the employees of the SCI in which deceased worked.
The entire premium is paid by SCI which as not recovered from its employees. Legal representatives of the deceased received the insurance amount "Purely on account of his death in accident under the Group Insurance Scheme". In view of the same, the burden was on the claimants to prove the contents of the policy. However, the claimants did not produce the policy. Hence, the contention of the appellant that the sum of Rs. 14,00,000/- was the pecuniary advantage received by the legal. representatives of the deceased on account of accident will have to be accepted. In the circumstances, a sum of Rs. 14,00,000/- will have to be deducted from the compensation payable to the claimants. 1999 (1) All MR 670 (SC) - Rel. on.
A.S. OKA, J.
These appeals arising out of Judgments and Awards made by learned Member of the Motor Accident Claims Tribunal, Mumbai can be disposed of by a common Judgment and Order as claims arising out of the same accident have been decided by the Tribunal by the impugned Judgments and Awards.
2. The accident occurred on 28th August 1998. The members of Borkar Family had hired a auto rickshaw at the place known as Kodibaug, near Karwar in the State of Karnataka and they were proceeding towards Karwar Beach by the auto rickshaw on High way No. 17. When the auto rickshaw reached in front of the RTO Office at Karwar, a truck came from the opposite direction and collided with the auto rickshaw. The allegation in the claim petitions is that the truck was being driven in a rash and negligent manner. As a result of the dash given by the truck, the occupants of the auto rickshaw sustained injuries. The truck was owned by one Prabhakar Naik which was insured on the date of accident with the Oriental Insurance Company Limited (the appellant). The auto rickshaw was insured at the relevant time with the National Insurance Company Limited which is one of the respondents in Appeals.
3. The claim application No. 758 of 1999 was filed by one Meena T. Jadhav. The said Meena was travelling in the auto-rickshaw along with the members of Borkar Family. Her age at the time of accident was 14 years and she was working as a maid servant with the Borkar Family. On account of injuries sustained by her, she claimed compensation of Rs. 2,50,000/-.
4. The appellant-the Oriental Insurance Company Ltd the insurer of the truck filed a written statement contending that the accident occurred due to rash and negligent driving on the part of the driver of the auto rickshaw. The National Insurance Company Limited, the insurer of the auto rickshaw, filed a written statement contending that the accident took place on account of rash and negligent driving of the driver of the truck. By the impugned Award dated 5th August 2011, the learned Member of the Tribunal held that there was negligence on the part of the drivers of both the vehicles. The learned Member directed that the apportionment of the liability between the appellant-the Oriental Insurance Company Limited and the National Insurance Company Limited shall be made in the proportion of 80:20. In the said claim, the compensation of Rs. 1,36,150/- was granted to the claimant with interest thereon at the rate of 7.5% per annum from the date of filing of the claim petition till realization. First Appeal No. 573 of 2013 filed by the appellant-the Oriental Insurance Company Limited takes an exception to the said Judgment and Award.
5. First Appeal no. 700 of 2013 is filed by the Oriental Insurance Company Limited for challenging the Judgment and Award dated 6th August 2011 in Claim Application No. 756 of 1999 which was filed by one Mrs. Subha Rajan Desai (formerly known as Priya Pramod Borkar) who was the occupant of the auto rickshaw. She is the widow of Pramod Borkar who died in the same accident. She claimed compensation of Rs. 3,00,000/- on account of injuries sustained by her. Similar contentions were raised by the insurers of the vehicles which were raised in the claim petition filed by Meena Jadhav. The Tribunal granted compensation of Rs. 1,85,680/- together with interest thereon at the rate of 7.5% from the date of filing of the claim petition till the payment of compensation amount.
6. First Appeal No. 1369 of 2012 filed by the Oriental Insurance Company Limited takes an exception to the Award dated 4th August 2011 in claim petition no. 757 of 1999 filed on behalf of minor Prachi through her mother and natural guardian Mrs. Subha Rajan Desai. Injured Prachi is the minor daughter of deceased Pramod. Identical defences were raised by both the insurance companies to the claim petition. Total compensation of Rs. 65,000/- has been granted by the Tribunal with interest thereon at the rate of 7.5% pa.
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