2024:BHC-AS:14762 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 302 OF 2014 with CROSS OBJECTION STAMP NO.35190 OF 2023

	Royal Sundaram Alliance General Insurance Co. Ltd., Sundaram Towers, 46, Whites Road, Royapettah, Chennai.	…	Appellant
	versus
1	Jagdish Shankar Joshi, Age : 62 years, Occ. Nil.
2	Meghana Jagdish Joshi, Age 50 years, Occ.Household.
3	Shweta Dhaval Joshi (@ Shweta Vinay Bhide) Age : 27 years, Occ. Household, Nos.1 to 3 R/o: C-15, Nirmiti Heights, Shiv Tirth Nagar, Paud Road, Pune.		(Org. Claimants)
4	Pavan Dhanraj Karde, Occ. Owner and Driver of insured car, R/o : A-5/608, Atul Nagar, Opp. Cipla- Foundation, Warje, Pune – 52.	…..	(Owner/ Driver) Respondents

Mr. Rahul Mehta i/b. KMC Legal Venture, Advocate for the Appellant.

Digitally signed by Mr. Yogesh Pande, Advocate for Respondent Nos.1 to 3.

SHUBHADA SHUBHADA SHANKAR SHANKAR KADAM KADAM Date:

2024.03.27 1/6 +0530 CORAM : SHIVKUMAR DIGE, J.

DATE : 13^th MARCH, 2024.

Oral Judgment :

1. The appellant-Insurance Company has preferred this appeal against the judgment and order passed by Motor Accident Claims Tribunal, Pune (for short “the Tribunal”). The claimants have filed cross objection for enhancement of compensation. As the appeal and cross- objection are against the same judgment and order, I am deciding it, by this common judgment.

2. It is contention of learned counsel for the appellant – Insurance Company that, at the time of the accident, the driver of the offending vehicle was not holding valid and effective driving license. Learned counsel further submitted that, at the time of the accident, deceased was under probation but the Tribunal has considered his whole salary as income, which is erroneous. Learned counsel further submitted that during the pendency of the claim petition, the widow of the deceased remarried, so the Tribunal should not have considered her as dependent of the deceased. Learned counsel submitted that the Tribunal has awarded consortium amount on higher side. He submitted that the while awarding compensation, the Tribunal should have considered the multiplier of the parents of the deceased instead of deceased.

Hence,requested to allow the appeal.

3. It is contention of learned counsel for respondent Nos.1 to 3/claimants that while considering income of the deceased, bonus and leave encashment have not been considered, it be considered.

4. I have heard both learned counsel, perused the judgment and order passed by the Tribunal.

5. To prove their defense that, at the time of the accident, the driver of the offending bus was not holding effective and valid driving license, the appellant – Insurance Company has not examined any witness, hence, I do not see merit in it. It is settled principle of law that if any defense is taken by the Insurance Company, it must be proved by producing evidence on record.

5.1. It is contention of learned counsel for appellant that during the pendency of the claim petition, the widow of deceased has remarried. In my view, though the widow has remarried, deceased was her husband and, at the time of filing claim petition, she was widow of deceased. Hence, her remarriage cannot be a ground to deprive her from getting compensation.

5.2. It is contention of learned counsel for the appellant that, at the time of the accident, deceased was under probation period and he was not permanent employee, hence, his monthly income should not have been considered. In my view, though the deceased was under probation, he was an employee and he was getting salary as he would have got as a permanent employee. The probation period is the initial period of service, so it cannot be said that deceased was working on temporary basis.

Hence, the monthly income considered by the Tribunal is proper.

5.3. The Tribunal has awarded consortium amount of Rs.2,25,000/-, in my view, it is on higher side. As per the view of Hon’ble Apex Court in Magma General Insurance Co. Ltd. vs. Nanu R

Click Here to Read the rest of this document