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Madhya Pradesh High Court · body

2011 DIGILAW 825 (MP)

K. P. Nayer v. Patamberdas Dawani

2011-07-27

N.K.MODY

body2011
ORDER : This appeal shall also govern disposal of MA No.3032/2008 and also MA No.1943/2008 as all the appeals are arising out of one accident. In the present appeal deceased is Pradeep Nair. In MA No.3032/2008 deceased is K. Sudhakaran. In both the appeals, claim petitions have been allowed in part and the compensation has been awarded. However, respondent No.5/Insurance Company has been exonerated. In MA No.1943/2008 deceased is Tommy. Claim petition filed by legal representatives of deceased has been allowed holding the Insurance Company liable for payment of compensation, therefore, Insurance Company has filed this appeal. 2. Short facts of the case are that deceased persons were travelling in a Tata Sumo bearing registration No. MP/04T/ 6044. Tata Sumo was being driven by respondent No.5 Shavab Khan who has been impleaded as respondent in MA No.3032/2008 and also in MA No.1943/2008. The offending vehicle was owned by respondent No.4 and insured with respondent No.5. In the claim petition it was alleged that said Tata Sumo met with an accident with a bus bearing registration No. MP/04-F-0032 driven by Vishnudas respondent No.2 rashly and negligently, owned by respondent No.1 and insured with respondent No.3. It was alleged Tata Sumo was carrying 9 passengers, out of which five persons had expired. It was alleged that since the accident occurred because of rash and negligent driving of the driver of the bus. Therefore, it was prayed that claim petition be allowed and appropriate compensation be awarded on account of death. Claim petition was contested by respondent No.5/Insurance Company on various grounds. After framing of issues and recording of evidence, learned tribunal allowed all the three claim petitions but exonerated respondent No.5 in MA No.3858/2008 and MA No.3032/2008. However, in MA No.1943/2008 it was held that Insurance Company is liable for the payment of compensation along with others. 3. In MA No.3858/2008 an award is dated 13.09.2006 passed in Claim Petition No.63/2006 by 21st MACT Indore, whereby the compensation has been awarded as Rs.3,50,000/- to the appellants on account of death of Pradeep Nair. 4. In MA No.3032/2008 award is dated 13.03.2008 passed by 12th MACT Indore in Claim Case No 38/2004, whereby claim petition was allowed and a compensation of Rs.6,48,500/-was awarded to the appellants on account of death of Sudhakaran. 5. 4. In MA No.3032/2008 award is dated 13.03.2008 passed by 12th MACT Indore in Claim Case No 38/2004, whereby claim petition was allowed and a compensation of Rs.6,48,500/-was awarded to the appellants on account of death of Sudhakaran. 5. In MA No.1943/2008 award is dated 13.5.2008 passed by 16th MACT Indore in claim petition No.36/2007 wherein claim petition filed by respondent Nos. 1 to 3 was allowed and a compensation of Rs.8,25,500/- was awarded on account of death of Tommy. 6. Mr. Sameer Verma, learned counsel for the appellant in MA No.3858/2008 argued at length and submits that the impugned award passed by the learned tribunal is incorrect, illegal and deserves to be set aside. Learned counsel submits that the accident occurred because of rash and negligent driving. It was head on collision, therefore, it was to be presumed that drivers of both the vehicles were at fault. It is submitted that there is no evidence to prove that the accident occurred because of rash and negligent driving of the vehicle in which the deceased was travelling. Learned counsel further submits that in the written statement filed by the respondent No.5 it is specifically stated that it was the case of composite negligence, therefore, there was no justification on the part of the learned tribunal in exonerating respondent No.5. It is submitted that on account of funeral expenses and loss of love and affection the impugned award is grossly inadequate. It is submitted that while awarding compensation future aspects has not taken into consideration by the learned tribunal. 7. Mr. Vishal Verma, advocate appearing in MA No.3032/2008 submits that in the written statement filed by respondent No.5 in claim petition filed by the appellant it was alleged that the accident occurred is the result of composite negligence. Learned counsel further submits that if the accident occurred because of composite negligence, it is for the appellant to recover the amount from any of the tort feasors. For this contention reliance is placed on a decision in the matter of Sushila Bhadoriya v. M.P.S.R.T.C. [ 2008 JLJ 15 ] wherein Full Bench of this Court has held that both the joint tort feasors are not necessary parties. It is not possible to apportion ratio of negligence of each tort feasors where award can be against both or any one of them. It is not possible to apportion ratio of negligence of each tort feasors where award can be against both or any one of them. Learned counsel submits that in the facts and circumstances of the case, findings whereby respondent No. 5 has been exonerated is incorrect, illegal and deserves to be set aside. Learned counsel further submits that the impugned award is on lower side as the income of the deceased is assessed @ Rs. 6000/- per month. It is submitted learned tribunal awarded Rs.6,48,500/- break up of which is as under : Rs.6,24,000/-towards loss of dependency. Rs 2,000/-towards funeral expenses. Rs. 5,000/-towards consortium. Rs. 15,000/-towards love and affection. Rs. 2,500/-towards loss of estate. 8. Learned counsel for the appellants submit that Ex.P/13 is the last return submitted by the deceased wherein income of the deceased was shown as Rs.1,1000/-. It is submitted that this return was for the year 2001-02 submitted on 31st July,2002. It is submitted that deceased Tommy in whose case Insurance Company has been held liable for the payment of compensation and the appeal has been filed as MA No.1943/2008, the income of the deceased has been assessed as Rs.6000/- per month who was the employee of the deceased K.Sudhakaran, whose legal representatives are appellant herein. It is submitted that deceased Tommy was working as site Supervisor. It is submitted appeal be allowed and the amount be enhanced and the finding whereby respondent No.5 has been exonerated be set aside. 9. Mr. Pradeep Gupta with Mr. Bhaskar Agrawal, advocates appearing for respondent No.1 in MA No.1943/2008, submits that in MA No.3858/2008 and 3032/2008,the amount of compensation awarded by the learned tribunal appears to be just and proper. So far as respondent No.5 is concerned, learned counsel submits that respondent No.5/Insurance Company has rightly been exonerated. So far as MA No.1943/2008 is concerned, learned counsel submits that not only the amount awarded by the learned tribunal is on higher side but respondent No.5 has wrongly been held liable for payment of compensation as in all the claim petitions it was the case of the claimants that the deceased were travelling in Tata Sumo and the driver of the offending bus was driving the bus rashly and negligently. It is submitted that it is settled law that claimants have to prove the case. It is submitted that it is settled law that claimants have to prove the case. It is submitted that since the claimants have alleged that the accident occurred because of rash and negligent driving of the offending bus, therefore, there was no justification on the part of the learned tribunal in holding the Insurance Company liable for payment of compensation. It is submitted that appeals MA Nos. 3858/2008 and 3032/2008 filed by the appellants and MA No.1943/2008 filed by the Insurance Company be allowed and the amount of compensation be reduced and also the finding whereby appellant/Insurance Company held liable to be set aside. 10. For this contention learned counsel placed reliance on a decision of this Court in the matter of Minu B. Mehta and another v. Balkrishna Ramchandra Nayan and another [ AIR 1977 SC 1248 ] wherein Honble Apex Court has observed that for holding the Insurance Company liable, proof of negligence is necessary. It was held that before a person can be made liable to pay compensation for any injuries and damage which have been caused by his action it is necessary that the person damaged or injured should be able to establish the party responsible. Further reliance is placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Meena Variyal and others [ 2007 ACJ 1284 ] : (AIR 2007 SC 1600) wherein it is held that Insurance Company cannot be made automatically liable merely by resorting to Swaran Singhs ratio. It is submitted that since the claim of the claimant in all the appeals was that driver of the offending vehicle in which they were travelling was negligent. Therefore, no amount of compensation could have been awarded and the Insurance Company could not have been held liable for the accident. It is submitted that appeal filed by the respondent No.5 be allowed and the appeal filed by the appellant be dismissed. 11. Learned counsel submits that main document to prove that in what circumstances the accident took place is the FIR and also the spot map which was prepared by the prosecution immediately after the accident. It is submitted that appeal filed by the respondent No.5 be allowed and the appeal filed by the appellant be dismissed. 11. Learned counsel submits that main document to prove that in what circumstances the accident took place is the FIR and also the spot map which was prepared by the prosecution immediately after the accident. Reliance is placed on a decision reported in 2007 ACJ 192 wherein FIR was marked exhibited as both the parties intended to rely upon it, Honble Apex Court has held that Courts were justified in relying upon irrespective of the contents in the documents have been proved or not. In the present case vide order dated 6.8.2010 learned counsel for the respondent No.5 was directed to inform that in the said accident how many casualties took place and how many claim cases have been settled by the Insurance Company without filing the appeal. In spite of lapse of more than ten months,learned counsel for the respondent No.5 has failed to prove the information in this regard. 12. Learned counsel for the respondent No.5 submits that he has written letter to the Insurance Company but the same has not been replied. Ext.P/2 is the FIR wherein the date of accident is mentioned as 25.12.2003 and the time of the accident is mentioned as 10.30 a.m. While the FIR was lodged by R.P. Mishra ASI who has received the intimation in police station. Ext. P/3 is the spot map which is prepared on 27.2.2003 which was also prepared by 13. In all the cases, claimants are legal representatives of the deceased who were not available on the spot at the time when the accident took place. Similarly a person who has lodged present FIR was not on the spot and the contents of the FIR are based on the information which are received by him. The only witness who was present on the spot was travelling in the offending bus is Mahesh who was also injured and was examined as claimants witness in MA No. 3032/2008 wherein the deceased is K.Sudhakaran and has stated that the accident occurred because of rash and negligent driving of both the vehicles. This witness has thoroughly cross-examined by an advocate appearing on behalf of respondent No.5/Insurance Company. This witness has thoroughly cross-examined by an advocate appearing on behalf of respondent No.5/Insurance Company. In the cross examination, it was not the suggestion of the respondent No.5 that the accident occurred because of rash and negligent driving of the bus. On the contrary, cross examination is on the point that in fact he was not travelling and he has not seen the accident. Apart from this, in the written statement filed by respondent No.5/Insurance Company in all the three cases, case of the Insurance Company is that the accident occurred because of rash and negligent driving of both the drivers. Therefore, it was a case of composite negligence. When the Insurance Company has come with a case that the accident occurred because of composite negligence then at the stage of appeal Insurance Company has no right to say that the accident occurred because of rash and negligent driving of another vehicle, which has not been insured to avoid liability. 14. In the facts and circumstances of the case, learned tribunal has rightly held that respondent No.5/Insurance Company liable for payment of compensation in MA No. 1943/2008. In other two appeals MA Nos. 3858/2008 and 3032/2008 learned tribunal committed error in holding that respondent No.5/Insurance Company is exonerated. 15. From perusal of award, it appears that all the cases were filed in different different claims Tribunal, no efforts were made by the Insurance Company to keep all the cases together. With the result all the cases were tried in different Claims tribunal and different different awards were drawn by the learned tribunal. In a motor accident number of casualties took place and number of claim petitions are being filed. It is the duty of the Insurance Company to keep watch and get all claim cases consolidated. Insurance Company not only failed to discharge the duty before the learned tribunal but also failed to inform this Court that in how many claim cases claim has been settled. So far as compensation is concerned in MA No.3858/2008 it appears that on account of funeral expenses, for loss of consortium, the amount awarded by the learned tribunal is on lower side. It is submitted that no amount has been awarded under the head of loss of estate. After taking into consideration all the evidence on record this Court is of the view that it will be proper to enhance the compensation of Rs.10,000/-. It is submitted that no amount has been awarded under the head of loss of estate. After taking into consideration all the evidence on record this Court is of the view that it will be proper to enhance the compensation of Rs.10,000/-. 6. In MA No. 3032/2008, The income of the deceased has been assessed @ Rs. 6000/-per month and multiplier of 13 has been applied while the return which is on record which is Exts. P/11 to P/17. The last return is Ext. P/17 which is for the year 2003-04. Since death took place on 26.1.2003, therefore, Ex. P/17 is of no use. Ex. P/13 is the return for the year 2000-01 which was filed on 31st July, 2001 wherein income of the deceased has been assessed as 1,1000/-. Since the income of the employee who is deceased Tommy, was assessed at Rs.6000/-per month, therefore, there was no reason to assess the income of the deceased who was the employer at the same rate. 17. In the facts and circumstances of the case, this Court is of the view that income of the deceased ought to have been assessed @ 1,00,000/-per year. In view of this, appellants are entitle for the following amount : Rs.8,58,000/- towards loss of dependency. Rs 2,000/-towards funeral expenses. Rs. 5,000/-towards consortium. Rs. 10,000/-towards love and affection Rs. 5,000/-towards loss of estate Rs.8,80,000/-Total 18. Thus, in MA No. 3032/2008, appellants are entitle for Rs.8,80,000/-, instead of Rs.6,48,500/-. The enhanced amount of Rs.2,31,500/-, shall carry interest @ 8% p.a. 19. With the aforesaid modification the appeals stands disposed of. No order as to costs. Copy of this order be placed in connected MA Nos.3032/2008 and 1943/2008. Order accordingly.