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2020 DIGILAW 936 (KAR)

Bapu v. V M Matere Infrastructure India Pvt. Ltd.

2020-06-01

S.G.PANDIT, V.SRISHANANDA

body2020
JUDGMENT V. Srishananda, J. - Both these appeals are arising out of one and the same judgment and award dated 24.09.2018 passed by the IV Additional District and Sessions Judge and Additional M.A.C.T., Belagavi (hereinafter referred to as 'the Tribunal' for short) in MVC No.1240/2015. 2. Though these appeals are listed for admission, with the consent of the learned counsel for parties heard finally and appeals are taken up for final disposal. 3. Appeal in MFA No.104420/2018 is filed by the appellants, who are the claimants, seeking enhancement of compensation awarded by the Tribunal, while appeal in MFA No.100003/2019 is filed by the appellant/Insurance Company challenging the validity of the impugned judgment and award passed by the Tribunal. 4. The brief facts which are necessary for disposal of these appeals are as under:- The appellants in MFA No.104420/2018, who are the claimants, filed a claim petition under Section 166 of the Motor Vehicle Act, seeking compensation in a sum of Rs.85,00,000/- with interest inter alia claiming that they are the father, mother and step-mother of deceased/Vishal Bapu Sutar, who lost his life in road accident occurred on 25.01.2015 at about 9.15 a.m., when he was proceeding on Honda-Dio motorcycle bearing registration No.MH-14/CT-1706 near Vadant Society, Moshi Pradhikaran, Pune and the dumber bearing No.MH-14/CP-1969 came in a rash and negligent manner and dashed against the said motorcycle. He sustained fatal injuries in the accident and was shifted to Shanta Dnyaneshwar Hospital, Pune, where he succumbed to the injuries. 5. It is the case of the claimants that they have spent Rs.50,000/- towards funeral expenses. The deceased was aged about 24 years and was working as a mechanic engineer in a private company at Pune and was earning Rs.25,000/- per month. They also contended that having regard to the educational qualification the deceased possessed, there was a bright future for the deceased person and he would have earned a sum of Rs.2,00,000/- per month. 6. After notice, the respondent/insurance company and the owner of the dumper appeared before the Tribunal and they filed their statement of objections. They also contended that having regard to the educational qualification the deceased possessed, there was a bright future for the deceased person and he would have earned a sum of Rs.2,00,000/- per month. 6. After notice, the respondent/insurance company and the owner of the dumper appeared before the Tribunal and they filed their statement of objections. The 1st respondent, who is the owner of the offending vehicle denied the petition averments and also stated that in the event the Tribunal comes to a conclusion that the accident has occurred on account of negligent driving of the driver of the dumper, the liability should be saddled on respondent No.2, who is the insurer of the said offending vehicle. 7. The respondent No.2/Insurance company has also denied the petition averments including the age, salary, future income of the deceased and the expenses incurred for funeral etc. The insurance company has also contended that there was contributory negligence to the extent of 50% on the part of the deceased and the driver of the dumper did not held a valid driving licence and they have violated the policy conditions and thus denied the claim. 8. In order to establish the case of petitioners, the 2nd petitioner Smt. Sunita W/o. Bapu Sutar got examined herself as P.W.1 and got marked in all 21 documents as Ex.P-1 to Ex.P-21. On behalf of respondent No.2/insurance company, one Ganesh S/o. Pralhadrao Deshmukh was examined as R.W.1 and relied on the documentary evidence marked at Ex.R-1 to Ex.R-6. 9. The Tribunal after giving anxious consideration to the rival contentions of the parties allowed the petition in part and award a sum of Rs.16,50,000/- in all with interest @ 6% per annum from the date of petition till realization. 10. The learned counsel for the insurance company has contended that the accident having occurred at Pune, the Court at Belagavi did not have jurisdiction to try the claim petition and therefore, the impugned award needs to be set aside. Alternatively, the learned counsel for the insurance company has contended that the findings arrived at by the Tribunal regarding the income of the deceased in a sum of Rs.15,000/- per month is erroneous and prayed for modification of the award. 11. Alternatively, the learned counsel for the insurance company has contended that the findings arrived at by the Tribunal regarding the income of the deceased in a sum of Rs.15,000/- per month is erroneous and prayed for modification of the award. 11. Per contra, the appellants in MFA No.104420/2018, who are the claimants contended that the Tribunal has erred in adjudging the income of the deceased in a sum of Rs.15,000/- per month, which is against the settled legal position and thus prayed for enhancement of the compensation amount. 12. In order to buttress their arguments, the learned counsel for the claimants relied on the judgment of the Division Bench of this court in MFA No.3555/2008 in the case of Sri. Pushpahas Sheeshgiri Kulkarni and another v. M/s. Kadamba Transport Corporation, State of Goa. The appellants/claimants also contended that the compensation awarded by the Tribunal on the conventional heads is too low and prayed for enhancement of the award. 13. In view of the rival contentions of the parties, the following points arise for consideration of this Court:- 1. Whether the insurance company proves that the Tribunal had no jurisdiction to try the claim petition? 2. Whether the insurance company proves that the Tribunal has erred in law in adjudging the income of the deceased in a sum of Rs.15,000/-? 3. If so, to what extent the claimants are entitled for compensation? 14. On cumulative consideration of entire material on record, we answer the above points as under: Point No.1 : In the negative Point No.2 & 3 : As per final order for the following: REASONS 15. Point No.1:- The prime contention of the learned counsel for the insurance company is that the Tribunal at Belagavi did not have the jurisdiction to adjudicate the claim. The said contention cannot be countenanced in law inasmuch as the Motor Vehicles Act is a benevolent piece of legislation wherein the victims of accident on account of negligent driving are being protected. Hyper-technical approach in such matter cannot be appreciated. The Territorial jurisdiction cannot be interpreted in such a way so as to defeat the very object of the benevolent piece of legislation. 16. Further, it is well settled principle of law that the issue of jurisdiction has to be raised by a party to a lis at the earliest point of time. The Territorial jurisdiction cannot be interpreted in such a way so as to defeat the very object of the benevolent piece of legislation. 16. Further, it is well settled principle of law that the issue of jurisdiction has to be raised by a party to a lis at the earliest point of time. It must also be pleaded before the Court at the inception of the Trial. It is pertinent to note that the insurance company did not canvas the point of jurisdiction in their statement of objection. Further, in the absence of such plea, there was no issue raised by the Tribunal. 17. No doubt the Tribunal in impugned judgment has dealt with the said aspect of the matter in para No.6. That may be because of the fact that the insurance company at the fag end of the trial, during the course of arguments, has canvassed the point of jurisdiction. Mere consideration of the fact of the jurisdiction issue by the Trial Court in the impugned judgment, would not ipso facto cure the defect of nonraising the plea by the insurance company. 18. Moreover, in the present case, the insurance company has its office at Belagavi and therefore, the insurance company cannot take the plea of want of jurisdiction. 19. In this regard, we gainfully place reliance on the judgment of the Hon'ble Apex Court in the case of Malati Sardar v. National Insurance Company Limited and others, (2016) 3 SCC 43 . The relevant portion of the judgment is culled out for ready reference of the Court. "11. In our view, the matter is fully covered by decisions of this Court in Mantoo Sarkar (supra). It will be worthwhile to quote the statutory provision of Section 166(2) of the Act : "166. The relevant portion of the judgment is culled out for ready reference of the Court. "11. In our view, the matter is fully covered by decisions of this Court in Mantoo Sarkar (supra). It will be worthwhile to quote the statutory provision of Section 166(2) of the Act : "166. Application for compensation.- * * * (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant." 12. In Mantoo Sarkar (supra), the insurance company had a branch at Nainital. Accident took place outside the jurisdiction of Nainital Tribunal. The claimant remained in the hospital at Bareilly and thereafter shifted to Pilibhit where he was living for a long time. However, at the time of filing of the claim petition he was working as a labourer in Nainital District. The High Court took the view that Nainital Tribunal had no jurisdiction and reversed the view taken by the Tribunal to the effect that since the office of the insurance company was at Nainital, the Tribunal had the jurisdiction. This Court reversed the view of the High Court. It was held that the jurisdiction of the Tribunal was wider than the civil court. The Tribunal could follow the provisions of Code of Civil Procedure (CPC). Having regard to Section 21 CPC, objection of lack of territorial jurisdiction could not be entertained in absence of any prejudice. Distinction was required to be drawn between a jurisdiction with regard to subject matter on the one hand and that of territorial and pecuniary jurisdiction on the other. A judgment may be nullity in the former category, but not in the latter. 13. Reference was also made to earlier decision of this Court in Kiran Singh vs. Chaman Paswan, (1954) AIR SC 340 to the following effect : (Mantoo Sarkar case, SCC P.250, para 21) "21. ... 17. ... "7. A judgment may be nullity in the former category, but not in the latter. 13. Reference was also made to earlier decision of this Court in Kiran Singh vs. Chaman Paswan, (1954) AIR SC 340 to the following effect : (Mantoo Sarkar case, SCC P.250, para 21) "21. ... 17. ... "7. ... With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 CPC and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.' (Kiran Singh case, AIR p.342 para 7) * * *" 14. We are thus of the view that in the face of judgment of this Court in Mantoo Sarkar (supra), the High Court was not justified in setting aside the award of the Tribunal in absence of any failure of justice even if there was merit in the plea of lack of territorial jurisdiction. Moreover, the fact remained that the insurance company which was the main contesting respondent had its business at Kolkata. 15. Reliance placed on decisions of this Court in G.S. Grewal and Jagmittar Sain Bhagat is misplaced. In G.S. Grewal, the subject matter of dispute was not covered by the definition of "service matters" under Section 3(o) of the Armed Forces Tribunal Act, 2007 and on that ground, it was held that the Armed Forces Tribunal had no jurisdiction in the matter. In G.S. Grewal, the subject matter of dispute was not covered by the definition of "service matters" under Section 3(o) of the Armed Forces Tribunal Act, 2007 and on that ground, it was held that the Armed Forces Tribunal had no jurisdiction in the matter. Thus, it was a case of inherent lack of jurisdiction over the subject matter. Similarly in Jagmittar Sain Bhagat, the claimant before the Consumer Protection Forum was found not be a "consumer" under Section 2(1) (d) of the Consumer Protection Act, 1986 and on that ground the order of the consumer forum was held to be without jurisdiction. The said cases did not deal with the issue of territorial jurisdiction. 16. The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar, contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC." 20. Applying the legal principles enunciated in the above decision to the present case, the insurance company having its office at Belagavi cannot raise the question of want of territorial jurisdiction despite the fact that the accident has taken place at Pune. In view of the said contention urged by the insurance company that the award is bad in law for want of territorial jurisdiction cannot be sustained in the eye of law. Hence, we answer Point No.1 in the negative. 21. Regarding Point Nos.2 and 3, it is contended on behalf of the insurance company that the Tribunal has erred in law in assessing the monthly income of the deceased at Rs.15,000/- per month. The claimants have contended that the Tribunal has erred in adjudging the income of the deceased at Rs.15,000/- which is too low. 22. 21. Regarding Point Nos.2 and 3, it is contended on behalf of the insurance company that the Tribunal has erred in law in assessing the monthly income of the deceased at Rs.15,000/- per month. The claimants have contended that the Tribunal has erred in adjudging the income of the deceased at Rs.15,000/- which is too low. 22. On record, the claimants have placed oral and documentary evidence Exs.P.10 to 14, which are the documents pertaining to the educational qualification of deceased Vishal. It is the specific contention of the claimants that the deceased was a B.E. graduate. They also contended, having regard to the educational qualification of the deceased possessed, that the deceased had a very bright future and he would have earned a sum of Rs.2,00,000/- per month. 23. Exs.P.17 to 20 are the documents produced by the claimants to show that one Swapnil Bhosale, a B.E., graduate, who is the friend of the deceased was employed in Johnson Controls Limited and was getting salary of Rs.31,849/- per month. Those documents were relied by the claimants to show that if the deceased had joined in Johnson Controls Limited, he would have also earned so much of salary that of his friend. 24. The Tribunal considered the legal principles enunciated in the case of Divisional Manager National Insurance Co. Ltd.,vs. Laxmibai 2016 KantMAC 64(Kant) ) and in the case of Ashvinbhai Jayantilal Modi vs. Ramkaran Ramachandra Sharma and another,2014 SCCR 952 and came to the conclusion that the educational qualification is one of the criteria to arrive at the monthly income even though the deceased is not employed. 25. The Tribunal also considered the legal principles enunciated in National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 while arriving at the income of the deceased. 26. P.W.1 herself clearly admits in her crossexamination that she did not produce any document to show that her son, deceased Vishal, was earning Rs.25,000/- per month as salary. Thus, there is no material to indicate the income of the deceased. Exs.P.17 to 20 belongs to one Swapnil Bhosale, a friend of the deceased and not pertaining to the deceased. 26. P.W.1 herself clearly admits in her crossexamination that she did not produce any document to show that her son, deceased Vishal, was earning Rs.25,000/- per month as salary. Thus, there is no material to indicate the income of the deceased. Exs.P.17 to 20 belongs to one Swapnil Bhosale, a friend of the deceased and not pertaining to the deceased. Thus, in the absence of any material evidence placed by the claimants on record to show that the deceased was earning Rs.25,000/- per month as salary, the Tribunal had no other option but to arrive at monthly income of Rs.15,000/- solely on guess work. 27. Further, this Court and the Lok-Adalaths have assessed the monthly income notionally, of a person who is unemployed, for the accident cases of the year 2014 at Rs.7,500/-. The said sum of Rs.7,500/- is assessed in case of unskilled worker. There is no dispute as to the fact that the deceased was holding B.E. degree, which is evident from Exs.P.10 to 14. While arriving at monthly income on a guess work, the Courts are required to consider the educational qualification as one of the criteria as held in Divisional Manager, National Insurance Co. Ltd., vs. Laxmibai (supra) and in Ashvinbhai Jayantilal Modi vs. Ramkaran Ramachandra Sharma and another (supra). When the legal principles enunciated in the above said decisions are taken into consideration, the assessment of Rs.15,000/- as a monthly income by the Tribunal on the basis of guess work, in our considered opinion, the same need not be interfered. Therefore, we do not find any good grounds to interfere with the finding of the Tribunal in arriving at monthly income of Rs.15,000/- but it is pertinent to note that though the Tribunal considered the legal principles in Pranay Sethi case (supra) but has declined to grant any addition to the monthly income towards future prospects. The reasoning recorded by the Tribunal that the deceased cannot take advantage of the legal principles in Pranay Sethi case (supra) cannot be countenanced in law. Admittedly, the deceased was aged about 24 years and therefore, as per Pranay Sethi case (supra), while arriving at monthly income, 40% of the income needs to be added. Therefore, the monthly income that could be arrived at is Rs.21,000/- (Rs.15,000 + 6,000 = 21,000). 28. Admittedly, the deceased was aged about 24 years and therefore, as per Pranay Sethi case (supra), while arriving at monthly income, 40% of the income needs to be added. Therefore, the monthly income that could be arrived at is Rs.21,000/- (Rs.15,000 + 6,000 = 21,000). 28. Since the deceased was unmarried and the claimants being the father, mother and step-mother of the deceased, 50% of the said amount has to be deducted from the monthly income of Rs.21,000/- towards personal expenses of the deceased and that would work out to Rs.10,500/-. Having regard to the age of the deceased, the appropriate multiplier is 18' and accordingly, on the head of loss of dependency, this Court arrives at Rs.22,68,000/- (Rs.10,500 X 12 X 18 = Rs.22,68,000/-). However, on other conventional heads, we do not find any infirmity and as such, the amount of Rs.30,000/- awarded under conventional heads and the interest is maintained. To the said extent the award of the Tribunal is modified. Accordingly, point No.2 and 3 are answered and we pass the following: ORDER In modification of the award passed by the Tribunal, the claim petition is allowed by awarding a total compensation of Rs.22,98,000/- with interest @ 6% per annum from the date of petition till realization. The order of apportionment as ordered by the Tribunal shall hold good proportionately. The Insurance Company shall deposit the entire amount of compensation with interest within a period of six weeks from the date of receipt of certified copy of this order, failing which the said amount shall carry interest at the rate of 9% p.a. from the date of default, till the date of deposit. The amount in deposit, if any, made by the insurance company shall be transmitted to the jurisdictional Tribunal forthwith. Accordingly, the appeals are disposed of.