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2024 DIGILAW 509 (BOM)

Medhini Kajumolkar v. Uday Sawarastkar

2024-03-28

M.S.SONAK

body2024
JUDGMENT : (M.S. Sonak, J.) 1. Heard Mr. Milton Marshal for the appellant and Mr. James Lopes for respondent no.3-insurance company. 2. The challenge in this appeal is to the Judgment and Award dated 11.12.2023, by which the Motor Accident Claims Tribunal (Tribunal) dismissed Claim Petition No.90/2019 on the ground that the claimant (mother of the 28-year-old deceased Nagesh) was unable to establish that the accident was caused by rash and negligent driving by the first respondent, i.e., the driver of Ashok Leyland Truck bearing registration No.KA-23-A-9061 (offending vehicle). This was despite the fact that the JMFC, by judgment and order dated 16.02.2021, convicted the first Respondent for rash and negligent driving under Sections 279 and 304A of the Indian Penal Code. 3. The Tribunal, as it appears to have become routine, after answering the issue of rashness and negligence against the mother of the deceased, did not bother to determine the compensation or answer the issue of what would be the just compensation. This is, again, despite the fact that repeated decisions of this Court and the Hon'ble Supreme Court exhorting the Courts and Tribunals to determine all the issues that arise before them. 4. Recently, in the case of Akash Choudhary v/s. Mr. Suman Bagari and Ors. - First Appeal No.38/2023 decided on 21.03.2024, this Court was called upon to deal with a similar award made by the same Presiding Officer of the Tribunal. Not deciding the issue of just compensation is quite serious because it is virtually in defiance of several decisions of the Hon'ble Supreme Court and this Court. In Akash Choudhary (supra), the decision of this Court in Neha Arlekar and Ors. v/s. S. D. Rocky and Ors., which summarises several decisions of the Hon'ble Supreme Court, was specifically cited. Still, after deciding on the issue of rashness and negligence, the Presiding Officer virtually refused to decide on the issue of just compensation. Even the observations of this Court that such an approach is most unfortunate seemed to have no effect. 5. In Mr. Oswald Caldeira v/s. Devandra Naik and Ors. - First Appeal No.46/2023 decided on 12.02.2024, this Court was constrained to observe the following in paragraphs 3 to 9:- "3. However, after recording this finding, the Tribunal did not bother to record any finding on other issues, particularly on the quantum of compensation. 5. In Mr. Oswald Caldeira v/s. Devandra Naik and Ors. - First Appeal No.46/2023 decided on 12.02.2024, this Court was constrained to observe the following in paragraphs 3 to 9:- "3. However, after recording this finding, the Tribunal did not bother to record any finding on other issues, particularly on the quantum of compensation. In doing so, the Tribunal acted in breach of several rulings of the Hon'ble Supreme Court, and this Court requiring the Courts and Tribunals to avoid shortcuts and decide all issues that fall for determination. 4. In Bimlesh v. New India Assurance Company Limited, (2010) 8 SCC 591 , in paragraphs 7, 8 & 9, the Hon'ble Supreme Court has held that the Tribunal has to follow the summary procedure subject to any rules that may be made in this behalf. The Civil Procedure Code, 1908, is not strictly applicable to the proceedings before the Claims Tribunal except to the extent provided in Section 169 (2) of the MV Act and the Rules made thereunder. The whole object of the summary procedure is to ensure that the Claim Petition is heard and decided expeditiously by the Claims Tribunal. In paragraph 9, the Hon'ble Supreme Court has held that the Claims Tribunal must dispose of all issues one way or the other while deciding the claim petition. 5. Therefore, the Tribunals should not dispose of the Claim Petitions based on some preliminary issue, usually raised by the Insurance Company about maintainability or otherwise. So also, even after holding that rashness and negligence are not proven, the Tribunals should not neglect to decide on other issues, including the issue of the quantum of compensation. The Hon'ble Supreme Court has held that since all the issues (points for determination) are required to be considered by the Claims Tribunal together in the light of the evidence that may be led in by the parties and not piecemeal, often matters are required to be remanded. Accordingly, in Bimlesh (supra), the matter had to be remanded because not all issues were decided in one go. 6. Recently, even in the Agricultural Produce Marketing Committee, Bangalore v. The State of Karnataka, the Hon'ble Supreme Court has reiterated that the Courts must avoid shortcuts and decide all issues that fall for their determination. 7. Accordingly, in Bimlesh (supra), the matter had to be remanded because not all issues were decided in one go. 6. Recently, even in the Agricultural Produce Marketing Committee, Bangalore v. The State of Karnataka, the Hon'ble Supreme Court has reiterated that the Courts must avoid shortcuts and decide all issues that fall for their determination. 7. This court in Santolina Josephina Sebastao Fernandes v. Inacio Xavier Fernandes, Narcivha Chari v. Joao Faria (First Appeal No. 34 of 2017, decided on 04.03.2022), Benidita Jose Olieveiro v. Naven Costancio Cardozo, Sarita Agarwal v. Felecia Coelho (First Appeal No. 59 of 2017, decided on 29.04.2022), Franky Carvalho alias Neves Franky Carvalho v. Raju Jaswant Singh (First Appeal No. 109 of 2017 decided on 01.07.2022), amongst others, has made it clear that the Tribunal is bound to decide all issues before it, that the law mandates that no shortcuts are adopted by avoiding the determination of some issue for the sake of convenience. 8. Yet it is seen that the Tribunal has adopted a shortcut and did not decide upon the other issues, such as the quantum of compensation; Mr. Ramaiya submits that this was even though some of this Court's judgments were cited in this matter. 9. The Principal District Judges of the North and South Goa districts are now requested to circulate this judgment to the tribunals so there is no repetition." 6. The Principal District Judge is now requested to once again bring to the notice of this Presiding Officer the decisions of this Court in Neha Arlekar (supra) and Oswald Caldeira (supra) so that, at least hereafter, there is no disobedience or defiance with the decisions of the Hon'ble Supreme Court and this Court on the subject of deciding all issues and not adopting any shortcuts (This is the expression used by the Hon'ble Supreme Court in Agricultural Produce Marketing Committee, Bangalore v. The State of Karnataka.) 7. The Tribunal's approach to deciding the issue of rashness and negligence in this matter also suffers from total perversity. Besides, such an approach contradicts the several decisions of the Hon'ble Supreme Court and this Court, including but not restricted to Anita Sharma & Ors. V/s. New India Assurance Company Limited & Anr., (2021) 1 SCC 171 ), Parmeshwari V/s. Amir Chand & Ors., (2011) 11 SCC 635 ), Sunita & Ors. Besides, such an approach contradicts the several decisions of the Hon'ble Supreme Court and this Court, including but not restricted to Anita Sharma & Ors. V/s. New India Assurance Company Limited & Anr., (2021) 1 SCC 171 ), Parmeshwari V/s. Amir Chand & Ors., (2011) 11 SCC 635 ), Sunita & Ors. V/s. Rajasthan State Road Transport Corporation & Ors., ( 2020 (13) SCC 486 ), Mangla Ram V/s. Oriental Insurance Company Ltd. & Ors., (2018) 5 SCC 656 and Dulcina Fernandes & Ors. v/s. Joaquim Xavier Cruz & Anr., (2015) 10 SCC 646 referred to therein. 8. In all the aforesaid cases, the Hon'ble Supreme Court held that the approach of the Court when dealing with such matters has to be sensitive enough to appreciate the turn of events on the spot or the hardship that the claimants face in tracing witnesses and collecting information for an accident when they were themselves not present at the accident spot. Further, the Courts/Tribunals must be cognizant that strict principles of evidence and standard of proof, like in a criminal trial, are inapplicable in MACT claim cases. The standard of proof in such matters is one of the preponderance of probabilities rather than proof beyond a reasonable doubt. 9. In Sunita & Ors. (supra), the Hon'ble Supreme Court has held that it is well settled that in motor accident claims cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place because of the negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of a preponderance of probability and not the strict standard of proof beyond all reasonable doubt, which is followed in criminal cases. 10. The observations of the Hon'ble Supreme Court in Anita (supra) are also apposite and pertinent to this case; the Court observed that it is commonplace for most people to be hesitant about being involved in legal proceedings, and they, therefore, do not volunteer to become witnesses. 10. The observations of the Hon'ble Supreme Court in Anita (supra) are also apposite and pertinent to this case; the Court observed that it is commonplace for most people to be hesitant about being involved in legal proceedings, and they, therefore, do not volunteer to become witnesses. In Parmeshwari (supra), the Hon'ble Supreme Court was constrained to repeat its observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim. 11. The evidence on record in this matter will have to be evaluated by considering the aforementioned perspectives and principles. Since the Tribunal failed to notice these decisions or apply them to the facts emerging from the record, the evidence must be reassessed. 12. In the present case, there is no dispute about the occurrence of the accident on 04.12.2017 at about 15.35 hrs. between scooter bearing registration No.GA-09-M-8592, which deceased Nagesh was riding, and an Ashok Leyland Truck bearing registration No.KA-23-A-9061, which was driven by the first respondent (driver). There is also no dispute that in this accident, Nagesh suffered injuries and ultimately died due to those injuries. 13. The evidence on record shows that an FIR was registered against the first respondent. After investigations, even a charge sheet was filed against the first respondent for committing offences punishable under Sections 279 and 304A of the Indian Penal Code (IPC). The first respondent was, in fact, convicted and sentenced to undergo simple imprisonment for one month for an offence punishable under Sections 279 of the IPC and simple imprisonment for six months for an offence punishable under Sections 304A of the IPC for having rashly and negligently driven his truck on 04.12.2017, thereby causing Nagesh's death. 14. Despite the above overwhelming evidence, which was more than sufficient to prove that the accident was on account of rash and negligent driving by the first respondent, the Tribunal has answered the issue of rashness and negligence against the claimant, i.e. the mother of the deceased Nagesh on the specious ground that the claimant/mother despite being aware that there were eyewitnesses to the accident, failed to examine such eyewitnesses. Such an approach and, consequently, the finding recorded by the Tribunal suffers from total perversity. 15. Such an approach and, consequently, the finding recorded by the Tribunal suffers from total perversity. 15. In adopting such an approach and recording such a finding, the Tribunal has not just ignored but virtually defied the principles laid down by the Hon'ble Supreme Court in such matters. The Tribunal was not at all sensitive to the plight of the claimant and the hardships that claimants usually face in tracing witnesses and collecting information for an accident when they were not present at the accident spot. The Tribunal failed to follow the dictum in Sunita & Ors. (supra) where the Hon'ble Supreme Court has held that once the foundational fact, namely, the actual occurrence of the accident, has been established, the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place because of the negligence of the driver of the offending vehicle. While doing so, the Tribunal must not bind itself strictly by the pleadings of the parties. The standard of proof to be borne in mind must be of a preponderance of probability and not the strict standard of proof beyond all reasonable doubt. 16. In the present case, as noted earlier, even by applying the strict standard of proof beyond all reasonable doubt, the first respondent was convicted of rash and negligent driving. Still, by very curious and insensitive reasoning, the Tribunal concludes that the first respondent was not driving his truck rashly and negligently, even going by the standard of preponderance of probabilities. This is a classic case of perversity arising out of insensitivity, ignoring vital and relevant material on record and defiance of the binding precedents of this Court and the Hon'ble Supreme Court on the subject. 17. If documentary evidence like the panchanama or sketch of the accident site is perused, the same is more than sufficient to establish the rashness and negligence on the part of the first respondent. In any case, once there is a conviction recorded by applying the stricter standard of proof beyond all reasonable doubts, the Tribunal was not at all justified in exonerating this driver and denying Nagesh's parents compensation when in the proceedings under Section 166 of the Motor Vehicles Act the standard of proof to be applied is only that of preponderance of probabilities. Accordingly, for all these reasons, the Tribunal's finding of rashness and negligence must be reversed and is hereby reversed. 18. On the issue of the quantum of compensation, there is evidence that establishes beyond doubt that Nagesh was employed on a salary of Rs.9,360/--per month at the time of his unfortunate accident. A 40% addition has to be made towards future prospects. Thus, Nagesh's monthly salary at the time of his death can be safely taken at Rs.13,104/--per month. 19. Nagesh was a bachelor, so a 50% deduction for his personal expenses would be in order. Therefore, Nagesh's effective contribution to his parents would come to Rs.6,552/- per month. The multiplier, in this case, is 17. Thus, the compensation towards dependency would amount to Rs.6,552 x 12 x 17 = Rs.13,36,608/- 20. The appellant and the fourth respondent are Nagesh's parents. They would be entitled to compensation towards the loss of filial consortium. There was some debate on whether this compensation should be Rs.40,000/- towards each parent in terms of National Insurance Co. Ltd. v/s. Pranay Sethi, (2017) 16 SCC 680 or whether there should be an increase by 10% on this amount effective from 31.10.2017. In the peculiar facts of this case, where the parents have been unjustly denied the just compensation which was due and payable to them, it would be appropriate to go by the higher figure and determine the quantum of compensation towards loss of filial consortium at Rs.48,400/- per parent. Thus, the compensation towards the loss of the filial consortium would come to Rs.96,800/-. Besides, the appellant and the fourth respondent would be entitled to compensation of Rs.18,150/--for loss of estate and a similar amount for funeral expenses. 21. Thus, the just compensation in this case would come to Rs.14,69,708/-. This compensation will have to be shared equally by the appellant and the fourth respondent. In addition, the appellant must be paid the costs in the claim petition and this appeal. The costs should be exclusively paid to the appellant. 22. The respondents are jointly and severally directed to pay the above compensation amount of Rs.14,69,708/- together with interest @ 6% p.a. from the date of institution of the claim petition till the date of actual payment. In particular, the third respondent insurance company is directed to deposit the compensation amount in this Court within six weeks from today after giving due intimation to Mr. In particular, the third respondent insurance company is directed to deposit the compensation amount in this Court within six weeks from today after giving due intimation to Mr. Milton Marshal, learned counsel for the appellant. 23. Once the compensation amount is deposited in this Court, the Registry must transfer 50% of the compensation amount with proportionate interest and the total amount of costs into the appellant's bank account. A balance of 50% of the compensation amount with proportionate interest will have to be transferred into the bank account of the fourth respondent. Mr. Marshal states that the identity and bank details will be supplied to the Registry. 24. There is no record whether or not the first respondent has paid compensation of Rs.18,000/- to the appellant and the fourth respondent in terms of the JMFC's Judgment and Order dated 16.02.2021 in Criminal Case No.08/S/2018. If this amount has not been paid to date, then the first respondent must pay Rs.25,000/- to the appellant within six weeks from today. 25. This appeal is allowed in the above terms. 26. All concerned must act on an authenticated copy of this order.