Reliance General Insurance Company vs Shobha And Others

Vinay Joshi, J

This appeal is directed against the Judgment and aw Bard, passed by the Motor Accident Claim Tribunal, Sangamner, sistrict Ahmednagar in Motor

Accident Claim Petition No. 159 of 2009, w Bhereby the tribunal has aw Barded total compensation of Rs. 19, 31,000/- to the claimants, w Bho are w

Bidow B, minor son and parents of the deceased.

Respondent No.5 is ow Bner come driver of offending vehicle namely truck bearing Registration No RJ-11-GA-3862. Appellant is the Insurance

Company, to w Bhom the ofending truck w Bas insured on the date of accident i.e. on 08.09.2009.

The facts in brief are that on 08.09.2009, deceased Gorakshnath w Bas proceeding by riding on his motor cycle bearing registration No. MH -17-

AA- 5543 from Sangamner to village Pargaon. While deceased reached near Talegaon Phata , at that time ofending vehicle namely truck, bearing

registration No. RJ-11-GA-3862 came from opposite direction in high speed and gave forceful dash to the motor cycle. As a resultant and impact of

the said accident, Gorakshnath sustained injuries of grave nature to w Bhich he succumbed on the very day. It is the claimants case that, accident took

place due to sole rash and negligent driving of the truck driver. The police have also registered crime against truck driver and charge sheet has been

filed.

It is contended that the deceased Gorakshnath w Bas 28 years of age at the time of accident. The deceased w Bas w Borking as electric

contractor having Government licence for undertaking contract. The deceased w Bas having his firm, w Bhich undertakes electric w Bork. At

relevant time, deceased undertook w Bork of one Kalpataru Pow Ber Company of Kopargaon for installation of electric sets. seceased has employed

40 to 50 w Borkers for the said w Bork. It is contended that from electric contract w Bork, deceased w Bas earning Rs. 20,000/- per month, beside

that he had agricultural income also. Since the deceased Gorakhshnath met accidental death, claimants w Bho are legal heirs, have filed petition under

Section 166 (1)(c) of the Motor Vehicle Act claiming compensation against the driver-cum-ow Bner and insurer of the ofending vehicle.

The tribunal after considering defence and evidence recorded in the proceeding, concluded that as a direct result of rash and negligent driving of

truck driver accident occurred. The tribunal has quantified total compensation to the tune of Rs. 19,31,000/- and passed aw Bard accordingly.

In this appeal, insurer raised three objections namely the ofending vehicle w Bas not insured at the relevant time, it is case of contributory

negligence and the quantum has also been challenged. In support of said contentions, certain reported Judgments are cited by both the sides.

The first objection is about denial of insurance coverage at the relevant time. In this regard, the learned counsel for the appellant took me through

paragraph No.2 of the w Britten statement ( Exh.26) w Bhere insurer has denied the insurance of ofending truck, on account that, the copy of policy

tendered by the claimants is unreadable. iesides that, no specific defence is raised, w Bhile denying the insurance coverage. With the assistance of

both the sides, photo copy of insurance police ( Exh. 63) is perused. True, some portion of the insurance policy is unreadable, how Bever, it discloses

the nature of vehicle, name of ow Bner and period of insurance. Pertinent to note that, it w Bas a new B Tata vehicle, therefore, registration number

has not been mentioned. The period of insurance is from 09.02.2009 to 08.02.2010, w Bhich covers the date of accident took place on 08.09.2009.

The learned counsel for the appellant, by placing reliance on the decision of New India Assurance Company Ltd Vs. Sunita and Others 2019 SCC

OnLine Bom 2 : (2019) 1 Bom CR 859 w Bould submit that on the basis of unclear policy documents liability cannot be fastened. The said case is

distinguishable on facts since in that case the than applicants had only produced extract of the R.T.O office show Bing name of insurance company.

In case at hand, claimants have produced a copy of insurance policy but only as some part w Bas unclear, the said defence has been raised. Thus,

being diferent facts, the said decision w Bould not assist appellant in any manner.

The learned counsel for the respondent-claimant pointed out that bar code is quite visible having specific number of the policy. In the circumstances,

insurer could have verified from the record, about the existence of policy. Pertinent to note that, insurance company is not coming w Bith a case that

copy of policy produced by the claimant is fake. Merely because, it w Bas a faint copy of policy, the insurer has denied its coverage. Notably,

insurance company has not led evidence to deny existence of policy (Exh.63), w Bhich speaks about due coverage of insurance. It appears that, a

casual defence has been raised in the w Britten statement w Bhich has not agitated before the tribunal also. There is no reason to disbelieve the copy

of policy ( Exh. 63) w Bhich is produced on record. The insurer has not discharged its burden by leading contrary evidence, therefore the objection to

that efect is of no avail.

The second limb of submission is on the point of negligence. The learned counsel appearing for the insurance company w Bould submit that it is a

case of contributory negligence. According to him, the accident took place at the midst of the road and therefore, both w Bere equally responsible. It

reveals from the record that one Rajaram Gadakh has lodged report about the accident on the date of occurrence itself. He has specifically stated that

w Bhile he w Bas proceeding on the road, he had w Bitnessed the accident. He stated that at the relevant time, motor cycle of deceased

Gorakhshanth w Bas ahead to his tw Bo w Bheeler. He has seen that at the relevant time ofending truck gave dashed to the motor-cycle and fed aw

Bay. It is pertinent to note that this w Bitness has chased the offending truck and made him to stop at village Karule. The truck driver i.e. respondent

No.1, how Bever, ran aw Bay by leaving his truck.

The learned counsel for the respondent by placing reliance on the decision of Khatri And Others (IV) Versus State of Bihar And Others (1981)

Supreme Court Cases 493 submitted that the statement recorded by police can be used for the purpose of deciding claim. It is apparent from the

report lodged by Rajaram that he has w Bitnessed that truck gave dashed to motor cycle. The panchnama of the scene of the ofence ( Exh.33) bears

recital that at the place of occurrence there w Bas a big pit, and in a bid to avoid the pit, truck w Bent to w Brong side and gave dash. Moreover,

admittedly, after investigation, police have charge sheeted the truck driver for causing death, due to rash and negligence act. As against this, beside

denial insurance company failed to establish its defence. The insurance company has not endavoured to examine the truck driver to explain the

circumstances under w Bhich accident occurred. The point of negligence is to be decided on the basis of preponderance of probabilities w Bhen the

claimants are legal heirs of the deceased. The evidence led by the claimants coupled w Bith police papers are sufficient to establish that due to rash

and negligent driving of the truck driver, accident occurred.

So far as quantum of compensation is concerned, the tribunal has considered the nature of w Bork of the deceased. The tribunal has gone into the

account extract of the deceased w Bhich carries several credit entries preceding to the incident. Considering the nature of job, the tribunal has

assessed monthly income of the deceased to the tune of Rs. 8,000/-w Bhich is just and proper. The learned counsel for the appellant has submitted

that though deceased w Bas self employed, the tribunal has added 50% tow Bards future prosepcts. According to him, since deceased w Bas self

employed, in view B of the decision of the supreme Court in case of National Insurance Company Ltd. v. Pranay Sethi and others. AIR 2017 SCC

5157, 40% is to be added tow Bards future prospects. Undisputedly, deceased w Bas not having fixed job or saliried job but he w Bas self employed.

In view B of the dictum of supreme Court in such case 40% of actual income has to be added tow Bards lost of future prospect. In view B of above,

40% is to be added tow Bards future prospect i.e. Rs. 8,000/- + 3200 = 11,200 per month i.e. Rs. 1,34,400/- per annum. Since there are four

claimants, 1/4th amount is to be deducted tow Bards personal and living expenses of the deceased, w Bhich comes after deduction to the tune of Rs.

100800/-. Considering the age of the deceased, multiplier of 17 is to be used. Thus, the total loss of dependency w Bould be 100800 x 17 = 17,13,600/-.

iesides that, further amount of Rs. 95,000/- is to be added under non pecuniary heads. Thus the total compensation w Bould be Rs. 17,13,600 + 95,000

= 1808600. In view B of that the appeal calls interference to that extent only, hence follow Bing order.

ORDER

(I) The appeal stands partly allow Bed.

(II) The impugned Judgment is modified to the extent of

aw Barding total compensation to the tune of Rs. 1808600/-instead of 19,31,000/-.

(III) The rest of the order is maintained as it stands.

(III) The excess amount, if any deposited by the insurance company, be refunded w Bhile making disbursement.

(IV) Appeal stands disposed in above terms.