Dismissed

The New India Assurance Co. Ltd. v. Vimalbai Govindrao Kawle and Ors.

Bombay HC7 Jul 2015FA/1093/2010

Case brief

AI extract

What is this about?

This is an interim order dismissing an interim appeal and allowing a civil application for restoration. The court held the Tribunal rightly assessed 60% liability and income based on documentary evidence, dismissing the insurance company's appeal. It further allowed withdrawal of the claimant's share for minor beneficiaries.

What did the court decide?

Civil Application No.7056/2015 allowed; Appeal dismissed; Civil Application No.2183/2015 disposed of allowing withdrawal for minor claimants and direction regarding funds for others.

The New India Assurance Co. Ltd. Vs Vimalbai Govindrao… — Motor Accident Claims | Bombay HC (2015)

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FA 1093/2010 with CAs 7056/15 & 2183/15

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 FIRST APPEAL NO.1093/2010

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WITH
CIVIL APPLICATIONS NOS.
7056/2015 AND 2183/2015

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The New India Assurance Company Ltd.,
a Subsidiary of the General Insurance
Corporation of India And a company
incorporated under the Companies Act
Having its regional office at Seminary
Hall Buldg.Nagpur, and one of its
Divisional Office at Adalat Road,
Aurangabad.Through its Senior
Divisional Manager Shri Vishwas Bansi
Gayakwad, age 52 yrs., occu.service.
...Appellant..
 (Org.res.no.3)

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Versus

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1] Vimalbai Govindrao Kawle, age 32 yrs., occu.household r/o Kawlewadi Tq.Parali Vaijinath Dist.Beed.

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2] Sachin Govindrao Kawle, age 10 yrs., u/g of respondent no.1

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3] Sarika Govindrao Kawle, age 8 yrs., u/g of respondent no.1

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4] Kalpana Govindrao Kawle, age 6 yrs., u/g of respondent no.1.

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5] Mangal Govindrao Kawle, age 3 yrs., u/g of respondent no.1

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FA 1093/2010 with CAs 7056/15 & 2183/15

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6] Ravi Govindrao Kawle, age 1.5 years u/g of respondent no.1

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7] Abhiman Bhikaji Dhumal, age major occu.agri. r/o Telgaon Tq.Wadwani Dist.Beed.

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8] Shaikh Rahim Shaikh Amir, age major, occu.Not known, r/o Didrud Tq.Majalgaon. Dist.Beed.

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...Respondents...

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(Nos.1 to 6 org.claimants
 Nos.7 & 8 org.res.nos.1 & 2)

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 .....

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Shri Ajit Kadethankar, Advocate for appellant.
Shri K.J. Suryawanshi, Advocate for respondent nos.1 to
6.

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 .....

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CORAM: N.W. SAMBRE, J.
DATE: 07.07.2015

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ORDER :

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1] Heard learned counsel appearing for the parties.

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2] Civil Application No.7056/2015 is for restoring the

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appeal to its original position. As the contentions in

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the application are not objected, the Civil Application

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No.7056/2015 stands allowed in terms of prayer clauses

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(B) and (C) and disposed of. The First Appeal

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No.1093/2010 is taken up for final disposal at the stage

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FA 1093/2010 with CAs 7056/15 & 2183/15

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of admission with the consent of learned counsel
appearing for the parties.

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3]The appellant – Insurance Company has questioned

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the award delivered by the Motor Accident Claims
Tribunal, Ambajogai, on 5.5.2007 in Motor Accident Claim
Petition No.30/2002 wherein the Insurance Company was
directed to pay an amount of Rs.3,74,200/- towards the
compensation alongwith other benefits.

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4]The learned counsel for the appellant has raised
two-fold contentions :

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a]In view of the evidence of claimants' witness

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Ashok, who was examined at Exhibit 40/C, the income

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of the deceased should have been taken into account

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to the extent of Rs.36,000/- for initial six months

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i.e. during crushing season and Rs.18,000/- for
remaining period i.e. during non-crushing season.
According to him, the Tribunal has considered the
annual income of the deceased as Rs.54,000/- and as
such has committed an error.

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b]As the accident took place in the centre of the
road, saddling of 60% liability on the present
appellant is erroneous, which should have been only

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FA 1093/2010 with CAs 7056/15 & 2183/15

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50% as both the vehicles were equally held
responsible and hence contributory negligence should
have been considered in view of the spot panchanama

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(Exh.31) and complaint (Exh.30).

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4]In support of his contentions, the learned

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counsel for the appellant has taken me through the

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evidence of PW2 Suresh and also the findings recorded by
the Tribunal.

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5]While countering the above contentions, the

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learned counsel for the claimants – respondent nos.1 to 6

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herein, would urge that the Tribunal has rightly taken

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into account annual income of the deceased to be

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Rs.54,000/- in view of the evidence that was brought on

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record by PW2. He would urge that the said witness has
in clear terms deposed that the deceased was drawing
Rs.6,000/- per month salary during the crushing season

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and for non-crushing season, he was getting Rs.100/- per

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day i.e. Rs.3,000/- per month as wages. According to
him, if the Tribunal has taken into account the annual

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income of Rs.54,000/-, the same is based on above
referred evidence. He would further urge that the degree

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of negligence, which was weighed for awarding

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FA 1093/2010 with CAs 7056/15 & 2183/15

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compensation to the extent of 60% from the appellant –
Insurance Company is based on interpretation of complaint
(Exh.30) and spot panchanama (Exh.31). He supports the
award and seeks dismissal of the appeal.

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6]Having analyzed the rival submissions, it is
noticed that the Tribunal has considered the documentary
evidence i.e. Exhibits 30 and 31, copy of the complaint
and spot panchanama for drawing the conclusion as regards
the contributory negligence of the deceased and the other
vehicle driver. Based on the same, the Tribunal has
proceeded to award the compensation to the claimants by
saddling 60% liability on the present appellant. The
basis for saddling the said liability on the appellant
was the interpretation of documents i.e. Exhibits 30 and

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31. Based on the scheme of Chapters XI and XII of the
Motor Vehicles Act and the social aspect, I am of opinion
that the Tribunal has rightly taken into account the said
documentary evidence and has saddled 60% liability on the
appellant.

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7]So far as annual income of the deceased is
concerned, admittedly it has been brought on record that
the deceased was earning Rs.6,000/- per month during

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FA 1093/2010 with CAs 7056/15 & 2183/15

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crushing season and Rs.3,000/- per month during non-
crushing season. The Tribunal has taken into account the
same to be basis for reaching to a conclusion of annual
income at Rs.54,000/-. Such a conclusion is based on the
evidence of PW2 who was examined at Exhibit 40/C. The
other suggestions given by the appellant – Insurance

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Company to the said witness has not resulted in
elucidating any other adverse material.

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8]In view of above, in my opinion, the Tribunal
has rightly appreciated the entire evidence and as such
has awarded the compensation in question.

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9]No case is made for interference in appellate
jurisdiction. The appeal stands dismissed with no order
as to costs.

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10]Civil Application No.2183/2015 is filed by
respondent nos.1 to 6, who are applicants - claimants,
for withdrawal of the amount. In view of dismissal of

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present appeal, applicant nos.1 to 4 are entitled to
withdraw to the extent of 1/6th of the share from the

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amount deposited by the Insurance Company. So far as
the applicant nos.5 & 6 are concerned, their amount be
deposited in any Nationalized Bank and the withdrawal of

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FA 1093/2010 with CAs 7056/15 & 2183/15

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the same shall be allowed to them upon attaining their
age of majority. Civil Application No.2183/2015 is
disposed of accordingly.

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ndk/ c77156.doc

The New India Assurance Co. Ltd. v. Vimalbai Govindrao Kawle and Ors.

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Vimalbai Govindrao Kawle and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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