Partly allowed

Oriental Insurance Co. v. Vasudha Balwantrao Joshi and Anr.

Bombay HC25 Oct 2018FA/107/2004

Case brief

AI extract

What is this about?

In a first appeal against a Motor Accident Claims Tribunal award, the High Court held that the driver's non-joinder did not render the petition non-maintainable. Relying on the Pranay Sethi judgment, the court recalculated compensation based on proven income, future prospects, and multiplier, modifying the original award from Rs. 8,52,800 to Rs. 7,12,600 plus interest.

What did the court decide?

Impugned award modified to Rs. 7,12,600 plus 9% interest from date of filing until deposit; balance excess refunded to appellant.

Oriental Insurance Co. Vs Vasudha Balwantrao Joshi… — Execution and Attachment | Bombay HC (2018)

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902-FA-107-2004 Judg.odt

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 107 OF 2004

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The Oriental Insurance Co. Ltd,
Through its Branch Manager,
Branch Office Sankrapa Market
Ist Floor, Gurugovind Singhji Road,
Nanded, District-Nanded. ..Appellant

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Versus

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1. Vasudha w/o Balwantrao Joshi Age 50 years, Occ-Household. R/o- Cidco and Kavtha, Nanded.

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2.Rahimuddin s/o Shamsuddin,
Age Major, Occu. Transport business and
owner of Auto Rickshaw No. MH-26/B-5427,
r/o Degloor Naka Nanded,
Dist. Nanded. ..Respondents

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...

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Mr. Anil. A. Joshi, Advocate for the Appellant
Mr. S.S. Patnurkar h/f J.P. Legal Associates,
Advocate for Respondent No.1.

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...

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CORAM : P.R. BORA, J.
 DATE : 25th OCTOBER, 2018.

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ORAL JUDGMENT:-

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.The insurance company has preferred the

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present appeal in exception to the judgment and

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award passed by the Motor Accident Claims Tribunal
at Nanded in Motor Accident Claim Petition No. 120
of 2000 decided on 25.09.2003..

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2. The present respondent no.1 had preferred

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the aforesaid claim petition seeking compensation

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on account of death of her son namely Kalayan

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902-FA-107-2004 Judg.odt

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(2)

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alleging the same to have been caused in a
vehicular accident happened on 24.07.1999.
Respondent no.1 is hereinafter referred to as “the
claimant”.

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3.It was the contention of the claimant

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that deceased Kalayan while was proceeding on his
motorcycle, was dashed by an Auto Rickshaw owned by
present respondent no.2 and insured with appellant-
insurance company and in the accident so happened,
he died on the spot. As stated in the petition,
the age of deceased Kalayan at the time of his
death was 26 years and he was working as a honorary
lecturer and his income from all sources was stated

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to be Rs. 15,000/- to Rs. 20,000/-. Accordingly

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the compensation was claimed by respondent no.1.

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appellant-insurance company on various grounds. It

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was the contention of the insurance company that
without adding the driver as a party, the petition

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was not maintainable. The age and income of
deceased was also disputed. The plea of

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contributory negligence was also raised. The
Tribunal, however, after having assessed the oral

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902-FA-107-2004 Judg.odt

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(3)

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and documentary evidence brought on record held the
claimant entitled for the total compensation of Rs.
8,52,800/- inclusive of NFL compensation.
Aggrieved by, the insurance company has preferred
the present appeal.

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5.Shri Joshi, the learned counsel appearing
for the appellant-insurance company assailed the
impugned judgment mainly on two grounds. The
learned counsel submitted that when 'to prove the
negligence' was the burden on the claimant, the
driver of the offending vehicle was necessary
party. In absence of the said driver being party

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to the present proceeding, the claim petition was

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liable to be rejected on that ground alone. The
learned counsel further submitted that the Tribunal
has also erred in holding the income of deceased

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without any concrete evidence therefore. The
learned counsel submitted that deceased was in
temporary employment and as such his income could

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not have been held to the tune of Rs. 4,500/- as

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has been held by the Tribunal. The learned counsel
further submitted that even for future prospects,
the lump-sum amount of compensation awarded by the

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902-FA-107-2004 Judg.odt

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(4)

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Tribunal is erroneous. On these grounds the
learned counsel for the insurance company has
sought modification in the order of compensation
and to allow the appeal filed by the insurance
company to the said extent.

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6.Shri Patnurkar, the learned counsel

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appearing for the claimant supported the impugned
judgment and submitted that a well reasoned order
has been passed by the Tribunal and no interference
is required in the judgment and award so passed.

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7.I have given due consideration to the

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submissions made by the learned counsel for the
parties. It is not in dispute that age of deceased
Kalayan on the date of accident was 26 years.
Though, the learned counsel has objected to for the
income of deceased as has been held by the Tribunal
to the tune of Rs. 4,500/-, I see no much substance
in the argument so raised. Having regard to the
qualification of the deceased and having regard to
the further fact that he was in the employment as
lecturer may be temporary, the salary of deceased
as has been held by the Tribunal to the tune of Rs.
4,500/- cannot be in any way said to be on higher

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902-FA-107-2004 Judg.odt

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(5)

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side or unreasonable. The objection raised by the
insurance as about non-making the driver as a party
to the present petition, it need not be elaborated
that the law is well settled that the claim
petition cannot be dismissed for non joinder of the
driver as a necessary party. In the circumstances,

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two modifications appear to be necessary in the
impugned judgment and award and the impugned award
needs to be modified to the aforesaid extent.

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8. Considering the proved income of

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deceased Kalayan as has been held by the Tribunal

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to the tune of Rs. 4,500/-, his annual income was

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to the tune of Rs. 54,000/-. In view of the
judgment of the Hon'ble Apex Court in the case of

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“National Insurance Company Limited Vs. Pranay

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Sethi and Ors, (2017) 16 SCC 680”, the future
prospects are to be considered. In view of the

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fact that deceased was not in permanent employment

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but was in the private employment, 40% of his
existing income will have to be added in his
existing income so as to assess the dependency
compensation. Adding the said 40% amount, the
income of deceased for the purposes of calculating

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902-FA-107-2004 Judg.odt

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(6)

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the amount of dependency compensation comes to Rs.

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75,600/-. Out of the said amount 1 ½ of the amount
will have to be deducted towards the personal and
living expenses of deceased since he was a bachelor
on the date of accident. Remaining half of the
amount i.e. Rs. 37,800/- thus can be held to be
available with deceased to be spent on his
dependents. As has come on record, mother was the
only dependent who has filed the claim petition.

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9.Having regard to the age of deceased, the
appropriate multiplier will be of 17. By applying
the said multiplier, the amount of compensation
comes to Rs. 6,42,600/- (Rs.37,800 x 17 =
Rs.6,42,600). In addition to the aforesaid amount,
the claimant also has to be held entitled for
further compensation of Rs. 70,000/- towards non-
pecuniary damages in view of the judgment of the
Hon'ble Apex Court in the case of “National
Insurance Company Limited Vs. Pranay Sethi and Ors,
(2017) 16 SCC 680”. The claimant is thus found
entitled for the total compensation of Rs.
7,12,600/-. In the facts and circumstances of the

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case, it appears to me that this would be the just
and fair compensation payable to the claimant. The

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902-FA-107-2004 Judg.odt

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(7)

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impugned award, therefore, needs to be modified to
the aforesaid extent. Hence the following order:

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ORDER

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i)The award dated 25.09.2003 passed in
Motor Accident Claim Petition No.120 of

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2000 is modified to the extent that the
appellant-insurance company is held

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liable to pay the compensation of Rs.
7,12,600/- to the claimants therein with
interest thereon at the rate of 9% p.a.
from the date of filing of the said
petition till the date of deposit of the
amount by the insurance company in this
Court.

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ii)The award be modified accordingly.
iii)It would be open for the claimants to
withdraw the amount of compensation for
which they are held entitled as per the
modified award with interest accrued on
the said amount from the date of deposit

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of the said amount by the insurance
company in this Court till its actual
withdrawal by the claimants.

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iv)

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The balance amount with interest accrued

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902-FA-107-2004 Judg.odt

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(8)

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thereon be refunded to the appellant-
insurance company.

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 (P.R. BORA, J.)

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Mujaheed//

Oriental Insurance Co. v. Vasudha Balwantrao Joshi and Anr.

Case brief

What is this about?

What did the court decide?

Oriental Insurance Co. v. Vasudha Balwantrao Joshi and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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