Dismissed

The New India Assurance Company Ltd. Thr. Divsnl Manager, Amravati v. Smt. Lalita Wd/O Vasanta Pawar and 5 Otrs

Bombay HC17 Sept 2021FA/117/2009

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeal against the Motor Accident Claims Tribunal's award. The court held the insurer failed to prove breach of policy terms and ordered the Tribunal to deposit enhanced compensation for loss of love, affection, consortium, and funeral expenses.

What did the court decide?

Appeal dismissed; counter claim for enhanced compensation allowed; directed to deposit enhanced amounts including Rs. 1,00,000 for loss of love and affection.

The New India Assurance Company Ltd. Thr. Divsnl… — Motor Accident Claims | Bombay HC (2021)

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FA117.09-J.doc-Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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FIRST APPEAL NO. 117 OF 2009

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APPELLANT :-	The New India Assurance
	Company
Original Respondent	Limited, Through its Divisional Manager,
No.3 on R.A.	Branch at : Volcut Compound, Amravati, Tq.and Dist. Amravati. ...VERSUS ...
RESPONDENTS :- 1.	Smt. Lalita Wd/oVasanta Pawar, Aged
Nos.1 and 4 Original	about 24 years, Occupation : Service,
Petitioners and
Nos.5 to 6 Original	2. Ms Swakshi D/o Vasanta Pawar -Deleted
respondent Nos.1
and 2 on R.A. 3.	Suman W/o Shamrao Pawar, Aged about 47 years,
4.	Shamrao S/o Marku Pawar, aged about 50 years,
	Respondent Nos.1 to 4 all resident
	of Paloti, Tq. Babhulgaon, Dist. Yavatmal.
5.	Raju S/o Shamrao Pawar, Aged
	about 30 years, R/o. Nadura, Tq. Babhulgaon, Dist. Yavatmal.
6.	Vilas S/o L. Surdose, R/o Kotamba,

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Tq. Babhulgaon, Dist. Yavatmal.

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Mr. B. P. Bhatt, counsel for the appellant. Mr. B.D.Vora, counsel for respondent Nos.1, 3 and 4. None appears for respondent Nos.5 and 6.

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CORAM : NITIN W. SAMBRE, J. DATE : 17.09.2021

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J U D G M E N T

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This appeal is under section 173 of the Motor Vehicles Act, 1988 questioning the judgment delivered by Motor Accident Claims Tribunal, Yavatmal in Claim Petition No.105 of 2004 decided on 4^th August, 2008 under Section 166 of the Motor Vehicles Act, 1988.

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Heard Shri Bhatt, learned counsel for the appellantInsurance Company and Shri Bharat Vora, learned counsel appearing for the claimant-respondents. The respondent No.6 to the appeal, registered owner of the tractor bearing registration No.MH-29 C-2439 and trolley bearing No.MH-29 C-5129, with whom Deceased Vasanta was working as a daily wager (collie) was insured with

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the appellant. Since the respondent No.5-driver drove the said tractor trolley in rash and negligent manner, an accident occurred on 27/10/2004 in which Vasanta lost his life. As such respondent-claimants preferred claim petition in the capacity of dependents.

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Shri Bhatt, learned counsel for the appellantInsurance Company with whom the trolley was insured, would claim that the order of payment of compensation is contrary to the evidence and pleadings on record as the appellant-Insurance Company in the written statement at Exhibit-14 has come out with a plea of breach of policy conditions. He would claim that though the ofending vehicle was insured for agricultural purpose, same was used for business/ commercial purpose. So as to substantiate the said contention Mr.Bhatt would invite attention of this Court to the papers produced by the claimants-respondents on record so as to support the claim petition.

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While countering the aforesaid submissions, the learned counsel for the claimants-respondents would urge that the appellant has failed to establish the plea of breach of policy as burden to that efect is not discharged by adducing evidence.

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It is also claimed that the appellant is liable to pay extra compensation through a counter claim orally raised, based on the law laid down by the Hon’ble Apex Court in the matter of National Insurance Company Limited v. Pranay Sethi , reported in 2017 SCC OnLine SC 1270 and also the judgment of Hon’ble Apex Court in the matter of Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram , reported in 2018 AIR (SC) 892 . As such, he sought dismissal of the appeal and allowing the counter claim thereby granting loss of love and afection, consortium, loss of estate and funeral expenses.

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Appreciated the submissions.

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FA117.09-J.doc-Judgment

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The respondent Nos.5 and 6 to the appeal have admitted about the event of accident, the employment of deceased Vasanta and his death. That being so, the issue of accident and the employer and employee relationship was duly proved. The written statement of respondent No.5-driver at Exhibit-19 and that of owner at Exhibit-17 establishes the said fact.

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The appellant-Insurance Company in the written statement at Exhibit-14 has denied the entire claim and alleged that at the time of accident, the vehicle insured was used for commercial/ business purpose even though it was having insurance for agricultural purpose.

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In the aforesaid background, the issues were framed at Exhibit-21 and the fndings were recorded as against the present appellant.

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So as to substantiate the claim the respondentsclaimants have relied on the police papers while

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examining herself (respondent No.1) at Exhibit-28. The claimant has specifcally deposed that the deceased was survived by wife, daughter and parents, who were completely dependent on the earnings of deceased, who was getting monthly wages of about Rs.3,000/- per month at the age of 25 years.

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The FIR in the accident is produced at Exhibit-29, spot panchnama at Exhibit-30, inquest panchnama at Exhibit-31, postmortem report at Exhibit-32, Form-AA at Exhibit-33 and insurance policy at Exhibit-34. In addition entire charge-sheet was produced on record wherein the driver of the ofending tractor trolley was prosecuted at Exhibit-35 (charge-sheet).

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The claimants at the behest of the appellant was not subjected to detail cross-examination, however, was given only suggestion as to that she was deposing falsely.

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Since the present appellant vide written statement

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at Exhibit-14 has come out with a case of breach of insurance policy, it was for the appellant to prove the same. The fact remains that the appellant so as to establish the claim of breach of policy has neither examined any witness nor brought on record any documents. Rather from the testimony of the claimant, it was established that the deceased died in the accident after having sufered shock due to fracture to cervical vertebra with contusion to lungs and perinephric hematoma.

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In the aforesaid background, the claim of the appellant that there was a breach of policy conditions cannot be inferred as the appellant has neither crossexamined the claimant to that efect nor established such a case.

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In the said background, the award of compensation in favour of the claimants-respondents, after having considered the age of deceased 24 years and monthly

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income of Rs.3,000/- and appropriate deduction to the extent of 1/4^th is very much justifed. No illegality could be noticed, as such the appeal of the insurance company fails and stands dismissed.

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Mr. Vora, learned counsel for the claimantsrespondents based on the judgment of Hon’ble Apex Court in the matter of National Insurance Co. Ltd. v. Pranay Sethi (cited supra) has sought enhancement viz. loss of love and afection at the rate of Rs.1,00,000/-, loss of consortium at the rate of Rs.25,000/-, funeral expenses of Rs.2,000/- and loss of estate of Rs.15,000/-. Since the said claim is based on the fndings of the Hon’ble Apex Court recorded in both the aforesaid judgments i.e. National Insurance Co Ltd v. Pranay Sethi and Magma General Insurance Co Ltd v. Nanu Ram Alias Chuhru Ram (cited supra), the counter claim in my opinion needs to be allowed.

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The claimants-respondents in my opinion, are

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entitled for enhanced compensation i.e. Rs.1,00,000/towards loss of love and afection, Rs.25,000/- towards loss of consortium, Rs.2,000/- towards loss of estate and Rs.15,000/- towards funeral expenses.

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Let the aforesaid enhanced amount of compensation with accrued proportionate interest shall be deposited before the Claims Tribunal at Yavatmal within a period of 10 (ten) weeks from today.

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The entire amount of compensation lying in this Court with accrued interest thereon be forthwith remitted to the Claims Tribunal, Yavatmal so that the Tribunal can deal with the disbursement of the same, in accordance with law.

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JUDGE

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KHUNTE

The New India Assurance Company Ltd. Thr. Divsnl Manager, Amravati v. Smt. Lalita Wd/O Vasanta Pawar and 5 Otrs

Case brief

What is this about?

What did the court decide?

The New India Assurance Company Ltd. Thr. Divsnl Manager, Amravati v. Smt. Lalita Wd/O Vasanta Pawar and 5 Otrs

Case brief

What is this about?

What did the court decide?

What the court decided

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