Partly allowed

The Branch Manager, Oriental Insurance Co.Ltd., Nagpur Divisional Office-Iii Thr. the Regional Man. v. Pundlikrao S/O Babarao Tayade and 2 Others

Bombay HC9 Sept 2021FA/306/2014

Case brief

AI extract

What is this about?

Insurance company appeals against compensation awarded for fatal motor accident. Court dismissed appeal on vehicle identification and policy breach but modified award due to wrong multiplier used by Tribunal, directing insured to pay enhanced amount.

What did the court decide?

Appeals dismissed but compensation award modified; Insurance company directed to pay enhanced compensation using multiplier 16.

The Branch Manager, Oriental Insurance Co.Ltd., Nagpur… — Motor Accident Claims | Bombay HC (2021)

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FA-306.14 with FA 4.14.doc

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BDP-SPS-TAC

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR FIRST APPEAL NO. 306 OF 2014

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The Branch Manager, ) Oriental Insurance Co. Ltd., ) Nagpur Divisional Ofce-III ) through the Regional Manager ) T.P. Hub, Shukla Bhavan, ) Dharampeth, Nagpur ) … Appellant.

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V/s

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1] Pundlikrao S/o Babaro Tayade,) Aged about 55 years, ) Occ: Cultivator. ) ) 2] Sumanbai w/o Pundlikrao ) Tayade, Aged about 50 years, ) Occu. Household, R/o at Post : ) Poha, Tah. Karanja Lad, District ) Washim. ) ) 3] J.K. Transport Corporation ) R/o Plot No.214, Transport Nagar,) Bhandara Road, Nagpur. ) …. Respondents.

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WITH FIRST APPEAL NO. 4 OF 2014

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The Branch Manager, ) Oriental Insurance Co. Ltd., ) Nagpur Divisional Ofce-III ) through the Regional Manager ) T.P. Hub, Shukla Bhavan, ) Dharampeth, Nagpur ) … Appellant. V/s

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FA-306.14 with FA 4.14.doc

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1] Smt. Kalpana wd/o Tarasingh ) Rathod aged 35 years, Occ: ) Householod. ) ) 2] Ashish s/o Tarasingh Rathod, ) aged 13 years, Occ: Student, ) ) 3] Ujwala d/o Tarasingh Rathod, ) aged 10 years, Occ. Student, ) ) 4] Laxmanrao s/o Tukaram ) Rathod, aged 65 years, Occ: Nil ) ) 5] Ukadi w/o Laxmanrao Rathod ) [Respondent No.5 deleted as ) per order dated 03/03/2017] ) Respondent Nos. 2 and 3 minor ) through their mother and ) natural guardian, respondent ) No.1. ) All r/o Gajanan Society, Datta ) Wadi, Nagpur. ) ) 6] J.K. Transport Corporation ) r/o Plot No.214, Transport Nagar) Bhandara Road, Nagpur ) …...Respondents.

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Shri D.N. Kukday, Advocate for the Appellant in both the above appeals.

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Mr. B.S. Mandhre h/f Mr. P.S. Mirache for Respondent Nos. 1 and 2.

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CORAM: NITIN W. SAMBRE, J.

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DATE: SEPTEMBER 09, 2021

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JUDGMENT:

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1] Both these appeals are by the Insurance Company questioning award of compensation under Section 166 of the

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FA-306.14 with FA 4.14.doc

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Motor Vehicles Act.

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2] Since both these appeals are arising out of the same accident, they are tagged and fnally heard together by consent. For the sake of convenience, facts in First Appeal No.306 of 2014 are taken into account.

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3] Claimant’s son Vilas, while travelling on Bajaj Boxer C.T. motor-cycle bearing registration No. MH40/D/783 as a pillion rider, died in an accident with Truck Trailer bearing registration No. HR38/C/7644 which dashed it from wrong side. Against the driver of the ofending Trailer, Crime No.145 of 2005 was registered. Claimant alleged that deceased son Vilas was of 35 years of age and was earning around Rs 5,500/- per month.

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4] The claim was resisted by the Appellant who has denied its liability to pay the compensation. According to the Insurance Company, involvement of the Truck Trailer was disputed. It has also denied issuance of policy to the Truck as it is claimed that ofending Truck Trailer bearing registration No. MH-38-C-7644 is not insured with it.

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FA-306.14 with FA 4.14.doc

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5] The Tribunal, after analysing the contentions, has awarded compensation which is questioned by the Appellant/Insurance Company on the ground that Tribunal erred in identifying the ofending vehicle. Appellant has specifcally pleaded that Tribunal should have rejected the claim, as the ofending vehicle recorded in the police record is MH-38-C-7644 and not HR38/C/7644.

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6] I have appreciated the aforesaid contentions.

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7] Claimant Pundalikrao, father of deceased Vilas, examined himself at Exhibit-25 and has placed reliance on Form-AA at Exhibit-33, FIR at Exhibit-34 Crime details of ofence No.145 of 2005 which is registered against the driver of the ofending vehicle at Exhibit-35, Inquest Panchanama at Exhibit-36 and Postmortem Report at Exhibit-37.

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8] It appears that Claimant has deposed that his son was a pillion rider of motor-cycle bearing registration No. MH40/D/783 which was dashed from wrong side by driver of the Truck Trailer bearing registration No. HR38/C/7644.

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9] Form-AA which is issued in regard to report of the motor-

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FA-306.14 with FA 4.14.doc

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cycle accident under the Motor Vehicle Rules in categorical terms speaks about involvement of Vehicle bearing registration No. HR38/C/7644.

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10] Even if the Appellant has come out with the case of wrong identifcation of the vehicle, it has failed to produce on record policy of the vehicle with registration No. HR38/C/7644 and MH-38-C-7644. Claimant has produced policy of the vehicle bearing registration No. HR38/C/7644 at Exhibit-38. Apart from above, Appellant has examined two witnesses to prove the breach of policy condition. However, witnesses who were examined at Exhibits-64 and 68 could not establish that Form-AA contained wrong information or vehicle bearing registration No.HR38/C/7644 was not involved in the accident. In the FIR at Exhibit-34, it is specifcally mentioned that vehicle is bearing registration No. HR38/C/7644. As such, Tribunal was justifed in holding that driver of the ofending vehicle i.e. Truck Trailer bearing registration No.HR38/C/7644 was negligent. Evidence of R.W.1- Rajani could not withstand the stand taken by the Appellant that driver of the ofending vehicle was not holding valid driving license. It could not be proved that Exhibit-39 i.e. license of driver of the ofending vehicle was a fake document. Having appreciated testimony of

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FA-306.14 with FA 4.14.doc

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both these witnesses, I do not see any reason to accept the case of the Appellant that it has established breach of the policy.

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11] In the aforesaid backdrop, I see no reason which warrants interference in the judgment impugned. As such, both these appeals fail and same stand dismissed.

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12] At this stage, learned Counsel for the Respondent/Claimant invited my attention to the wrong multiplier applied in para 23 of the judgment impugned. He would claim that since age of the deceased was 35 years, the correct multiplier should have been 16. So as to substantiate his contention, he has drawn support from the Schedule attached to the Motor Vehicles Act. Though Mr. Kukday, learned Counsel for the Appellant has tried to dispute the same, from the available testimony of the Claimant, it is apparent that Vilas was unmarried and at the time of his death as refected in Postmortem Report and other documents his age was 35 years. That being so, Tribunal erred in awarding compensation by applying multiplier of 11 instead of 16. In that view of the matter, award needs to be modifed in favour of the Claimant.

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FA-306.14 with FA 4.14.doc

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13] Apart from above, Claimant will be entitled for loss of future prospects @ 40%, loss of Estate of Rs 15,000/-, funeral expenses of Rs 15,000/- and consortium of Rs 40,000/- each i.e. Rs 80,000/-. As such, deposit needs to be calculated on the above basis to be paid to the Claimant.

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14] Let the entire amount of deposit lying in this Court be forthwith sent to the Claims Tribunal so as to enable the Claimant to withdraw the same.

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15] Appellant/Insurance Company is directed to pay the Respondent/Claimant entire compensation with accrued interest by calculating the same by using the multiplier as 16 instead of 11 and deposit the said amount before the Claims Tribunal in any case within a period of 10 weeks from today. In view of dismissal of appeals of the Appellant, Claimant is entitled to withdraw the amount of compensation.

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( NITIN W. SAMBRE, J. )

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The Branch Manager, Oriental Insurance Co.Ltd., Nagpur Divisional Office-Iii Thr. the Regional Man. v. Pundlikrao S/O Babarao Tayade and 2 Others

Case brief

What is this about?

What did the court decide?

The Branch Manager, Oriental Insurance Co.Ltd., Nagpur Divisional Office-Iii Thr. the Regional Man. v. Pundlikrao S/O Babarao Tayade and 2 Others

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

Coram

Case details

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