Ranjana Mitkari & Ors. vs Satish Thorat & Anr.

Heard. ‘Admit’. Heard finally, with the consent of the learned Advocate for the appellants and respondent no. 2 / Insurance Company.

The appellants/original claimants, being dissatisfied with the judgment and award dated 23.08.2022, passed by the learned Member, Motor Accident Claims Tribunal, Osmanabad (for short ‘the Tribunal’), have preferred this appeal.

The facts of the case in brief are as follows.

On 27.06.2017, the deceased Shivhari Baban Mitkari was proceeding towards his land on his motorcycle bearing No. MH-25/W-4999 (for short ‘Motorcycle ') for agricultural work on Osmanabad Ausa Road. At about 9:30 a.m., another motorcycle bearing No. MH-25/AG-7323 (for short ‘offending Motorcycle') came from the opposite direction at high speed, rashly and negligently, and gave a dash to the Motorcycle of the deceased. As such, he fell on the road and sustained grievous multiple injuries and became unconscious. He was taken to Civil Hospital, Osmanabad, where a doctor examined him and declared him dead. The said accident occurred due to the negligent riding of the rider of the offending motorcycle. Accordingly, a crime was registered against the rider of the offending motorcycle at the Osmanabad Police Station, vide Crime No. 211/2017.

The deceased was 34 years old. He had completed the Diploma in Agriculture and was engaged in private service as a plant manager with V.R.D. Agro Producer Company Limited, Sarola (Bk.), was getting Rs. 2 Lakhs per annum.

Claimant No. 1 is the widow, claimant nos. 2 and 3 are minor children, and claimant nos. 4 and 5 are the parents of the deceased. They were depending on him. Due to the death of the deceased, they suffered a lot.

Respondent no. 1 is the owner of the offending motorcycle, and the motorcycle was insured with the respondent no. 2/ insurance company. Therefore, respondents nos. 1 and 2 are jointly and severally liable to pay the compensation. Hence, the claimants have filed the claim petition.

Respondent No. 1, despite the service of summons, remain absent. Hence, the petition proceeded ex-parte against him.

Respondent no. 2 filed a written statement and denied the contents of the petition. It is contended that a false crime was registered against the rider of the offending motorcycle. The police investigation was flawed. It also denied the deceased's age and income. Alternatively, it is contended that the rider of the motorcycle did not hold a valid licence and thereby committed a breach of the terms and conditions of the insurance Policy. Accordingly, he urged dismissal of the petition.

Based on rival pleadings, the learned Tribunal has framed the issues. Pursuant to the issues, claimants have adduced the evidence and produced and proved the documents. However, respondent have not adduced any evidence to prove their defence. The Tribunal, after considering the evidence on record, partly allowed the petition. Being dissatisfied with the same, claimants have preferred this appeal.

Learned Advocate for the appellants vehemently contended that the finding recorded by the learned Tribunal in paragraph no. 21 that the deceased was also held 30 % negligent as he did not wear a helmet at the time of the accident, and, therefore, 30% was deducted towards the contributory negligence. As such, he urged that the said finding is contrary to the settled position of law. Accordingly, he urged that the said finding be set aside in the appeal.

To buttress his submissions, he has relied upon the judgment in the case of Anjana Narayan Kamble and Others Versus Branch Manager, Reliance General Insurance Company Limited and another, AIROnline 2022 SC 1562, and drew my attention to paragraph no. 7 of the judgment and submitted that in view of the law laid down by the Hon’ble Apex Court, the finding recorded by the learned Tribunal is liable to be set aside.

Per contra, learned Advocate for respondent no. 2 / Insurance Company vehemently opposed the same and submitted that the deceased did not wear a helmet and, therefore, he sustained the head injury, and he died in the accident. The documents on record clearly indicate that, as the deceased did not wear a helmet, he sustained a head injury and died on the spot. Therefore, the finding recorded by the learned Tribunal is just and proper.

To substantiate his contention, he has relied on the judgment of this Court in New India Assurance Co. Ltd. Versus Julius T. J. Freitas, AIROnline 2019 Bom 1641, and drew my attention to paragraph nos. 46 and 47 of the said judgment and, therefore, urged for dismissal of the appeal.

Having heard the learned counsel for the respective parties and perusal of the impugned judgment and record, the following points arise for determination :

It is pertinent to note that respondent no. 2 / Insurance Company has not preferred any appeal nor challenged the finding recorded by the learned Tribunal. Thus, it seems that they have no grievance about the finding recorded by the learned tribunal. The appellants are only dissatisfied with the finding to the extent of a 30% deduction of compensation towards contributory negligence and have preferred this appeal.

Perused paragraph no. 21 of the impugned judgment, wherein the learned Tribunal has observed that “on perusal of the panchanama of the scene of offence it reveals that the deceased was not wearing the helmet. Hence, 30% has to be deducted towards the contributory negligence” and accordingly, he has deducted the same.

It is pertinent to note that respondent no. 2 has not adduced any evidence to show that he was negligent while riding the vehicle; it has only come on record that he did not wear a helmet at the time of the accident. In my view, the reason recorded by the tribunal is insufficient. Undisputedly, it is not the cause of the accident. It cannot be said that the failure to wear a helmet contributed to the accident. Safety measures for motorcycle riders are mandatory and must be complied with; failure to do so may result in penalties under various provisions of the Motor Vehicles Act. Still, it alone cannot constitute negligence in causing an accident under Section 166 of the Motor Vehicles Act. I am of the view that the finding recorded by the learned Tribunal is perverse and contrary to the settled position of law and liable to be set aside.

Apart from that, I have gone through the judgment. It is pertinent to note that the Hon’ble Apex Court in Anjana Narayan Kamble (supra) has categorically held that in view of the enunciation of law, it was not justified in deducting 30% of the amount of compensation assessed by the Tribunal for the reason that the deceased was riding the motorcycle triple seat and was not wearing a helmet. The violation of rules for driving the motor vehicle is not a ground to deduct the amount of compensation awarded, unless there is proof that either the accident could have been averted, or the impact could have been minimised. Therefore, it is held that the deduction of 30% by the High Court was unjustified.

I have gone through the judgment in New India Assurance Co. Ltd. (supra), paragraph nos. 46 and 47. However, in my opinion, in view of the judgment of this Court, the finding recorded in the aforesaid judgment is hardly of assistance to the learned Advocate for respondent no. 2, in support of his contention. Moreover, in the said judgment, nothing was discussed regarding how the deceased was held to be 30% contributarily negligent.

Secondly, the learned Advocate for respondent no. 2 has argued that the learned Tribunal has erred in considering the income of the deceased as Rs. 18,635/-, i.e. from service and from agricultural income Rs. 3,635/- per month. Therefore, he submitted that the said finding is improper and incorrect. However, it is pertinent to note that respondent no. 2 has not challenged the judgment and order, more particularly the findings, before this Court. Therefore, on that ground, respondent no. 2 is not entitled to raise the said ground. Apart from that, respondent no. 2 has not adduced any evidence to show that it is difficult for the person who is in service to earn from the agricultural land. In the absence of such defence evidence, I am not inclined to accept the submission made by the learned Advocate for respondent no. 2 that the finding recorded by the learned Judge about the income of the deceased is incorrect. On the contrary, it appears that the claimants have produced the 7/12 extract of Gat No. 131/1 of Village Sarola, on record, which indicates that the deceased owned 1 Hector 71R of land. Besides, even if I have considered that due to the death of the deceased, the family members have suffered for the loss of income towards the appointment of the Manager, then also, I do not find substance in his contention in that regard that the learned Tribunal has erred in considering the income of Rs. 18,635/- per month.

Lastly, the learned Advocate for respondent no. 2 submitted that in paragraph no. 20, the learned Tribunal has erred in deducting 1/5th towards the personal expenses instead of 1/4th as laid down in Smt. Sarla Varma and Others Versus Delhi Transport Corporation and another, AIR 2009 SC 3104 and National Insurance Company Ltd. Versus Pranay Sethi and Others, (2017) 16 SCC 680. On the contrary, the learned Advocate for the appellants does not dispute the same and also does not dispute that the 1/4^th of the amount is required to be deducted towards the personal expenses of the deceased.

Having considered the same, in my view, the finding recorded in paragraph 20 needs to be corrected as the learned Tribunal has erred in deducting 1/5^th amount towards personal expenses of the deceased instead of 1/4^th. Accordingly, the said finding is corrected to the extent of deducting the amount for his personal expenses.

To sum up the above discussion, it appears that the finding recorded by the learned Tribunal in paragraph no. 21, about the deduction of 30% amount towards contributory negligence, is liable to be set aside, and to that extent, interference is required in the appeal. Hence, I answer point nos. (i) and (ii) in the affirmative. It has come to my notice that the learned Tribunal has deducted 1/5 of the amount towards the personal expenses of the deceased, rather than 1/4^th. The same is liable to be corrected in the First Appeal.

In view of the above discussion and mandate laid down in Smt. Sarla Varma (surpa) and Pranay Sethi (supra), it would be appropriate to determine the compensation entitled by the claimants as under :

Thus, I hold that claimants are entitled to receive an amount of Rs. 40,35,110/- with accrued interest at the rate of 8 % per annum.

As a result, the First Appeal is allowed. The impugned judgment and award dated 23.08.2022, passed by the learned Member, Motor Accident Claim Tribunal, Osmanabad, is hereby modified as under :