The New India Assurance Co. Ltd. vs Sau. Ashabai Prakash Deshmukh & Ors.

The Judgment and Award dated 08.05.2018 passed in M.A.C.P. No. 250 of 2013 has been taken exception both by the insurer as well as claimants.

It is the case of the insurer that the Tribunal has committed error in accepting the contributory negligence of the deceased in the occurrence of the accident only to the extent of 25% which should be 50%, since deceased was not wearing helmet and was driving motorcycle along with two pillion riders. It is also claimed by the insurer that the Tribunal has erred in accepting the income of the deceased, so also by applying the future prospects at 50% when there is evidence on record to indicate that the deceased has obtained Shop Act Licence and was into business.

The claimant seeks enhancement on the ground that the Tribunal has not framed issue of contributory negligence of the deceased in the occurrence of the accident and as such it was not open for the Tribunal to record any findings in this regard. Similarly ,enhancement is sought on the ground of non payment of consortium to the claimant.

Learned counsel for the insurer submits that on the basis of the evidence available on record before the Tribunal it can be said that the deceased was riding the said motorcycle without wearing helmet so also with the two persons on the motorcycle. It is his submission that this evidence itself is sufficient to hold that he has contributed in the occurrence of the accident to the extent of 50%. It is further submitted that there is evidence on record to show that deceased had obtained the Shop Act Licence which according to him indicates deceased was not intending to continue with the employment and in such circumstances the Tribunal has committed error in granting future prospects to the extent of 50%.

Learned counsel for the claimant submits that since the issue of contributory negligence was not framed, the findings recorded to that extent are not sustainable. Without prejudice to this submission, it is argued by relying on the Judgment of Hon’ble Supreme Court in the case of Anjana Narayan Kamble and Ors. Vs. Branch Manager, Reliance General Ins. Co. Ltd. And Anr.^{11.2023 ACJ 346}, that the violation of traffic rules is no ground to hold negligence unless there is evidence that either the accident could have been averted or the impact could have been minimised. It is submitted that there is absolutely no evidence on record to hold so. He also seeks enhancement by grant of consortium to the claimants.

No doubt the insurer in the written statement has alleged entire negligence on the part of the rider of the motorcycle in occurrence of the accident. However, the Tribunal has not framed any issue in this regard. In absence of framing of any issue with regard to the contributory negligence, the claimant is deprive of meeting with such issue and to lead appropriate evidence. In any case, unless there is evidence to indicate that the deceased has contributed in the occurrence of the accident for the reason that on account of riding the motorcycle with two pillion riders, he could not control the vehicle or any other similar evidence to indicate so. Perusal of the police papers do not indicate any such contributions on the part of the deceased in the occurrence of the accident.

In the Judgment of Hon’ble Supreme Court in the case of Anjana Narayan Kamble (supra) has held in the similar facts that merely because the deceased was not wearing a helmet or was riding the motorcycle with two other pillion riders is not ground to hold him negligent for the occurrence of the accident unless there is evidence to show that the accident could have been averted or the impact could have been minimised. For want of any evidence to hold so, this Court finds no justification in the findings recorded by the Tribunal holding deceased negligent to the extent of 25%. The order impugned therefore deserves interference to that extent. It is held that the driver of offending vehicle was solely responsible for causing of accident.

As far as the employment and the income of the deceased is concerned, the claimants apart from the evidence of claimant No.1 led evidence of the employer Sandip Suryawanshi at Exhibit-39. This witness categorically states about deceased working with the company as a Designed Engineer from April-2012 till November 2012. The accident had occurred on 27.11.2012 in which he died and therefore till death he was working. He has also placed on record the evidence indicating the payment of salary of Rs.35,000/- to the deceased. He also placed on record Form -16. This evidence is more than sufficient to hold that the deceased was employed and was earning salary as claimed by the claimant.

As far as the obtainment of the Shop Act Licence by the deceased, there is no cross examination conducted of the claimant to indicate that the deceased was intending to quit the employment and conduct the business. From obtainment of Shop Act licence it cannot be assumed that he wanted to leave employment and start business. Such presumption is not permissible, sans any evidence to indicate so. In such circumstances, 50% future income granted by the Tribunal can not be faulted with.

The Tribunal however has failed to grant consortium to the claimant and the same deserves to be directed to be paid. In view of above, following order: