The Oriental Insurance Co. Ltd. vs Shakuntalabai Pundlik Dukare

S.B. Shukre, J.—Heard.

This appeal arises out of judgment and award passed by Motor Accident Claim Tribunal, Amravati on 18-4-2012 in MACP No. 99/2008.

The appellant is the original respondent no. 3 and insurer of one Tata Indica car bearing registration no. MH-30-L-8827 involved in the accident. Respondent nos. 1 to 4 are the original claimants. Respondent nos. 5 and 6, respectively, are driver and owner of the said car involved in the accident. Respondent no. 1 is the widow of deceased Pundlikrao, who died in an accident which occurred on 8-1-2008. Respondent nos. 2 to 4 are children of deceased.

Deceased was travelling by auto-rickshaw on 8-1-2008. When the auto-rickshaw reached Village Karajgaon on Amravati-Morshi Road, the said Tata Indica car approached from the opposite direction in high speed and there was a head on collision between the car and auto-rickshaw. Deceased Pundlikrao died on the spot in this accident. Respondent nos. 1 to 4 contended that the accident occurred solely due to rash and negligent driving of said Tata Indica car by respondent no. 5. Therefore, they filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 6,40,000/- jointly and severally from the appellant and respondent nos. 5 and 6.

It appears that the claim petition was not resisted by respondent nos. 5 and 6, but it was contested by the appellant. The appellant denied that the death of Pundlikrao occurred in the accident that was caused by rash and negligent driving of the said Tata Indica car.

After framing several issues and considering the evidence brought on record, the learned Member of the Tribunal found that the accident occurred only due to rash and negligent driving of the said Tata Indica car and therefore, he fastened the liability to pay compensation to respondent nos. 1 to 4 upon the appellant and respondent nos. 5 and 6. Thus, by his impugned judgment and award, the learned Member directed the appellant and respondent nos. 5 and 6 to pay total compensation of Rs. 4,13,500/- to respondent nos. 1 to 4 jointly and severally together with interest.

Not satisfied with the judgment and award particularly, the refusal of the Tribunal to hold any contributory negligence on the part of the driver of auto-rickshaw involved in the accident, the appellant has filed the present appeal. This court, by its order passed on 4-4-2013, had issued notices for final disposal of the matter at the admission stage. Accordingly, I have heard Shri S. N. Dhanagare, learned counsel for the appellant and Shri A. J. Thakkar, learned counsel for respondent nos. 1 to 4. Having regard to their submission, this appeal deserves to be admitted.

Hence admit.

Since, the parties have already been noticed about final hearing, I have heard learned counsel for the appellant and for respondent nos. 1 to 4 finally. Respondent nos. 5 and 6 are absent, though duly served.

Shri Dhanagare, learned counsel for the appellant has forcefully submitted that the accident in this case occurred due to a head on collision between two vehicles and therefore, the owner, driver and insurer of other vehicle i.e. the auto-rickshaw by which deceased was travelling ought to have been joined as necessary parties by respondent nos. 1 to 4 and since there was a failure to do so on their part, the petition was bad for non-joinder of necessary parties and accordingly, it ought to have been rejected by the learned Member of the Tribunal. He further submits that the compensation determined by the Tribunal is also on the higher side as there is no evidence available on record to reasonably arrive at a conclusion that deceased Pundlikrao earned income of Rs. 6,000/- per month. He therefore urges that on these grounds, the impugned judgment and award need to be set aside.

On the other hand, Shri Thakkar, learned counsel for respondent nos. 1 to 4 submits that both these aspects have been well taken care of by the learned Member which can be seen from the issues framed and findings recorded on each of these issues and therefore this appeal deserves to be dismissed with costs.

In view of these rival submissions, the only point which arises for my consideration is :

Whether any interference with the impugned judgment and award is warranted ?

On going through the impugned judgment and award, I find that learned counsel for respondent nos. 1 to 4 is right in his submission that all the aspects as contended by the appellant have been exhaustively dealt with by the learned Member of the Tribunal. It is seen that the learned Member has recorded his findings after considering the entire evidence available on record. His findings are to the effect that it was only the driver of the Tata Indica car involved in the accident, who was responsible for causing of the accident owing to his rash and negligent driving and there was no evidence on record showing that driver of auto-rickshaw negligent. These findings are the result of elaborate discussion of evidence on record and I see neither any perversity nor any illegality in appreciation of evidence by the Tribunal, nor any has been shown to me by learned counsel for the appellant. If there was no rashness or negligence found on the part of auto-rickshaw driver, neither he nor his owner nor his insurer were necessary parties. The learned Member has, therefore, rightly found that the owner, insurer and driver of the auto-rickshaw were not necessary parties and petition was not bad for non-joinder of necessary parties.

Similarly, the learned Member has considered the fact that although there is no specific evidence brought on record by the respondent nos. 1 to 4 about the income earned by deceased Pundlikrao, the learned Member has fixed his monthly income notionally to be at Rs. 6,000/- per month by taking into account the fact, an undisputed one, that deceased Pundlikrao was a skilled labourer. I do not see any error in the assumption drawn by the learned Member that earning of skilled labourer would have to be taken to be double than the earning of an unskilled worker and therefore, fixing of income of deceased at Rs. 6,000/- per month notionally has to be considered as reasonable.

In these circumstances, I see neither any error of fact nor of law warranting any interference with the impugned judgment and award. There is nothing left out by the learned Member which can now be considered by this court. Therefore, this appeal deserves to be dismissed. Point is answered accordingly.

Appeal stands dismissed.

There shall be no order as to costs in the facts and circumstances of this case.

Respondent nos. 1 to 4 are permitted to withdraw the amount deposited in this court.