United India Insurance Company Ltd. vs Ruksana Sheikh & Ors.

Heard learned Advocates for respective parties.

By way of instant appeal, the appellant Insurance Company is challenging the judgment and award dated 29.03.2012, passed by learned Motor Accident Claims Tribunal-3, Nagpur (for short, “the Tribunal”), in M.A.C.P. No.321 of 2008, wherein the claim petition filed by respondent Nos.1 to 4 is partly allowed and learned Tribunal has directed the appellant Insurance Company to pay the compensation of Rs.2,79,000/- to respondent Nos.1 to 4 at the rate of 7.5% per annum from the date of petition till its realization.

Advocate Mr. Chatterje holding for Mr. Lahiri, learned Advocate for the appellant Insurance Company submitted that the learned Tribunal has committed grave error in law and thereby, holding the appellant liable to pay the compensation and then recover the same from the owner of offending vehicle. He submitted that on 18.03.2008, deceased Muzffar @ Munna S/o. Bashir Sheikh, was walking at the side of road. At that time, near Mouza Gondkhari Shiwar, National Highway No.6, a tanker bearing registration No. MH-34-M-3761 came from Nagpur in rash and negligent manner and gave dash to the deceased. Due to which, he sustained injuries and died on the spot. He submitted that the legal heirs of deceased Muzaffar i.e. respondent Nos.1 to 4 had filed claim petition and claimed that the age of deceased at the time of accident was 50 years old and he was doing job of driver and earning Rs.6,000/- per month.

Mr. Chatterji, learned Advocate for the appellant Insurance Company submitted that the basic ground raised by the appellant is in respect of fundamental breach of policy. He submitted that the learned Tribunal erred by not considering the fact that the appellant Insurance Company has no liability at all to indemnify the deceased for breach of policy committed by the insured vehicle. He submitted that the driver of offending vehicle bearing registration No. MH-34-M-3761, was not holding valid and effective driving licence on the date of accident. The driving licence filed on record is fake. He submitted that the appellant Insurance company, to prove their contentions, examined witness viz. Mr. Rajesh Patil, who is Junior Clerk at R.T.O. Yavatmal. He submitted that Mr. Rajesh Patil, in his evidence, stated that driving licence at Exhibit 29 bearing No. MH29/20070094894, is not issued by their office and it is fake one. He submitted that the learned Tribunal has held that the copy of driving licence is false and fake one and on the date of accident, the driver of the offending of the vehicle was not holding valid and effective driving licence. Thus, there is breach of policy condition. As such, the appellant Insurance company cannot be compelled to pay the compensation and recover the same from the owner.

Per contra, Mr. Ghatole, learned Advocate for respondent Nos.1 to 4/claimants submitted that the judgment and award passed by the learned Tribunal is correct and proper requires no interference. He submitted that the award passed by the learned Tribunal directing the Insurance Company to pay the compensation amount to the claimants is fall under the doctrine of “pay and recover”, wherein the appellant Insurance Company may recover the same from the owner of offending vehicle. He relied on judgment of the Hon’ble Supreme Court in the case of Shamanna and Another Vs. Divisional Manager, Oriental Insurance Co. Ltd. and Others, reported in 2018(3) T.A.C. 677 (SC). Mr. Ghatole, therefore, submitted that the findings recorded by the learned Tribunal in respect of amount of compensation to be paid by the appellant Insurance Company are well reasoned and no interference is required in the impugned judgment and award. Hence, he submitted that the appeal is devoid of merits and liable to be dismissed.

Mr. Ghatole, learned Advocate for respondent Nos.1 to 4/claimants further submitted that the compensation awarded by the learned Tribunal is very much less and cannot withstand as per the judgment delivered by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680. He submitted that even in the absence of a separate appeal or a cross-objection on behalf of the said respondents, this Court could enhance the compensation on the basis of material on record. In support of his submission, he relied on judgment of this Court in the case of Cholamandalam MS General Insurance Co. Ltd. Vs. Sumitra and Others, reported in 2018(2) T.A.C. 408 Bom, wherein this Court had considered the contentions of the learned Advocate for the claimants therein about the absence of cross appeal or cross objection and granted enhancement of compensation.

After hearing learned Advocates for the parties and going through the record, it reveals that the learned Tribunal has considered the evidence adduced by the appellant Insurance Company, in respect of non-holding of valid driving license by the driver of the offending vehicle. The appellant Insurance Company has examined witness Mr. Rajesh Patil, Junior Clerk, RTO Yavatmal. Witness Mr. Rajesh Patil, stated that the driving license at Exhibit 29 bearing No. MH29/20070094894 is not issued by their office. Learned Tribunal has held that the said driving license is false and fake. However, learned Tribunal has concluded that despite the driver of the offending vehicle was not holding valid and effective driving license, the appellant Insurance Company is responsible to pay the compensation amount to the claimants and then recover from the owner of the vehicle.

In the case of Shamanna (Supra), the Hon’ble Supreme held that since the reference to the larger bench in Pavathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and Others hold the field. The Hon’ble Supreme Court further held that the award passed by the Tribunal directing the Insurance Company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Sing and Laxmi Narain cases. While so, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. In view of this, no perversity is seen in the impugned judgment and award passed by the Tribunal. Hence, the appeal deserves to be dismissed.

As regards the issue of enhancement of compensation, learned Advocate for respondent Nos.1 to 4/claimants submitted that the deceased was earning Rs.6,000/- per month. However, the learned Tribunal has fixed the income of Rs.3,000/- per month. He submitted that the income of the deceased, after deduction, has to be considered at the rate of Rs.5,000/- per month. He submitted that the compensation granted by the learned Tribunal is meager and they are entitled to receive the compensation as per the judgments delivered by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680 and Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, reported in 2009 (4) ALL MR 429.

Though the respondents/claimants has not filed any appeal or cross-objection for enhancement of compensation, however, as per the judgment of Cholamandalam MS General Insurance Co. Ltd. (Supra), this Court could enhance the compensation on the basis of material on record. As far as the quantum of compensation is concerned, it is the claim of the appellants that the deceased was working as a driver and earning Rs.6,000/- per month. In absence of any material evidence to prove the income of deceased, the learned Tribunal has fixed the income at Rs.3,000/- per month. The same is meagre amount. The accident is of the year 2008. Naturally, the driver in the same year were earning more than Rs.8,000/- per month in the district where deceased was employed. However, after deductions, income of Rs.5,000/- per month is reasonable and can be considered without hesitation. Therefore, the income of the deceased is fixed at Rs.5,000/- per month. The respondents/claimants claimed that at the time of accident, deceased was 50 years old. Learned Tribunal, in its judgment and award, has observed that the respondents have not adduced any corroborative piece of evidence in respect of age of deceased and considering the P.M. report at Exhibit 32, held that the age of deceased may be in between 50 to 55 at the time of accident. The reasons recorded by the learned Tribunal as regards the age of deceased is proper and no interference is required. Therefore, the age of deceased has to be considered as 50 years old.

In view of the above, compensation amount is required to be calculated in terms of Pranay Sethi (Supra) and Smt. Sarla Verma (Supra). In addition, the claimants will be entitled for loss of estate, funeral expenses and loss of consortium. By considering the said amount, the following calculations are being made.

Hence, in view of the above discussions, respondent Nos.1 to 4/claimants are entitled to receive an amount of Rs.7,11,150/- by way of enhanced compensation. The said amount along with interest be deposited in this Court within a period of six months from today. After the amount is deposited, the claimants will be entitled to withdraw the same.

The instant appeal is disposed of in aforesaid terms with no order as to costs.

Pending applications, if any, also stand disposed of.