First Appeal No.1991 of 2011 with Civil Application No.4708 of 2016. Case: New India Assurance Co. Ltd. Vs Smt. Seema Sudam Auti & Ors.. Bombay High Court

Case Number:First Appeal No.1991 of 2011 with Civil Application No.4708 of 2016
Party Name:New India Assurance Co. Ltd. Vs Smt. Seema Sudam Auti & Ors.
Counsel:For Appellant: Ms. Poonam Mital, Adv. and For Respondents: Mr. Avinash Mukund Gokhale, Adv.
Judges:M. S. Sonak, J.
Issue:Code of Civil Procedure, 1908 - Order 41 Rule 33
Judgement Date:June 09, 2017
Court:Bombay High Court
 
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Judgment:

  1. Heard Ms.Poonam Mital for the appellantInsurance Company and Mr.Avinash Gokhale for respondent Nos.1 to 4original claimants before the Motor Accident Claim Tribunal (MACT).

  2. The appellant, appeals against the judgment and award dated 29th April 2011 made by the MACT awarding the respondentsclaimants compensation of Rs.71,36,917/- together with interest at the rate of 7% per annum from the date of the institution of the claim petition till realization of the amount.

  3. The claim instituted by respondent Nos. 1 to 4 (claimants) arose on account of the demise of Sudam Auti on 25th May 2006 in the accident between Maruti Alto Car (Alto) which he was driving and Tempo bearing registration No.MH01/ H7008 (Tempo) at Rajuri Village, AhmednagarKalyan Road. The collision between Tempo and Alto resulted in the death of Sudam on the spot and injuries to the two other occupants in the Alto. Sudam was 46 years old at the time of his unfortunate demise in the accident. He was working as Manager in Patalganga Plant of Reliance Industries and drawing monthly salary of Rs.52,000/- apart from several other perquisites. The MACT, by the impugned award, has directed the owner and insurer of the Tempo to pay compensation of Rs.71,36,917/-(excluding amount of Rs.50,000/- towards no fault liability) together with interest at the rate of 7% per annum from the date of the claim petition till realization. Aggrieved by the impugned judgment and award, the appellant Insurance Company has instituted the present appeal.

  4. Ms.Mital, learned counsel for the appellant, submits that this was a case of head on collision between two motor vehicles on a broad wide road. She submits that the material on record makes out a case of contributory negligence on the part of deceased Sudam, who was driving Alto. She submits that the material on record establishes that Alto was overloaded and being driven in a rash and negligent manner. She submits that the evidence on record establishes that Sudam was speaking on mobile phone and driving the Alto with only one hand to control the steering. She, therefore, submits that the compensation awarded, which is even otherwise very excessive, is required to be scaled down by at least 50%, since, the deceased Sudam, contributed to the accident to the extent of 50%. On the aspect of contributory negligence. Ms.Mital, has placed reliance upon the following decisions:-

    (i) Kunjamma Mathai V/s. Marcelo Fernandes & Ors. 1996 ACJ 866;

    (ii) Smt.Ushakiran Shridhar Shinde & Ors. V/s. Arunkumar Kisanlal Kalal & Ors. 2001 (4) ALL M.R. 21;

    (iii) New India Assurance Co. Ltd. & Anr. V/s. Kamalbai & Ors. 1994 ACJ 519; and

    (iv) Anand Ramkrishna Raikar & Ors V/s. Raghunath V. Keny & Anr. 1996 ACJ 697.

  5. Ms.Mital, without prejudice to the aforesaid, submits that the compensation awarded by the MACT is excessive and contrary to the well settled principles. She submits that the evidence on record, at the highest, suggest that the total income of Sudam was Rs.5,25,910/- per annum and the MACT has erred in treating such annual income at Rs.7,46,592/-. She submits that from out of the annual income of Rs.5,25,910/-, an amount of Rs.1,09,928/- was required to be deducted towards income tax. She submits that the amount of annual income includes certain perquisite, which were exclusive to Sudam and therefore, some suitable deductions are warranted from annual income. She submits that the net income of Sudam on the basis of evidence on record, cannot exceed Rs.4 lakhs per annum. She submits that the MACT, has grossly erred in taking the annual income of Sudam at Rs.8,24,413/- and determining the compensation on the said basis. She submits that even on this score the compensation awarded by the MACT is required to be reduced to Rs.35 lakhs in place of Rs.71,86,917/- as determined by the MACT. She submits that no proper deductions have been made towards personal expenses, income tax or personal perquisites. She relied upon certain decisions in support of determination of quantum of compensation in such matters.

  6. Mr.Gokhale, learned counsel for the respondentsclaimants, submits that the accident in the present case took place entirely on account of negligence on the part of Tempo driver, who was driving tempo at the very high speed in a rash and negligent manner. He submits that there is absolutely no material on record to suggest any contributory negligence. He submits that the MACT has carefully assessed the material on record and rightly rejected the contentions based upon the alleged overloading of vehicle, over speeding or driving with one hand and using the other for speaking on the mobile phone. He submits that in this case prosecution was launched against the Tempo driver and in the prosecution so launched, even the State, has not hinted any contributory negligence on the part of deceased Sudam. He submits that the spot panchanama and other documentary evidence on record also militates against the theory of any contributory negligence. Mr.Gokhale has relied upon the following decisions in support of his submissions:

    i] N.K.V. Bros (P) Ltd. Vs/. M. Karumai Ammal and ors.(1980 ACJ 435 Supreme Court);

    ii] Bimla Devi and ors V/s. Himachal Road Transport Corporation and ors. (Civil Appeal No. 2538 of 2009 arising out of SLP (C) No.280 of 2006 decided on 15th April 2009);

    iii] Dr. Dattatraya Laxman Shinde vs. Nana Raghunath Hire and ors -- 2013 ACJ 474 (Bom.);

    iv] Oriental Insurance Co. Ltd. vs. Sangita D. Jamdade and ors. 2006 ACJ 971 Bom.;

    v] Rajasthan State Road Trans. Corpn. And anr. vs. Devilal and ors. 1991 ACJ 230 (Rajasthan); and

    vi] Philippose Cherian and anr. vs. T.A. Edward Lobo and anr. 1991 ACJ 634 (Kerala);

  7. Mr.Gokhale has further submitted that the determination of compensation by the MACT is in fact on a conservative...

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