New India Assurance Co. Ltd. Vs. Shreelata Mohanrao Tupkar and ors. - Court Judgment

1. Dr. Mohanrao Tupkar, who was employed under the Zilla Parishad, Aurangabad, as Medical Officer and attached to the Primary Health Centre at Wadod Bazar in Sillod Taluka, was travelling in a Jeep on 15-12-1997 and at about 7.15 p.m. when the said Jeep was stopped near Khamgaon Phata bridge he got down from the said vehicle and went to attend nature's call. While he was returning towards the said Jeep by crossing the road, another Jeep (Trax) bearing Registration No. MH-20-A-7832 coming from Aurangabad side dashed him as a result of which he expired on the spot. One Anis Khan Pathan was the driver of the said Trax.

2. The dependants of the deceased i.e. wife, mother and children filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') before the Motor Accident Claims Tribunal at Aurangabad, which came to be registered as M.A. C.P. No. 111/98, and claimed an amount of Rs. 23,50,000/- from the driver, owner and Insurer of the said vehicle. The driver, who was impleaded as respondent No. 1 in the said petition, did not appear before the Tribunal whereas respondent No. 2, though appeared, did not file a separate written statement opposing the claim and he only signed the written statement filed by the respondent No. 3 Insurance Company. The defence taken by the respondent No. 3 Insurance Company (in its written statement) was that the Jeep (Trax) was not involved in the subject accident and on the other hand, Dr. Tupkar fell down from the Jeep in which he was travelling, as its door suddenly opened. This defence did not find favour with the Tribunal on the basis of the evidence of the co-passenger who was travelling alongwith Dr. Tupkar in the said Jeep and who was also an employee of the Zilla Parishad. The Tribunal also considered the F.I.R. (Exhibit-41), spot panchanama (Exhibit-42), post mortem report (Exhibit-43) and the deposition of Kadir Ahmed (Exhibit-50) and recorded a finding that the Jeep, in which Dr. Tupkar was travelling, was not in any way involved in the accident and on the other hand, it was the Jeep (Trax) bearing Registration No. MH-20-A-7832 which gave a dash to Dr. Tupkar and as a result of which he died on the spot.

3. So far as income of the deceased is concerned, the required documentary evidence by way of a Salary Certificate was placed before the Tribunal. At the relevant time, Dr. Tupkar was drawing a monthly salary of Rs. 12,370/-, whereas his wife had stated that the monthly salary of Dr. Tupkar was Rs. 11,565/-. As the Salary Certificate was dated 16-7-2001, the Tribunal had considered the monthly salary as Rs. 12,000/- and calculated the annual income at Rs. 1,44,000/-. The age of the deceased was shown to be 52 years, which was non disputed and he was to retire at the age of 58 years. Considering these aspects, the Tribunal granted an amount of Rs 11,27,000/- to be payable jointly by the respondents Nos. 2 and 3 with interest at the rate of 9% p.a. from the date of petition till full payment is made.

4. Being aggrieved by the said Award dated 29-6-2002, passed by the Motor Accident Claims Tribunal at Aurangabad, in MACP No. 111/98, the original respondent No. 3 Insurance Company has preferred this appeal.

5. In the case of National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi and others, reported in A.I.R. 2002 S.C.W. 3899, a three Judge Bench of the Apex Court has laid down the parameters governing an appeal filed under section 173 of the Act at the instance of the Insurance Company and it has been, inter alia, held that the said appeal could be filed only on any or more of the grounds set out in sub-section (2) of section 149 of the Act. In this appeal, by the Insurance Company, the substantial grounds are :

(a) That the subject accident did not involve the Jeep (Trax) and it was in fact the Jeep in which Dr. Tupkar was travelling which caused the accident resulting into the death of Dr. Tupkar;

(b) The driver of the Jeep, in which Dr. Tupkar was travelling, was guilty of causing the accident solely on account of his negligence and rash driving;

(c) The Jeep (Trax) was not on the spot when the accident had taken place and in fact it reached the spot a little later;

(d) The Tribunal committed gross error in law by choosing the multiplier of 12 when it was known that the deceased was to retire from service after six years.

6. Shri Upadhye, the learned Counsel appearing for the Insurance Company, submitted that the multiplier ought to have been between 8 to 11 as per the Schedule provided under section 163-A of the Act.

However, in view of the decision of the Apex Court in the case of National Insurance Company Ltd. (supra), this ground of challenge is not available to the Insurance Company and the same cannot be considered.

7. So far as the accident and involvement of Jeep (Trax) driven by the original respondent No. 1 and owned by original respondent No. 2 is concerned, we have perused the record and proceedings which were called from the Tribunal and on perusal of the F.I.R. (Exhibit 41), spot panchanama (Exhibit-42) and the deposition of Kadir Ahmed (Exhibit-50) in addition to Exhibit-70, which is a panchanama of the Jeep (Trax) carried out after accident, it is clear that these documents have been meticulously scanned by the Tribunal and the contention of the Insurance Company that the Jeep (Trax) was not involved in the accident has been rejected. These findings are required to be upheld as we are satisfied that there is no error committed by the Tribunal on assessing the evidence in support of its findings. Under these circumstances, the challenge to the impugned Award passed by the Tribunal in MACP No. 111/98 must fail.

8. In the result, the appeal is dismissed in limine.

9. In view of this, Civil Application No. 6610/2002 does not survive and is disposed of accordingly.