Oriental Insurance Co. Ltd. Vs. Balkrishna Bhaduji Kakhe and ors. - Court Judgment

Excerpt:
- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other.....orderdongaonkar s.r., j.1. the appellant has taken exception to the judgment and award passed by member, m.a.c.t., akola, in m.a.c.p. no. 107/91, dated 30th october, 1993, in a claim petition filed by respondent nos. 1 to 6 against respondent nos. 7 to 11 & appellant for claiming compensation of rs. 3,00,000/- for the death of the son of respondent nos. 1 and 2, namely raju, who died in an accident in a collision between two trucks, one bearing number mhg-7655 driven by respondent no. 8 gurubachansingh mangalsingh and owned by respondent no. 7 smt. parvindar kaur tuli and insured with the present appellant i.e. oriental insurance co. ltd., and the another truck bearing no. mtg-8466, owned by respondent no. 9 sayyed jafar, driven by respondent no. 10 mohd. ismail sheikh and insured with.....

Judgment:
ORDER

Dongaonkar S.R., J.

1. The appellant has taken exception to the judgment and award passed by Member, M.A.C.T., Akola, in M.A.C.P. No. 107/91, dated 30th October, 1993, in a claim petition filed by respondent Nos. 1 to 6 against respondent Nos. 7 to 11 & appellant for claiming compensation of Rs. 3,00,000/- for the death of the son of respondent Nos. 1 and 2, namely Raju, who died in an accident in a collision between two trucks, one bearing Number MHG-7655 driven by respondent No. 8 Gurubachansingh Mangalsingh and owned by respondent No. 7 Smt. Parvindar Kaur Tuli and insured with the present appellant i.e. Oriental Insurance Co. Ltd., and the another truck bearing No. MTG-8466, owned by respondent No. 9 Sayyed Jafar, driven by respondent No. 10 Mohd. Ismail Sheikh and insured with respondent No. 11 New India Assurance Co. Ltd.

2. The assertions of respondent Nos. 1 to 6 in the petition were that respondent Nos. 1 & 2 are the parents of deceased Raju whereas respondent Nos. 3, 4, 5 are the brothers of deceased Raju and respondent No. 6 is the younger sister of said deceased Raju. It is alleged that respondent No. 1 (org. claimant No. 1) and deceased Raju were the only earning members of the family. On fateful day i.e. on 23.02.1991 at about 3.43 p.m. (in the afternoon) deceased Raju was sitting in the truck No. MHG-7655. It was insured with the appellant Oriental Insurance Company. It is alleged that the deceased was travelling in the said truck in the course of employment of original respondent No. 1. At the relevant time, the truck No. MTG 8466 was coming from the opposite side. Near the Cotton Market, Murtizapur on N.H. No. 6, there was collision between these two trucks. It was alleged that the accident had occurred due to rash and negligent driving of the said trucks by the drivers of those trucks. Deceased Raju suffered injuries in that accident and succumbed to those injuries later. Claimants, present respondents Nos. 1 to 6 claimed compensation of Rs. 3,00,000/- from the appellant as well as other respondents jointly and severally.

3. According to the claimants, deceased Raju was working as 'cleaner' on the truck No. MHG-7655 and he was getting salary of Rs. 1000/- per month. He was also getting T.A. and D.A. excluding his salary. His total monthly earning was Rs. 1,250/-. His age at the relevant time was about 23 years. He was strong and able bodied person. He had a very bright career. Due to untimely death of said Raju, the respondent No. 1 and other respondents lost the source of family livelihood, and that caused severe mental shock and agony. They issued notice to the respondents & appellant and claimed above compensation in the proceedings.

4. Learned Member, M.A.C.T. Akola, passed order of grant of interim compensation on account of No Fault Liability. Respondent Nos. 7, 8 & appellant on one side and respondent Nos. 9,10,11 on other side were directed to pay compensation of Rs. 12,500/- each.

5. I need not refer to the defence of the other respondents, suffice it td say that the appellant by its written statement opposed the claim petition. All the material facts were denied. It was also denied that the deceased had income of Rs. 1,250/- per month as alleged, so also his age. It was claimed that the accident had occurred on the road which was of sufficient width and the other truck MTG-8466 was also involved in the accident and the driver of the said truck had not taken any care and with a view to escape his liability, the driver of the said truck had lodged false report. It was also claimed by the appellant that there was breach of conditions of the insurance policy and therefore, it was not liable to pay any compensation.

6. Respondent No. 11 i.e. original respondent No. 6. New India Assurance Co. Ltd., had opposed the claim petition on the similar grounds. It was inter alia claimed that the accident had occurred due to rash and negligent driving of the other truck i.e. the truck insured with the appellant bearing No. MHG-7655.

7. The learned Member, M.A.C.T., Akola, framed the following issues and recorded his findings, which read thus-

ISSUES

(1) (a) Whether the accident in question was caused due to the rash and negligent driving of the drivers of both the vehicles viz. MHG-7655, driven by respondent No. 2 and owned by respondent No. 1, and by truck No. MTG-8466, driven by respondent No. 5, and owned by respondent No. 4, and insured with respondent Nos. 3 86 6 respectively at the time of the accident?

(b) Or whether the accident in question was caused by the collision of both the vehicles?

(2) To what amount of compensation the claimants are entitled, and from which of the respondents?

(3) Whether the claimants prove that deceased Raju was serving as Cleaner with non-applicant No. 1 at Nagpur, getting salary of Rs. 1000/- p.m. at the time of the accident?

(4) What order.

FINDINGS

(1)(a) Yes, accident was caused due to the rash and negligent driving of the driver of truck No. MHG-7655, driven by non-applicant No. 2 owned by N.A. 1 and insured with Non-applicant No. 3.

(b) No.

(2) As per order below.

(3) Yes.

(4) As per final order below.

Thus, according to the learned Member, the accident had occurred due to rash and negligent driving of the driver of the truck No. MHG-7655, driven by respondent No. 8 (org. respondent No. 2) which was insured with the appellant. He, therefore, held the appellant liable for compensation in the claim petition. He arrived at the finding that the claimants are entitled for the compensation of Rs. 2,10,000/- from respondent Nos. 7, 8 & the appellant. He, therefore, passed the impugned award.

8. This judgment and award is challenged in this appeal.

9. Needless to state that respondent Nos. 7 to 10 herein did not contest the matter. Even none appeared for respondent Nos. 1 to 6 (original claimants.)

10. Respondent No. 11, however, contested the appeal saying that the accident had occurred only because of the negligent driving of the truck No. MHG-7655, which was insured with the appellant and therefore, the appellant alone is liable for the compensation. His contention would be later on dealt with at the appropriate place.

11. Learned Counsel for the appellant Shri N.B. Banthina has submitted that deceased Raju was cleaner on the vehicle Truck No. MHG 7655, which was insured with the appellant. He died in the accident. According to him, there was head-on collision between two trucks i.e. Truck No. MHG-7655 and MTG-8466 and therefore, the liability of the compensation should be apportioned between the two trucks making each of them liable for 50% of the compensation. As regards merits, learned Counsel has further submitted that the report lodged by the driver of the other truck namely Mohd. Ismail Sheikh (Exh. 30) cannot be taken into consideration in this matter, as it was lodged by an interim ested person; obviously, to exonerate himself from the liability of the compensation. According to him further, even the spot panchanama Exh. 31 which is pressed into service by the claimants would show that the drivers of both the trucks were rash and negligent and therefore, it is a case of composite negligence for which both the truck owners would be liable and consequently both the insurance companies i.e. the present appellant and respondent No. 11. On the issue of the quantum of the compensation, learned Counsel for the appellant submitted that the multiplier 25 as taken by the learned Member, M.A.C.T. was incorrect. Further, according to him, the contribution of Rs. 700/- per month towards the family of the claimant cannot be considered as correct inasmuch as he was earning wages of only Rs. 1,000/- per month, he would have been required to spend more that 1/3rd for his family after his marriage. Therefore, according to him, the decision /award by the learned Member, M.A.C.T., was incorrect. As such, he submitted that this appeal should be allowed in relevant terms considering the above submissions.

12. As already stated above, none appeared for respondents including original claimants other than respondent No. 11.

13. Learned Counsel for respondent No. 11 Shri M.M. Sudame, for New India Assurance Company, insurer of the Truck bearing No. MTG-8466 has contended that the finding of the learned Member, M.A.C.T., Akola, as regards negligence of Truck No. MHG-7655 is correct. According to him, the evidence on record clearly suggests that the driver of that truck was negligent and only he was liable for the accident. According to him, the report of the driver of Truck No. MTG-8466 is at Exh. 30 on record and therefore, the findings arrived at by the learned Member, M.A.C.T. are correct. He has further raised a contention that even if it is assumed for a moment that there was some negligence on the part of the driver of the truck No. MTG-8466, still in the circumstances of the case, when the appellant has been held liable for the compensation, this respondent should not be saddled with any liability as both the Insurance Companies are Public Sector Undertakings. According to him, as the driver of truck No. MHG-7655 has not examined himself, so also he did not lodged report, therefore, the findings of the learned Member, M.A.C.T. cannot be interfered with. He, however, did not raise any contention as regards quantum of compensation.

14. In order to consider the rival contentions of the parties, it is necessary to bear in mind that the claimants have examined one witness Angad Jaiswal, who is alleged to be the eye-witness to the accident and there is no other evidence except that of the documents in F.I.R. lodged by the driver of the Truck No. MTG-8466 and panchanama of the spot as regards the manner in which the accident had occurred, on record.

15. Turning to the evidence of Angad Jaiswal, it would be seen that he has stated in examination in chief itself that he was coming on bicycle from Mana to Murtizapur by road and at that time one truck was coming from back side and was proceeding to Akola. As two persons in the truck shouted, he took his cycle to a side and then truck proceeded further. He then went to nearby field and thereafter he heard the noise of the accident. From his this evidence itself, it appears that he is not the eye witness to the actual accident. He did not specifically depose regarding the manner and speed in which the trucks were driven.

16. He is also witness to the spot panchanama, however, he has stated in cross examination that panchanama was already written when he had come to the spot. Thus, he is not a witness to the actual preparation of the spot panchanama also.

17. Learned Member, M.A.C.T. has held that the evidence of witness No. 2 Angad Jaiswal does not throw any light on the manner in which the accident had occurred. Therefore, on the strength of F.I.R. and the spot panchanama, he held that the accident had occurred due to negligence of the driver of the truck No. MHG-7655.

18. On perusal of the spot panchanama and also the F.I.R, it would be seen that the truck No. MHG-7655 which was proceeding towards Akola had turned turtle. Truck No. MTG-8466 was by the side of the road. It would thus be seen that Truck No. MHG-7655 must be in a speed. No doubt the 'show' of the truck No. MTG-8466 was damaged, but on careful consideration of the spot panchanama, it would not be possible to draw clear inference that the driver of the truck No. MTG-8466 was also negligent in driving his truck.

19. Even the F.I.R. confirms this finding. No doubt, it is lodged by the driver of the truck No. MTG-8466, that fact by itself will not dislodge the inference which could be drawn from the F.I.R. as the same is supported by the contents of the spot panchanama as well.

20. Learned Counsel for the appellant has submitted that there was head-on collision between these two trucks and the driver of the truck MTG 8466 had last opportunity to avoid the accident. Learned Counsel has referred to para 7 of the judgment of the Apex Court reported in : AIR2003SC4182 ; Municipal Corporation of Greater Bombay v. Laxman Iyer and Anr. in this regard, which reads thus-

7. At this juncture, it is necessary to refer to the 'doctrine of last opportunity'. The said doctrine is said to have emanated from the principle enunciated in Devies v. Mann 1842 (10) M & w 546, which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation See Devies v. Swan Motor Co. (Swansea) Ltd. 1949 (2) KB 291. Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in Volute v. Cooper 1922 (1) AC 129 and Swadling v. Cooper 1931 AC 1, it is no longer to be applied. The sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party's negligence was the proximate cause of die accident, renders it one to be the result of contributory negligence.

However, I am unable to find that there is sufficient material on record to invoke the 'doctrine of last opportunity to avoid the accident' in the present case.

21. There is possibility of head-on collision in the present case. But that aspect was required to be proved by the appellant by adducing suitable evidence. Admittedly in the present case, the claimants have examined Angad, who was not an eye witness to the accident. In these state of affairs, particularly when the appellant did not adduce any evidence on record, the inference drawn by the learned Member, M.A.C.T. in this regard cannot be stated to be unwarranted. Therefore, in my opinion, the view of the learned Member, M.A.C.T. on this aspect cannot be said to be perverse as contended.

22. Turning to the question of quantum of compensation, it clearly appears that the deceased was aged about 23 - 24 years. His income is stated to be and as held by tribunal was about Rs. 1,000/ - per month. Obviously, he would have been required to spend 1/3rd for himself. After his marriage, he would have been required to spend considerable amount towards his family i.e. for his wife and children. Therefore, his contribution towards the claimants would have been lowered after his marriage. Fact that respondent No. 1/Claimant No. 1 is working with M.S.E.B. and has duty to maintain other claimants cannot be overlooked. In these circumstances, his average contribution for his parents, brothers & sister would be around to Rs. 500/- per month on an average. The multiplier taken into consideration by the learned Member, M.A.C.T. is 25. It appears to be on higher side. In my opinion, the proper multiplier considering the structured formula of Second Schedule for Section 163-A of the M.V. Act would be 17. Therefore, total compensation payable in this case would be Rs. 500 x 12 x 17 i.e. total Rs. 1,02,000/.

23. I have already pointed out above that none had appeared for respondents/claimants. They did not raise any say to justify the compensation awarded by the learned Member, M.A.C.T. Therefore, in my opinion, the above compensation would be adequate compensation. Further, as there is death of the son, funeral expenses of Rs. 2,000/- and compensation towards loss of estate of Rs. 2,500/- as per second schedule of Section 163-A of the M.V. Act can also be granted. As regards interest, it appears that rate of interest as granted by learned Member, M.A.CT. is 12% per annum. It is on higher side. So it can be granted @ 9% per annum. Thus, the total compensation payable in this case would be 500 x 12 x 17 = Rs. 1,02,000 + Rs. 2,000/- + Rs. 2,500 = Total Rs. 1,06,500/-, which shall be payable with the interest @ 9% per annum.

24. As regards apportionment, I find that each of the claimants would be entitled to share this compensation equally.

25. In these circumstances, the appeal will have to be partly allowed. As such the appeal is partly allowed. The award of the learned Member, M.A.C.T., Akola, is modified as under.

26. Appellant and respondent Nos. 7 & 8 jointly and severally do pay Rs. 1,06,500/-as compensation to the claimant Nos. 1 to 6 with proportionate costs together with the interest at the rate of 9% per annum from the date of filing of the claim petition till its full & final realization.

27. The respondent No. 11 would be free to recover amount of N.F.L. paid by it from the appellant and respondent Nos. 7 & 8 if it so chooses.

28. The appellant shall be entitled for the refund of the balance amount if the due amount as per order is found to be less than what has been already deposited. Ordered accordingly.