Manju Mohanlal Gujar And 3 Ors. Vs Ms. Viraj Profiles Ltd.....Icici Lombard Gen. Ins.
Case Details
 Case Type | M.A.C.P. |
 Filing Number | 100755/2013 |
 Registration Number | 100755/2013 |
 Filing Date | 06-12-2013 |
 Registration Date | 06-12-2013 |
 First Hearing Date | 31st January 2014 |
 Decision Date | 06th May 2016 |
 Case Status | Case Disposed |
 Court Number and Judge | 3-Member M.A.C.T. Thane; |
 Nature of Disposal | Contested--Judgment; |
Petitioners & Respondents
Petitioner Manju Mohanlal Gujar And Ors., ;
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Petitioner AdvocateR.C. Yadav;
Respondent NameMs. Viraj Profiles Ltd.....Icici Lombard Gen. Ins.;
Respondent AdvocatePoojari;
Order Details
| Order Date | 26-08-2015  |
1 ORDER BELOW EXH.5 IN MACP No.755/2013 1} This is an application for grant of compensation of Rs.50,000/- as No Fault Liability compensation under Section 140 of Motor Vehicles Act, 1988. 2} I perused the record. Heard both the sides. 3} On perusing the documents filed on record, prima facie it reveals that on 12.9.2013 at about 10.00 p.m., on Uran – Belapur road, in front of Ambuja Cement Company, impugned accident occurred due to involvement of vehicle bearing No.MH-04-CU-9610 in which deceased Mohanlal Makanalal Gujar sustained injuries and died. Opponent No.2 – insurance company admitted that vehicle bearing No.MH-04-CU-9610 owned by opponent No.1 was insured with opponent No.2 – insurance company for a period 18.1.2013 to 17.1.2014, which covers the date of accident i.e. 12.9.2013. Thus, opponents No.1 and 2 are jointly & severally responsible to pay No Fault Liability compensation of Rs.50,000/- to the applicants. Hence, I pass following order :- ORDER 1} Application Exh.5 is allowed. 2} Opponents No.1 and 2 shall jointly and severally pay amount of Rs.50,000/- as No Fault Liability compensation with interest at the rate of 8% per annum from the date of order till realization of the above amount, to the applicants. 2 3} On depositing the above amount, it shall be equally paid to the applicants No.1 to 4 by separate account payee cheque on due identification and verification. 4} Court fee, if any due, be recovered. 5} Bill of costs be prepared accordingly. Thane. (K.D. Vadane) Date: 26/08/2015. Member M.A.C.T.Thane. |
Final Order Judgement
| Order Date | 06-05-2016 |
| 1 M.A.C.P. No. 755/2013. Received On : 14/03/2014. Registered On: 14/03/2014. Decided On : 06/05/2016. Duration : 02Y.01M.22D. BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THANE. AT : THANE. (Presided over by Mr. K.D. Vadane, Member, M.A.C.T., Thane.) Motor Accident Claim Petition No.0100755/2013 Exhibit No.42 1. Smt. Manju Mohanlal Gujar, Aged : 30 years, (Widow of the deceased) 2. Shri. Makanalal Kishna Gujar, Aged : 60 years, (Father of the deceased) 2 M.A.C.P. No. 755/2013. 3. Mrs. Bhamari Bai Makanalal Gujar, Aged : 58 years, (Mother of the deceased) 4. Miss. Chetana Mohanlal Gujar, Aged : 1 year, (Minor daughter of the deceased) All are R/o. Room No.399, Wadi Estate, Bail Bazar, N.R. Building No.12, Kurla, Mumbai. .. Applicants. V/s. 1) M/s. Viraj Profiles Ltd., G2, MIDC Tarapur, Industrial Area, Bhoisar, Thane – 401 506. .. Opp. Party. 2) ICICI Lombard Gen. Ins. Co. Ltd., Peninsula House, 4th Floor, Dr. D.N. Road, Fort, Mumbai400 001. .. Insurer. 3 M.A.C.P. No. 755/2013. Appearance Mr. R.C. Yadav, Learned Advocate for Applicants. Opponent No.1 : Exparte. Mr. K.V. Poojari, Learned Advocate for Opponent No.2. J U D G M E N T. (Delivered on this 6th May, 2016) 1} This is application for grant of compensation of Rs.50,00,000/ under Section 166 of the Motor Vehicles Act, 1988. 2} In brief, facts of the applicants' case, are as under : Applicant No.1 is the widow of deceased Mohanlal Makanalal Gujar (hereinafter called as “deceased”) and applicant No.4 is their minor daughter. Applicants No.2 & 3 are parents of the deceased. Deceased was 32 years old, and by doing retail business of ornaments & electrical goods, earning Rs.50,000/ per month. All the applicants were dependents of the deceased. 3} On 12.9.2013 at about 10.00 p.m. the deceased was riding a motorcycle bearing No.MH03AV2764 in moderate speed, and by observing vehicular rules, but when he reached on Uran – Belapur road, in front of Ambuja Cement Company, a truck bearing No.MH04CU9610 came in high speed, and in rash & negligent 4 M.A.C.P. No. 755/2013. manner, and gave dash to the bike of the deceased, resulting to which the deceased sustained injuries and died. Impugned accident occurred due to sole negligence on the part of driver of truck bearing No.MH 04CU9610, therefore a Crime bearing No.105/2013 came to be registered against him at NRI Sagari Police Station. 4} Opponent No.1 is the owner of offending truck bearing NO.MH04CU9610 and said vehicle was insured with opponent No.2 – insurance company for a period covering the date of accident. Thus, opponent No.1 and 2 are jointly and severally responsible to pay compensation of Rs.50,00,000/ to the applicants. 5} Inspite of service of notice opponent No.1 remained absent, therefore claim proceeded exparte against him. 6} Opponent No.2 – insurance company has filed its written statement at Exh.12 and resisted the claim. Opponent No.2 denied age, occupation and income of the deceased. Opponent No.2 denied that the applicants are dependents of the deceased. Opponent NO.2 denied that the impugned accident occurred due to rash & negligent driving on the part of driver of truck bearing NO.MH04CU9610, in which the deceased sustained injuries and died. The deceased was riding his motorcycle in high speed, and suddenly stopped before the truck, resulting to which accident occurred. Thus, accident occurred due to own negligence of the deceased, and there was no negligence on the part of driver of the truck bearing No.MH04CU9610. On 5 M.A.C.P. No. 755/2013. these and other grounds opponent No.2 requested to dismiss the application. 7} From the rival pleadings of the parties I have framed the issues at Exh.13, said issues with my findings thereon for the reasons stated thereto are as under : Issues. Findings. 1] Whether applicants prove that on 12.9.2013 at about 10.00 p.m., on Uran – Belapur road, in front of Ambuja Cement Company, impugned accident occurred due to rash and negligent driving of vehicle bearing No.MH04CU9610 by its driver ? .. Impugned accident occurred due to contributory negligence to the extent of 75% on the part of driver of the container bearing No.MH04CU9610 and 25% contributory negligence on the part of deceased – rider of the motorcycle bearing No.MH03 AV2764. 2] Whether applicants prove that in the impugned accident deceased Mohanlal Makanalal Gujar died ? .. Yes. 3] Whether applicants are entitled for compensation ? If yes, what amount and from whom ? .. Yes, to the extent of Rs.36,16,038/ together with interest at the rate of 8% per annum from 6 M.A.C.P. No. 755/2013. opponent No.1 and 2 jointly and severally. 4] What order and award ? .. As per final order. R E A S O N S. 8} In order to prove their claim applicant No.1 Manju Mohanlal Gujar has filed her evidence on affidavit at Exh.14, and also filed evidence on affidavit of Arun Devilal Bhandari (C.W.2) at Exh.23 and evidence on affidavit of Kumar Shatrughan Baradraj (C.W.3) – officer of Income Tax Department, at Exh.38. On the other hand opponents have not adduced any oral evidence. As to Issue No.1 : 9} The learned Counsel for the applicants submitted that contention of the applicant is corroborated by the police papers on record, offence for rash & negligent driving came to be registered against the driver of the truck / container bearing No.MH04CU 9610 itself shows that there was negligence on the part of driver of the said container for the occurrence of the accident. In support of his submission he relied on the following rulings : (1)United India Insurance Company V/s. Vijay Vishnupant Karandikar and Others reported in 2014 (2) T.A.C. 227 (Bom.), (2)United India Insurance Co. Ltd. V/s. Deepak Goesl and Others reported in 2014 (2) T.A.C. 846 (Del.) (3)Yerramma and Others V/s. G. Krishnamurthy and Another 7 M.A.C.P. No. 755/2013. reported in 2014 (4) T.A.C. 337 (S.C.) (4)Ramappa V/s. Bojappa reported in AIR 1963 S.C. 1633 (5)Cherian V/s. T.A.Edward Lobo reported in 1991 A.C.J. 534 10} On the other hand the learned Counsel for opponent No.2 – insurance company submitted that Manju Gujar (C.W.1) is not an eye witness of the accident, applicants have not examined any independent eye witness of the accident, and thereby they failed to prove negligence on the part of driver of the truck / container bearing No.MH04CU9610. 11} The word “negligence”, in the realm of tortious liability such as the one arising out of motor vehicular accident connotes that though liable to take care, driver did not take care and committed thereby breach of his legal duty towards the injured or the victim. The test whether a driver was or was not negligent is the inference which a reasonable or prudent man, in the fact situation would draw. The Hon'ble Apex Court in a case Union of India V/s. United India Insurance Company Ltd. 1998 ACJ 342 (SC) observed that, “…..test of breach of common law duty is against the test of a reasonable or prudent man in the practical fact situation..... ” 12} Moreover, Hon'ble Apex Court in a case M S Grewal Vs. Deep Chand Sood reported in 2001 ACJ 1719 (SC) defined 8 M.A.C.P. No. 755/2013. “negligence” as, “.....Negligence in common parlance means and imply 'failure to exercise due care, expected of a reasonable prudent person'. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and reasonable man would not do.....” 13} Honble Apex Court in a case Ravi Kapur V/s. State of Rajasthan reported in AIR 2012 Supreme Court 2986 observed that, “.....'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact 9 M.A.C.P. No. 755/2013. formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence......” 14} Manju Gujar (C.W.1) in her evidence on affidavit (Exh.14) contended that on 12.9.2013 at about 11.00 p.m. her deceased husband was returning to home by riding a motorcycle bearing No.MH03AV2764, and when her husband reached at Uran – Belapur road, in front of Ambuja Cement Company, a truck bearing No.MH04CU9610 came in high & excessive speed, and in rash & negligent manner, and gave dash to the bike of her husband, due to which her husband fell down on road, and the said truck ran over the head of the deceased, resulting to which he died. However, Manju Gujar (C.W.1) in the course of crossexamination admitted that she is not an eye witness of the accident. 15} Opponent No.1 – owner of the truck bearing No.MH04 CU9610 inspite of service of notice remained absent, therefore claim proceeded exparte against him. Opponent NO.2 – insurance company sought a permission under Section 170 of M.V. Act and crossexamined to Manju Gujar (C.W.1) on all grounds including 10 M.A.C.P. No. 755/2013. negligence. Contention of opponent NO.2 – insurance company is that accident occurred due to own negligence of the deceased. However, opponent No.2 – insurance company has not examined any eye witness of the accident including driver of the truck bearing No.MH04CU9610. FIR (Exh.17) shows that on the basis of report lodged by one Nishant Tukaram Gaikwad, a Crime bearing No.105//2013 came to be registered against the driver of container bearing No.MH04CU9610 at NRI Sagari Police Station. The applicants have not examined to Nishant Gaikwad. In the FIR (Exh.17) Nishant Gaikwad alleged that on 12.9.2013 at about 11.00 p.m. he was proceeding towards Belapur, at that time one container bearing No.MH04CU9610 which was coming from Ulva side and proceeding towards Killa Junction, came in high speed, and gave dash to motorcycle bearing No.MH03AV2764, resulting to which rider of the motorcycle fell down on road, and wheel of the container passed over the said person. Spot panchanama (Exh.18) shows that impugned accident occurred at Ulva Ambuja Cement Company's square, adjacent to the road which passes towards Uran. Thus, from the spot panchanama (Exh.18) it reveals that the impugned accident occurred in the square, therefore it was expected from the rider of the motorcycle i.e. deceased and driver of the container to take utmost care while proceeding from the square. Thus, it appears that deceased – rider of the motorcycle bearing No.MH03AV2764 has also not taken care & caution while crossing the square. Moreover, from the FIR, spot panchanama and postmortem report it reveals that the wheel of the container bearing No.MH04CU9610 passed over the head of 11 M.A.C.P. No. 755/2013. the deceased. This implicitly shows that at the time of accident container bearing No.MH04CU9610 was in high speed, and its driver could not control it. Therefore, taking into consideration all the above facts & circumstances, in my view, the impugned accident occurred due to contributory negligence to the extent of 75% on the part of driver of the container bearing No.MH04CU9610 and 25% contributory negligence on the part of deceased – rider of the motorcycle bearing No.MH03AV2764. Hence, I answer Issue No.1 Accordingly. As to Issue No.2 : 16} Contention of the applicants is that in the impugned accident deceased Mohanlal Makanalal Gujar sustained injuries and died. FIR (Exh.17) shows that in the impugned accident deceased Mohanlal Makanalal Gujar sustained injuries and died. Moreover, inquest panchanama (Exh.19) and postmortem report (Exh.20) show that death of the deceased occurred due to shock due to multiple accidental injuries. Thus, the applicants have established that in the impugned accident deceased Mohanlal Makanalal Gujar sustained injuries and died. Hence, I answer Issue No.2 Affirmative. As to Issue No.3 & 4 : 17} The learned Counsel for the applicants submitted that from the income tax returns filed on record the applicants have established that income of the deceased was Rs.5,11,186/ per annum, and after adding 50% amount towards future prospects, income of the 12 M.A.C.P. No. 755/2013. deceased be considered as Rs.7,67,479/, and compensation of Rs.96,34,744/ be awarded. In support of his submission the learned Counsel for the applicants has relied on the following rulings : (1)Munna Lal Jain and another V/s. Vipin Kumar Sharma and others reported in 2015 ACJ 1985 (2)Rajesh V/s. Rajbir Singh reported in 2013 (3) TAC 697 (3)Santosh Devi V/s. National Insurance Co. Ltd. reported in 2012 (3) TAC1 and (4)Sarla Verma V/s. Delhi Transport Corporation reported in 2009(2) TAC 677 (SC) 18} The applicants have not adduced any corroborative piece of evidence in respect of the age of the deceased. Postmortem report (Exh.20) shows that the deceased was 32 years old at the time of accident and his death. Arun Devilal Bhandari (C.W.2) in his evidence on affidavit (Exh.23) contended that deceased Mohanlal Gujar was his client, and he was preparing income tax returns of the deceased, and income of the deceased was about Rs.52,000/ per month. Arun Bhandari (C.W.2) in the course of crossexamination stated that he is not aware whether business of the deceased is continued in the name of his wife or relative. He further stated that after the death of deceased Mohanlal, selfassessment tax was submitted. Thus, the selfassessment tax which was prepared by Arun Bhandari (C.W.2) is 13 M.A.C.P. No. 755/2013. after the death of the deceased. 19} Kumar Baradraj (C.W.3), who is working as Inspector in Income Tax Department, Ward 26(2) 3, Mumbai, in his evidence on affidavit (Exh.38) contended that their office maintains the details of the assessment order passed under Section 143(1) and acceptance of the returns, accordingly letter (Exh.39) is issued by their office. Impugned accident occurred on 12.9.2013. Income tax return (Exh.26) for the Assessment Year 20122013 shows the gross annual income of the deceased was Rs.3,95,282/, and after deducting income tax of Rs.12,250/, income of the deceased was Rs.3,83,032/ per annum. Thus, I hold that income of the deceased was Rs.3,83,032/ per annum. 20} The learned Counsel for the applicants submitted that the deceased had bright future prospects, therefore future prospective income of the deceased may also be taken into consideration while granting compensation to the applicants. 21} However, recently Hon’ble Apex Court in case of (1) National Insurance Company Ltd. V/s. Pushpa and others reported in (2015) 9 Supreme Court Cases 166 and (2) Shashikala and others V/s. Gangalakshmamma and another reported in (2015) 9 Supreme Court Cases 150 observed that : “…..Motor Vehicles Act, 1988 – S.166 – 14 M.A.C.P. No. 755/2013. Compensation/Damages – Addition of income for future prospects visàvis persons who are selfemployed or on fixed wages – Divergent opinions reflected in Rajesh, (2013) 9 SCC 54 and Reshma Kumari, (2013) 9 SCC 65 – Reshma Kumari case though rendered earlier not taken note of in Rajesh case – Need for authoritative pronouncement – Matter referred to larger Bench…..” Thus, Hon’ble Apex Court had referred the matter to the larger Bench. 22} Moreover, recently Hon'ble Bombay High Court in a case New India Assurance Co. Ltd. V/s. Alpa Rajesh Shah and others reported in 2014 ACJ 1747 observed that “principles of assessment – future prospects – in absence of information about earning potential it is not possible to consider future prospects”. 23} Moreover, recently Hon'ble Delhi High Court in case of HDFC Ergo General Insurance Co. Ltd. V/s. Lalta Devi and others reported in 2015 ACJ 2526 observed that : “.....Quantum – Fatal accident – Principles of assessment – Future prospects – Deceased aged 20 was 3rd year student of engineering of a little known college and from 15 M.A.C.P. No. 755/2013. an ordinary university – Deceased failed in a number of subjects in first and second semesters – Claimants contended that following Rajesh, 2013 ACJ 1403 (SC), future prospects have to be added in all cases where a person was getting fixed wages or was a seasonal employee or a student – Rajesh, 2013 ACJ 1403 (SC), is not a binding precedent in view of Reshma Kumari, 2013 ACJ 1253 (SC), which was pronounced earlier in time – Whether claimants are entitled to any addition towards future prospects – Held : no.....” 24} Thus, in view of ratio laid down by Hon'ble Apex Court and Hon'ble High Courts in supra cases, and as there is nothing on record to show that deceased was having bright future prospects, therefore future prospective income of the deceased cannot be taken into consideration for granting compensation to the applicants. 25} After deducting 1/4th amount i.e. Rs.95,758/ for own expenses of the deceased from yearly income of Rs.3,83,032/, yearly loss of dependency comes to Rs.2,87,274/. Taking into consideration the age of the deceased, proper multiplier in this case would be 16 as laid down in Sarla Verma's [AIR 2009 S.C. 3104(1)] case. After multiplying by multiplier 16 to the yearly loss of dependency of Rs.2,87,274/, future loss of dependency comes to Rs.45,96,384/. Moreover, the applicants are also entitled for compensation of Rs.1,00,000/ under the head – loss of estate, Rs.1,00,000/ under the 16 M.A.C.P. No. 755/2013. head loss of love and affection and Rs.25,000/ towards amount incurred for the funeral and last rites of the deceased, as laid down in Rajesh & Ors. V/s. Rajbir Singh & Ors [(2013) 9 SCC 54] case. Thus, total compensation comes to Rs.48,21,384/, as below : 1. Future loss of dependency. : Rs.45,96,384/ 2. Loss of estate. : Rs.1,00,000/ 3. Loss of Love & affection. : Rs.1,00,000/ 4. Amount incurred for the burial & last rites of the deceased. : Rs.25,000/ Total : Rs.48,21,384/ 26} Copy of certificate cum policy schedule (Exh.21) shows that opponent No.1 – owner of the vehicle bearing No.MH04CU 9610 has insured it with opponent No.2 – insurance company for a period 18.1.2013 to 17.1.2014, which covers the date of accident i.e. 12.9.2013. 27} While deciding issue No.1 I have already come to conclusion that the impugned accident occurred due to contributory negligence to the extent of 75% on the part of driver of the container bearing No.MH04CU9610 and 25% contributory negligence on the part of deceased – rider of the motorcycle bearing No.MH03AV 2764. Therefore, opponent No.1 and 2 are jointly and severally responsible to pay 75% compensation out of total compensation, which comes to Rs.36,16,038/, including No Fault Liability 17 M.A.C.P. No. 755/2013. compensation. 28} So far as the interest is concerned, taking into consideration fluctuating rate of interest given by the nationalized banks on the fixed deposit amount and rate of interest awarded by the Government on Provident Fund, interest @ 8% per annum is just and proper. Hence, I grant the same. 29} Cumulative effect of the findings and reasoning is that petition is liable to be partly allowed with proportionate costs. Hence, I answer Issue No.3 and 4 accordingly and proceed to pass the following order : ORDER. 1} Petition is partly allowed with proportionate costs. 2} Opponents No.1 & 2 shall jointly and severally pay to the applicants an amount of Rs.36,16,038/ (Rupees ThirtySix Lakhs Sixteen Thousand and ThirtyEight only) including No Fault Liability Compensation, with interest @ 8% per annum from the date of petition till realization of the above amount. 3} On depositing the above amount, amount of Rs.10,00,000/ (Rupees Ten Lakhs only) be invested in fixed deposit account in the name of 18 M.A.C.P. No. 755/2013. minor applicant No.4 in any nationalized bank till attaining majority under the guardianship of her mother i.e. applicant No.1. 4} Amount of Rs.2,00,000/ (Rupees Two Lakhs only) each be invested in separate fixed deposit account in the name of applicant No.2 & 3 in any nationalized bank for a period of 5 years and amount of Rs.3,00,000/ (Rupees Three Lakhs only) each be paid to applicant No.2 & 3 by separate crossed account payee cheque on due identification and verification. 5} Amount of Rs.4,00,000/ (Rupees Four Lakhs only) be invested in fixed deposit account in the name of applicant No.1 in any nationalized bank for a period of 5 years and remaining amount along with interest be paid to her by crossed account payee cheque on due identification and verification. 6} Court fee, if any due, be recovered. 7} Award be drawnup accordingly. Thane. Date: 06/05/2016. (K.D. Vadane) Member, M.A.C.T. Thane . |
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Frequently Asked Questions
The Petitioner in case Manju Mohanlal Gujar And 3 Ors. vs Ms. Viraj Profiles Ltd.....Icici Lombard Gen. Ins. is Manju Mohanlal Gujar And 3 Ors..
The Respondent in case Manju Mohanlal Gujar And 3 Ors. vs Ms. Viraj Profiles Ltd.....Icici Lombard Gen. Ins. is Ms. Viraj Profiles Ltd.....Icici Lombard Gen. Ins..
The case against Ms. Viraj Profiles Ltd.....Icici Lombard Gen. Ins.was filed on 06-12-2013 by Manju Mohanlal Gujar And 3 Ors..
The status of case Manju Mohanlal Gujar And 3 Ors. against Ms. Viraj Profiles Ltd.....Icici Lombard Gen. Ins. is Case Disposed.