Bombay High Court
New India Assurance Co. Ltd., … vs Kavita Wd/O Gopal Goley And Others on 19 June, 2025
2025:BHC-NAG:5610
1 FA412.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 412 OF 2023
New India Assurance Co. Ltd.,
Divisional Manager, Gorakshan Road,
Akola, Tq. and District Akola,
through the Regional Manager,
Nagpur Regional Office at 1st Floor,
Riaan House, Opposite Kasturchand
Park, Mohan Nagar, Nagpur - 440001. .... APPELLANT
VERSUS
1) Kavita wd/o Gopal Goley,
Age about 38 years,
Occupation - Household,
2) Gaurav s/o Gopal Goley,
Age about 14 years,
Occupation - Education,
3) Prachi d/o Gopal Goley,
Age about 8 years,
Occupation - Education.
4) Lilabai wd/o Devrao Goley,
Age about 65 years, Occ.- Nil.
Respondent Nos. 2 and 3, being
minor, through their mother,
Respondent No.1.
All R/o Kenwad, Tq. - Risod,
District Washim.
5) Uddhav Arjun Dewade,
Age 43 years, Occupation - Driver,
At Mohaja Devade, Tq. Pathardi,
District Ahmadnagar.
(Driver of Tanker No.MH 17 BY 9696)
2 FA412.23.odt
6) Babaji Pandurag Temgire,
Age about 45 years,
Occupation - Business,
R/o Rahata, Tq. & District Ahmadnagar,
(Owner of Tanker No.MH 17 BY 9696) .... RESPONDENTS
______________________________________________________________
Mr. B.P. Bhatt, Advocate for the appellant,
Ms. S.H. Bhagat, Advocate for respondent Nos. 1 to 4.
______________________________________________________________
CORAM : ABHAY J. MANTRI, J.
DATE : 19th JUNE, 2025
ORAL JUDGMENT :
Heard. Admit. With the consent of the learned counsel for the
parties, the appeal is taken up for a final hearing forthwith.
2. This appeal is directed against the judgment and award dated
04-01-2022 passed by the learned Chairman, Motor Accident Claims
Tribunal, Washim (hereinafter referred to as the ” Tribunal”), whereby
partly allowed the claim petition of respondent Nos.1 to 4 and awarded
compensation of Rs.20,25,000/- inclusive of the no fault liability
amount.
3. It is the case of the claimants that on 13-06-2018 at about 2.15
a.m., deceased Gopal Devrao Goley, along with his friends, was
standing on the roadside near the Bolero Van. At that time, one Milk
Tanker bearing registration No.MH-17/BY-9696 (hereinafter referred to
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as the “Tanker”) came in a high-speed, rash, and negligent manner and
gave a dash to the parked Bolero Van from the back side, which hit the
deceased who was standing near the Bolero Van. In the accident, the
deceased sustained grievous injuries and succumbed to them.
Accordingly, one Baban Soma Wakude lodged a report about the
incident at Police Station Shirpur, which was registered vide Crime
No.100/2018 for the offences punishable under Sections 279 and 304
of the Indian Penal Code against the driver of the offending Tanker. The
police conducted the panchanama, carried out the investigation, and
filed a charge sheet against the Tanker driver.
4. It is further contended that the deceased was approximately 44
years old and owned a Tractor, which he used for agricultural purposes,
and earned an amount of Rs. 30,000 per month. He was also earning
Rs. 15,000 per month from the agricultural land. He also possessed a
Car, which was being used for travelling purposes on rent. Thus, he was
earning a total amount of Rs. 45,000/- per month. Claimant No.1 is the
widow, claimant Nos. 2 and 3 are the son and daughter, and claimant
No.4 is the mother of the deceased.
5. Respondent Nos. 5 and 6 are the driver and owner of the
Tanker, respectively, and the Tanker was insured with the appellant
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Insurance Company. Due to the loss of the deceased Gopal, the
claimants have filed a petition for claiming compensation of
Rs. 40,00,000/- against the appellant and respondent Nos. 5 and 6, as
they are jointly and severally liable to pay the said compensation.
6. Respondent Nos. 5 and 6, though served, did not appear;
hence, the claim petition was proceeded ex parte against them.
7. Respondent No.3 (herein appellant) filed the written statement
and resisted the claim on the ground that the driver of the Tanker was
not holding a valid driving licence and thereby respondent No.6
committed a breach of the terms and conditions of the policy; hence, it
is not liable to pay the compensation. It has denied the averments in
the petition in toto and, therefore, prayed for dismissal of the petition.
8. After considering the pleadings of both parties, the Tribunal
framed issues. Issue No.1 was recast. Pursuant to the issues, the
claimants adduced their evidence. They examined Claimant No.1 and
proved the documents on record, and then closed their evidence.
However, respondent No.3 did not adduce any evidence in support of
its defence, but filed a pursis stating that it does not want to lead
evidence.
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9. After appreciation of the evidence and considering the
documents on record, the Tribunal held that the appellant and
respondent Nos. 5 and 6 are jointly and severally liable to pay the
compensation to the claimants to the tune of Rs. 20,25,000/- along
with interest @ 6% p.a.
10. After hearing learned counsel for both parties and going
through the original record and proceedings, the following points arise
for consideration :
(i) Whether the appellant has proved that the owner of the
tanker/respondent No.6 has committed a breach of the
terms and conditions of the insurance policy?
(ii) Whether the amount of compensation awarded under the
head of love and affection and consortium is excessive?
(iii) Whether any interference is required in the impugned
judgment and award ?
11. Mr. B.P. Bhatt, learned Advocate for the appellant, vehemently
contended that the driver of the Tanker was not holding valid driving
licence and thereby the owner of the Tanker has committed breach of
terms and conditions of the insurance policy, and on that ground alone,
the appellant is required to be exonerated; alternatively he submitted
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that at the most the appellant would be liable to pay compensation to
the claimants and recover the same from the owner of the Tanker.
However, the Tribunal has not considered the defence of the insurance
company in its proper perspective and erred in discarding the same. As
such, he urged that the insurance company is not liable to pay
compensation to the claimants.
12. As against this, Ms. S.H. Bhagat, learned Advocate for the
respondent Nos. 1 to 4/original claimants, has submitted that the
appellant has not led any evidence in support of its case and thereby
failed to prove that the driver of the offending Tanker was not holding
a valid licence. Therefore, the findings recorded by the Tribunal are just
and proper; hence, no interference is warranted in them.
13. On perusal of the record, it evident that the appellant had not
come with a specific defence that driver of the Tanker was not holding
the valid driving licence and, therefore, insurance company is not liable
to pay compensation, but, in the written statement, he has vaguely
stated that the claim is liable to be dismissed on account of breach of
terms and conditions of the policy as the driver of the Tanker was not
having the valid driving licence at the time of accident. However, the
appellant has not adduced any evidence in support of its defence. Had
7 FA412.23.odt
it been the fact that if it were a specific defence of the appellant, then
certainly it would be incumbent on it to make an application under
Order XIV Rule 5 of the Civil Procedure Code to the tribunal to frame
the additional issue in that regard as it was necessary to determine the
controversy between the parties regarding the breach of policy, but the
appellant failed to do so. Moreover, the appellant did not put the
suggestion to the claimant No.1 during her cross-examination
regarding the breach of the policy by the owner of the Tanker. The said
facts also lead to drawing an adverse inference about the defence of the
appellant. Even assuming that the issue was not framed, in such an
eventuality, the appellant was also not restrained or prohibited from
adducing the evidence in support of its defence. But it was at liberty to
adduce evidence in support of its defence to demonstrate that the
driver of the offending Tanker was not holding a valid driving licence at
the time of the accident, and thereby the owner of the Tanker had
committed a breach of the policy. However, the appellant failed to
adduce any evidence in support of its defence.
(a) Similarly, during the argument before the Tribunal, the
Advocate for the insurance company did not raise the said issue. Had it
been the fact that if the appellant’s crucial defence were of about the
breach of terms and conditions of the Policy, then certainly they would
have taken the appropriate steps before the Tribunal for framing the
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additional issue as well as leading the evidence in support of their
defence, but the appellant neither filed a written application for
framing the additional issue nor led any evidence in support of their
evidence. Considering the above discussion, it is apparent that the
burden lies on the appellant to demonstrate that respondent No. 6 has
committed a breach of the policy; in such an eventuality, it was
incumbent on them to prove this fact by adducing cogent evidence.
However, they failed to discharge the burden that lies on it. In such
circumstances, non-framing of the issue by the Tribunal would not
cause prejudice to the appellant’s rights. Thus, it is evident that the
appellant failed to prove that the driver of the Tanker was not holding
a valid driving licence; thereby, respondent No. 6 has committed a
breach of the policy. Therefore, I do not find any substance in the
argument of the learned Advocate for the appellant in that regard.
Hence, I answer point No.1 in the negative.
14. Mr. Bhatt, learned Advocate for the appellant, contended that
the Tribunal has erred in awarding excess compensation on the point of
love and affection as mentioned at Sr. No.7 of the table in para no.20 of
the judgment, for which the claimants are not entitled. To substantiate
his contentions, he has relied on the judgments of the Hon’ble Apex
Court in the cases of Shriram General Insurance Co. Ltd. v. Bhagat Singh
9 FA412.23.odt
Rawat and others, 2023 ACJ 2330 and Savitribai and others v. Divisional
Manager, National Insurance Co. Ltd., 2024 ACJ 497 . Hence, he urged that
the claimants are not entitled to the compensation as awarded under
the said head, and therefore, it should be liable to be reduced.
15. On the other hand, Ms. S.H. Bhagat, learned Advocate for the
respondents No. 1 to 4, submitted that as per the judgment in Magma
General Insurance Co. Ltd v. Nanu Ram, 2018 ACJ 2782 (SC) as well as the
judgments cited by the learned Advocate for the appellant, the
claimants are entitled to the compensation as awarded under the head
of love and affection/filial consortium and, therefore, no interference is
called for in the impugned judgment and award.
16. Perused the judgment in the case of Bhagat Singh Rawat and
others (supra), wherein in paragraph 7, the Hon’ble Apex Court has
observed that
“As per the dictum laid down in the case of Pranay Sethi,
the claimants are entitled to the amount of Rs. 50,000/-
and Rs. 40,000/- respectively under the two heads. The
total amount is Rs. 90,000/- is liable to pay.”
As per the judgment and award impugned, the amount of Rs.
1,00,000/- was granted under the head of loss of love and affection
and Rs. 25,000/- was granted under the head of loss of consortium.
10 FA412.23.odt
17. To determine the above controversy it would be proper to refer
the judgment in the case of United India Insurance Company Limited v.
Satinder Kaur Alias Satwinder Kaur and others, (2021) 11 SCC 780 , wherein
the Three Judges Bench of the Hon’ble Apex Court, after considering
the ratio laid down in the case of Pranay Sethi as well as Magma General
insurance Co. Ltd. (supra), held that –
“To provide uniformity with respect to the grant of
consortium, and loss of love and affection, after
considering the various orders of the High Courts as well as
the Tribunals on the said points, the Hon’ble Apex Court
has recognised three conventional heads under which
compensation can be awarded viz. loss of estate, loss of
consortium and funeral expenses. The loss of consortium
head further divided in three categories; spousal
consortium, parental consortium, and filial consortium and
observed that under these three heads, the claimants are
entitled for the loss of consortium and in the said judgment
they have granted an amount of Rs. 40,000/- under the
head of spousal consortium, Rs.40,000 X 3 = Rs.1,20,000/-
under the head of parental consortium as there were three
children and under the head of filial consortium the surviving
parents is entitled to Rs.40,000/- each.
As per the above mandate in the case at hand, under the head
of spousal consortium claimant No.1 is entitled for compensation of
Rs.40,000/-, under the head of parental consortium claimant Nos.2 and
3 are entitled for compensation of Rs.40,000/- X 2 = Rs.80,000/- and
claimant No.4 being the mother is entitled for compensation of
Rs.40,000/, under the head of filial consortium, thus in total they would
entitle to Rs.1,60,000/- under the head of consortium and the Tribunal
11 FA412.23.odthas granted total compensation under the head of love and affection
and consortium of Rs.1,25,000/- i. e. less than the above amount as
calculated. Therefore, I do not find substance in the argument
advanced by the learned Advocate for the appellant in that regard; so
also, the judgments relied on by him in support of his arguments are of
hardly any assistance. Hence, I do not find substance in the ground
raised by the appellant in that regard. Thus, I answer point No.2 in the
negative.
18. Thus, to sum up the above discussion, it appears that the
judgment and award passed by the Tribunal are just and proper, and no
interference is called for in it in the present appeal. Hence, I answer
point No.3 in the negative.
19. As a result, the appeal, being bereft of merit, stands dismissed.
The parties shall bear their own costs.
( ABHAY J. MANTRI, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 19/06/2025 10:36:39