Bombay High Court
Prabha W/O Narayan Sonawane And Ors vs Icici Lombard Insurance, Icici Lombard … on 8 January, 2025
2025:BHC-AUG:2085
1 934 Judgment in fa 855-22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.855 OF 2022
1. Prabha w/o Narayan Sonawane,
Age : 43 years, Occu.: Household
2. Sandeep s/o Narayan Sonawane,
Age : 21 years,Occu.: Education
3. Komal d/o Narayan Sonawane,
Age ; 19 years, Occu.: Household,
All R/o.: Bhorkheda, Tq. Bhokardan,
District : Jalna ... APPELLANTS
(Orig. Applicants)
VERSUS
1. ICICI Lombard Insurance,
ICICI Lombard House, 414,
Veer Savarkar Marg,
Near Sinddhi Vinayak Temple'
Prabhadevi, Mumbai- 400025
2. Amol s/o Eknath Kale,
Age : Major, Occu. Private Service,
R/o.: Shivana, Tq. Sillod,
District : Aurangabad
3. Narayan s/o Shrirang Sonawane,
Age : Major, Occu. Nil
R/o.: Bhorkheda, Tq. Bhokardan,
District : Jalna ... RESPONDENTS
(Ori. Respondents)
....
Mr. Sandeep N. Lute, Advocate for the Appellants
Mr. Omprakash V. Waghmare, Advocate for Respondent Nos.2 & 3
....
2 934 Judgment in fa 855-22
CORAM : SANJAY A. DESHMUKH, J.
DATED : 08/01/2025.
ORAL JUDGMENT :
1. This appeal is preferred against judgment and award passed
by the learned Member, Motor Accident Claim Tribunal,
Aurangabad (hereinafter referred to as ‘the Tribunal’) in M.A.C.P.
No.408 of 2016, dated 13/12/2021.
2. Claim :
i) Sagar Sonwane, 21 years old, son of appellant No.1/
applicant No.1 was a pillion rider travelling by the motorcycle
bearing registration No. MH-21 AY-6615, which was owned by
respondent No.3. Respondent No.2 was riding that motorcycle in a
rash and negligent manner. While overtaking, he collided with
another motorcycle bearing registration No. MH-20-DH-2510. The
rider of that motorcycle died on the spot. Sagar sustained serious
injuries. He was admitted in A.I.M.S. hospital, Aurangabad in ICU
from 15/01/2016 to 25/02/2016. Thereafter, he was shifted to
Government Hospital, Aurangbad. However, on 01/03/2016
during treatment, he succumbed to the injuries.
3 934 Judgment in fa 855-22
ii) A crime No.19 of 2016 came to be registered against
respondent No.2. A post-mortem was conducted and the dead body
of Sagar was handed over to his parents.
iii) According to the applicants / claimants Sagar was doing
a private job at Sainath Krushi Seva Kendra and earning
Rs.7,000/- per month.
iv) The appellant No.2 is brother and appellant No.3 is
sister of Sagar. The appellants / claimants were depending on his
income of salary. They prayed for compensation of Rs.14,52,000/-.
3. Respondent No.1- Insurance company strongly opposed the
claim and denied the material contentions raised in the appeal. It
is contended that respondent No.3, who is the owner of the
motorcycle had committed breach of conditions of the insurance
policy of motorcycle . The motorcycle was driven by deceased
Sagar. Therefore, the appellants are not entitled for compensation
as the policy is third party policy. It is prayed for dismissal of the
appeal.
4. Respondent Nos.2 and 3 the driver and owner of offending
motorcycle also opposed and denied the claim. They submitted
that the said motorcycle was insured with respondent No.1. It is
4 934 Judgment in fa 855-22
lastly contended that respondent No.1 – Insurance company is
liable to pay the compensation to the appellants.
5. The learned Tribunal held that negligence of rider of
motorcycle is not proved and the claim application was dismissed.
6. The learned counsel for the appellants submitted that there is
sufficient evidence on record to prove the occurrence of accident,
however, it was not properly appreciated by the learned Tribunal.
He further pointed out that the judgment in Motor Accident Claim
Petition No.202 of 2016 dated 09/08/2018 decided by the same
learned Tribunal but by different presiding officer, in which the
claim of the dependents of another motorcycle rider, who died in
the same accident, was allowed and awarded with compensation of
Rs.8,77,450/-. He submitted that the appellants’ evidences were
not properly appreciated by the Tribunal. The reasons and findings
of the learned Tribunal are not legal and correct. He lastly,
submitted to allow the appeal, set aside the impugned judgment
and award by awarding compensation.
7. The learned counsel Mr. Omprakash Waghmare for
respondent Nos.2 and 3 strongly opposed the appeal. He
5 934 Judgment in fa 855-22
submitted that reasons and findings of the Tribunal are legal and
correct and it does not require interference. He submitted to
dismiss the appeal being devoid of merits.
8. Following points emerged for consideration:
i) Was it proved by the appellants / claimants
that Sagar died in the vehicular accident and
they were dependent on his income ?
ii) Are the impugned judgment and award
illegal, incorrect and requires interference ?
9. The learned Tribunal held in para 38 of impugned judgment
that there is no evidence of rashness and negligence of rider of
motor cycle. The accident is not proved. The negligence need not
be proved.
10. Such cases are to be decided summarily on preponderance of
probabilities and strict proof is not necessary. The rider of the
motorcycle is prosecuted for rash and negligent driving of it by
which Sagar was travelling as pillion rider. Appellant (AW-1)
deposed mostly as per the pleading of appellants her evidence is
not shaken in the cross-examination. The accident report Exhibit-
51, spot panchanama Exhibit-52, post-mortem report Exhibit-57
6 934 Judgment in fa 855-22
and inquest Exhibit-56 which are not disputed by the respondents,
it is proved that said vehicular accident was occurred and Sagar
died due to the injuries suffered by it. No eye witness is necessary
for proving it. However, Insurance company failed to prove that
Sagar was riding that motorcycle and therefore Insurance company
is not liable to pay compensation as there is breach of the
conditions of insurance policy of the offending motorcycle. The
learned Tribunal erred in holding that there is no evidence about
rashness and negligence on the part of the rider of the motorcycle
by which Sagar was travelling as a pillion rider when rider
respondent No.1 is prosecuted for rash and negligent driving.
There is no any independent evidence to hold that Sagar was riding
that motorcycle and hence the appellants are not entitled for the
compensation. The appellants’ evidence is not disproved by
respondent No.1 – insurance company failed to prove the said
defence.
11. As far as driving license of respondent No.2 is concerned, it is
proved by the evidence of respondent No.1 that he was having light
motor vehicle licence only. It means he was able to drive vehicle. It
is not necessary that there shall be license to drive the motorcycle
of particular type in each case as per law laid down by the
7 934 Judgment in fa 855-22
Honourable Supreme Court S. Iyyapan Vs. United India
Insurance Company Limited and another, reported in, (2013) 7
SCC 62 and National Insurance Company Limited Vs. Swaran
Singh and others, reported in, AIR 2004 SC 1531. Hence,
evidence of the respondent No.1 is not helpful to it in this regard.
Further, the claim of parents of rider of the another motorcyle is
allowed by the Tribunal in MACP No.202 of 2026 by judgment and
award dated 9th August, 2018.
12. The learned counsel for the appellants submitted that though
it is case of composite negligence, the responsibility of respondent
No.1 – insurance company cannot be denied in view of the
judgment of this Court in the case of HDEC CHUBB General
Insurance Co. Ltd. Vs. Sau. Archana w/o. Suhas Dandawate &
Ors., reported in, 2024(1) ALL MR 184, in which this Court has
held as under:-
“The liability in the case of composite negligence,
normally should not be apportioned, as both the
wrongdoers are jointly and severally liable for the
whole loss. It is the choice of the petitioner either
to claim compensation from both the tort feasors
or any of them. Thus, the tentativeness for the
purpose of contribution between two joint tort
8 934 Judgment in fa 855-22feasors do not at all affect the right of the
petitioner to recover the full damages.”
13. Considering the matter before this Court and after re-
appreciation of entire evidence, this Court is of the view that the
insurance company is liable to pay the compensation to the
claimants jointly and severally in view of the valid insurance policy.
The breach of the policy condition is not proved by it. The learned
Tribunal erred in this regard and wrongly rejected the claim of the
claimants.
14. The dependency of the appellants is proved. His income as
deposed by applicant No.1- Prabha (AW-1) and Ajay Patni (PW-4) is
proved that deceased Sagar was earning Rs.7,000/- per month and
all the appellants were depending upon his income. It is not
disproved that the appellants are dependents and therefore, they
are certainly entitled for compensation.
15. The salary of deceased Sagar was of Rs.7,000/- per month is
proved from the evidence of witness Shubham Raut (AW-2). The
Sagar was of 21 years old and unmarried. Therefore, the half of his
monthly income is to be deducted towards his personal expenses.
After deducting half of his monthly income towards his personal
9 934 Judgment in fa 855-22
expenses i.e. Rs.3,500 X 12, the yearly income of the deceased
Sagar comes to Rs.42,000/-. The relevant multiplier of 17 is
applicable to the case of the appellants. After applying multiplier of
17 to the annual income of Rs.42,000/-, the loss of earning of
deceased Sagar comes to Rs.7,14,000/-. In addition to it, the
appellants are entitled for Rs.10,000/- for fetching the dead body to
their house and for funeral expenses. They are also entitled for
Rs.2000/- for loss of property and Rs.50,000/- for loss of love and
affection and company.
16. From the evidence of Ajay Patni (CW-4) who works as an
Accountant at A.I.M.S. Hospital, Aurangabad, it is proved that
hospital bill of treatment of deceased Sagar was of Rs.1,78,000/-,
which was paid by the applicants. From evidence of Pawansing
Rajput (CW-5) it is proved that he has received medicine bill of
treatment of deceased Sagar of Rs.3,39,622/-. Thus, total amount
of medical bills and hospital bill of deceased Sagar is of
Rs.5,17,622/-. The appellants are entitled for it.
16. As per the precedential law of National Insurance Co. Ltd
vs Pranay Sethi and others, reported in AIR 2017 SC 5157, the
claimants are entitled for 50% i.e. Rs.3,57,000/- amount out of the
10 934 Judgment in fa 855-22
compensation amount as loss of future prospectus. The appellants
are thus entitled for total amount of compensation of
Rs.16,50,622/-.
18. For the reasons discussed above, the evidence of respondent
No.1 and the argument of learned advocate for respondent Nos. 2 &
3 is not acceptable that claim application cannot be allowed as
discussed and held above on re-appreciation of entire evidence with
matter before this court, the reasons and findings in the impugned
judgment and award are certainly illegal and incorrect. It requires
interference and it deserves to be set aside. The impugned
judgment and award deserves to be set aside. The appeal deserves
to be allowed. The claim deserves to be allowed. Therefore, point
Nos.(i) and (ii) are answered in the affirmative. Hence, following
order.
ORDER
1. The appeal is allowed and the impugned judgment
and award is set aside. The claim of appellants is
allowed.
2. The appellants / claimants are entitled for
compensation of Rs.16,50,622/- (Sixteen lakhs
fifty thousand six hundred and twenty two only)
with @ 9% p.a. interest from the date of filing of
the appeal till realization of the entire amount.
11 934 Judgment in fa 855-22
3. Out of the said amount, Rs.2,00,000/- (Two lakhs)
each be deposited in the fixed deposit in the name
of appellant Nos.1 to 3 for five years only in any of
the nationalized bank.
4. Rest of the amount be paid to the claimants
accordingly.
5. The appellants / claimants are directed to pay
deficit court fees on enhanced amount of
compensation.
6. Record and Proceeding be sent back.
( SANJAY A. DESHMUKH, J. )
VS Maind/-
