ORIENTAL INSURANCE CO LTD Vs. JAGUBAI GODSE

JUDGEMENT

(1.) The insurer of the vehicle involved in the accident has preferred this First Appeal for challenging the Judgment and Award dated 8th May, 2007 passed by the learned Presiding Officer of the Motor Accidents Claims Tribunal, Margao Goa, in a Claim Petition No. 198/2002 filed by the first to third Respondents under Section 166 of the Motor Vehicles Act, 1988 ( hereinafter referred to as "the said Act" ).

(2.) The case made out by the first to third Respondents/Claimants was that the deceased Raghunath alias Raghu Godse alias Ghodse alias Godve was riding his motorcycle on 9th May, 2002. He was proceeding from Margao towards Zuarinagar via Margao Cortalim road. At about 10.15 p.m., a Tata sumo which was driven by the 4th Respondent and owned by the 5th Respondent came from the opposite direction and gave a dash to the motorcycle of the deceased. Due to the impact of the accident, the deceased sustained injuries and he succumbed to the injuries. The Appellant is the insurer of the Tata sumo vehicle involved in the accident. The 4th and 5th Respondents ( the Respondent Nos. 1 and 2 in the Claim Petition ) filed their written statement contesting the claim of the first to third Respondents. The case made out in the written statement was that there was no negligence on the part of the 4th Respondent and the accident occurred due to the fault of the deceased. There was a written statement filed by the Appellant dealing with the merits of the Claim Petition in which a contention was raised that there was no negligence on the part of the driver of the Tata sumo vehicle. By the impugned judgment and award, the learned Presiding Officer of the Tribunal has held that the accident occurred due to the negligence on the part of the 4th Respondent who was driving the Tata sumo vehicle. The total compensation of Rs. 13,11,400/- was granted by the Tribunal along with interest at the rate of 9% per annum from the date of the filing of the Claim Petition.

(3.) The learned Counsel appearing for the Appellant pointed out that after recording of the evidence of the first to third Respondents, the evidence of original claimants was concluded. The Appellant found that the 4th and 5th Respondents did not come forward to contest the Claim Petition and, therefore, on 25th April, 2007 an application was made by the Appellant at Exhibit D-46 by invoking Clause (b) of the Section 170 of the said Act seeking leave to defend the Claim Petition. He pointed out that the said application was disposed of by an order dated 8th May, 2007 and the prayer made by the Appellant was rejected. He submitted that the order was passed on the said application on the very same day on which the judgment in Claim Petition was pronounced and, therefore, there was no opportunity to the Appellant to challenge the erroneous order passed on the application at Exhibit D-46. He submitted that the roznama of the proceedings shows that 4th and 5th Respondents ( the driver and owner of the Tata sumo ) did not appear when the Claim Petition was set down for recording of their evidence. He placed reliance on decision of a judgment of Gujarat High Court in the case of Oriental Insurance Co. Ltd. v. Rani Ben and Ors., 2008 ACJ 2436. He submitted that this was a case where the leave ought to have been granted under Section 170(b) of the said Act. He submitted that his application for grant of leave has been erroneously rejected and hence an Appeal under Section 173 of the said Act at the instance of the Appellant is maintainable. He submitted that even if the leave is granted, this is a case where the Appellant does not desire to lead any further evidence and, therefore, the Appeal be heard on merits. Coming to the quantum of compensation, he invited the attention of the Court to the Saral form of income tax of the deceased filed for the assessment year 2001-2002 ( financial year 2000-2001 ) which discloses that the income of the deceased from salary was Rs. 95,403/-. He submitted that for the assessment year 2002-2003 the claimants did not produce the copy of the return but only a copy of Form - 16 issued under the Income Tax Rules has been produced. He invited our attention to the cross examination of the first Respondent in which she has admitted that the gross salary payable to the deceased for the month of April, 2002 was Rs. 8572.30 and the net salary was Rs. 4592.30. He pointed out that in the cross examination the pay slip of the deceased issued by the employer for the month of April, 2002 was produced by the Appellant and that the widow of the deceased admitted the same. He pointed out that the widow admitted that for the month of March, 2002, the gross salary of her deceased husband was Rs. 7,563.90 and net salary was Rs. 3,370.90. He placed reliance on the decision of the Apex Court in the case of Asha and Ors. v. United India Insurance Co. Ltd. and Anr., 2008 2 SCC 774. He submitted that for the purposes of adopting proper multiplier, the net salary is required to be considered after deducting all the deductions made by the employer. He submitted that the net salary will have to be taken on the basis of the salary slip for the month of April, 2002, in as much as the accident occurred on 9th May, 2002. He submitted that the income shown in Form - 16 cannot be taken into consideration in as much as the admitted income of the deceased for the months of March and April, 2002 is not consistent with the figure mentioned in the Form - 16. Inviting our attention to the impugned judgment and award, he submitted that the learned Presiding Officer of the Tribunal has committed a gross error by taking the income at Rs. 14,000/- per month for the purpose of calculating the multiplicand. He submitted that apart from the fact that the income taken is on the higher side, a sum of Rs. 50,000/- towards the pain and suffering could not have been granted by the Tribunal.