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The Bombay HC Allows The Appeal Partially Regarding The Tribunal’s Order Of The Compensation Amount

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TITLE: National Insurance Co. Ltd. Vs Mrs. Lauretta Shashin Mogale And Ors.

CORAM: Hon’ble Justice Shivekumar Dige

DATE:  8th December, 2023.

CITATION: First Appeal No.1067 Of 2018

FACTS

On 26th July 2011, deceased Shashin Mogale was proceeding in his car bearing No. MH-14-CK-7387, he was on the way to his house. At that time, at about 1.55 am., a tanker bearing registration No.KA-01-C/2284 came from the opposite direction in rash and negligent manner and gave dash to the car of the deceased. Respondent No.4 was driving the said tanker. The deceased was admitted in the hospital but he succumbed to injuries. On the basis of evidence on record, the Tribunal has considered the salary of deceased at Rs.98700/- per month including arrears.

This appeal is preferred by the appellant-Insurance Company against the judgment and award passed by Motor Accident Claims Tribunal, Pune. The claimants have filed cross-objection for enhancement of compensation. It is the contention of learned counsel for the appellant that while calculating compensation, the Tribunal has considered arrears of salary of the deceased and, on that basis, compensation is awarded, which is not proper. Learned counsel further submitted that the accident occurred due to contributory negligence of the deceased. In the post- mortem report, it is mentioned that there was smell of alcohol. It shows that deceased was under the influence of liquor but this fact is not considered by the Tribunal.

It is the contention of learned counsel for respondent Nos.1 to 3/claimants that the Tribunal has deducted 30% future prospects as income tax, which is not proper. Learned counsel further submitted that consortium amount is not properly awarded, it be awarded. The Chemical Analysis Report is received after the conclusion of the trial. It is produced on record, it does not show that at the time of accident deceased was under the influence of liquor.

LAWS INVOLVED:

304A Of Indian Penal Code:  Causing Death By Negligence.

Workmen’s Compensation Act 1923

ISSUES:

  1. Whether there is a case of Contributary Negligence?
  2. Whether the compensation amount decide by the Tribunal was valid or not?

JUDGEMENT:

The Appeal is partly allowed as the Court has deducted arrears amount from salary of deceased as well as some allowance amount from the salary. The cross-objection is partly allowed. The claimants are entitled for enhanced amount of Rs. 1671227/- @ 7.5% interest per annum from the date of filing of claim petition till realisation of the amount. Out of this amount, Rs.1,80,000/- is consortium amount, the claimants are entitled for interest on this amount at 7.5% from 1st November 2017 till realisation of the same.

The appellant-Insurance Company shall deposit the enhanced amount along with accrued interest thereon within 8 weeks after the receipt of this order.

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Written by- Sanjana Ravichandran

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First-Time Offender’s Sentence Reduced Due to Commitment to Reform and Lower Socio-Economic Status: High Court of Delhi

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Title:  Mohd Nasim vs. The State

Citation: CRL.REV.P.296/2017

Coram: HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN

Decided on: 3-11-2023

Introduction:

The present criminal revision petition has been filed under sections 397/401 of the Code of Criminal Procedure, 1973, along with section 482 of the same Code. This legal action aims to challenge and set aside three specific legal orders and judgments: The order dated 27.03.2017, referred to as “the impugned order,” issued by the District and Sessions Judge of East, Karkardooma Courts (referred to as “the appellate court”). The judgment dated 17.03.2016, referred to as “the impugned judgment.” The order on sentence dated 15.07.2016, issued by the Metropolitan Magistrate-03, East, Karkardooma Courts (referred to as “the trial court”).These orders and judgments pertain to a criminal case that arose from the FIR numbered 151/2009, registered under sections 279/337 of the Indian Penal Code, 1860 (IPC) at PS Mandawli Fazad Pur. The purpose of this criminal revision petition is to seek a review and potentially set aside these legal decisions.

Facts:

The facts of the case are such that, The case pertains to an incident in 2009, where a road accident occurred involving a rickshaw used for carrying goods and a blue line bus with the registration number DL 1PB 9786 (referred to as “the offending vehicle”). The Investigating Officer, SI Yad Ram, arrived at the accident scene after receiving information about the incident. A statement from the complainant, Mohd. Sabir was recorded, in which he described that the rickshaw he was travelling in was hit from behind by the offending bus, driven in a rash and negligent manner.

As a result of the collision, the deceased, Mahesh, fell on the road, and the rear tire of the bus ran over him, causing injuries that led to his subsequent death during treatment. An FIR was registered based on the statement of the complainant, initially under sections 279/337 IPC, and later section 304A IPC was added due to the death of the deceased. The petitioner, identified as Mohd. Nasim was charged as the driver of the offending bus. The trial court conducted proceedings, and the prosecution presented its evidence, including 11 witnesses, including the complainant and the Investigating Officer. The petitioner pleaded innocence and claimed false implication during his statement.

The trial court, in its judgment, convicted the petitioner for offences under sections 279/304A IPC and imposed sentences, including imprisonment and compensation to be paid to the legal heirs of the deceased. The petitioner was also sentenced for an offence under section 279 IPC. The sentences were ordered to run concurrently.

 

 

Court Analysis & Judgement:

The Court concluded that, The present First Information Report (FIR) dates back to 2009, and the petitioner has been involved in legal and judicial proceedings related to this FIR since then. The petitioner is described as a first-time offender with a clear criminal record. They belong to a lower socio-economic stratum and are the primary provider for their elderly parents. The legal heirs of the deceased in this case have already received compensation. The petitioner has expressed a commitment to reform themselves. The petitioner’s actions, characterized as rash and negligent driving, led to the untimely death of a young man. This incident caused irreparable loss to the victim’s family.

 After considering all the facts, the court has decided that justice would be served by reducing the sentence imposed on the petitioner for the offence under section 304A of the Indian Penal Code (IPC) to simple imprisonment for six months. The remaining part of the sentence, as specified in the order on sentencing dated 15.07.2016, is to be maintained.  The court has directed the petitioner to surrender before the trial court on 20.11.2023 at 2:30 PM to serve the remaining portion of the sentence. The judgment is to be provided to the petitioner and sent to the relevant trial court for their information.

The present petition, along with any pending applications, has been decided and disposed of accordingly.

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Written By: Gauri Joshi

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Just Because Death Under Employment Was Not Because Of Accident It Doesn’t Exempt One From Compensating The Deceased: High Court Of Kerala

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Citation: MFA (ECC) No.136 of 2018

Decided On: 28TH DAY OF OCTOBER 2023

Coram: HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

Introduction:

This appeal is an appeal under Section 30 of the Employees Compensation Act, 1923. The appellants through the appeal assail the order of Employees Compensation Commissioner. The appellants are the widow and daughter of Sri.Vasu who died on 01.02.2006 due to an accident.

Facts:

The deceased husband of the appellant was driving taxi car bearing Registration No.KEH 9783 along the Swaraj Round, Thrissur on the said date. At about 12.15 p.m he felt chest pain and collapsed resulting in the car dashing against an electric post. He was rushed to the Aswini hospital, Thissur, but he succumbed to the injuries. The doctor who examined him informed that Sri.Vasu died due to heart attack.

The appellants filed a claim petition before the Employees Compensation Commissioner under the Employees Compensation Act claiming compensation from the 1st respondent, who is the owner of the vehicle and the 2nd respondent, the insurer. The 1st respondent did not chose to contest the matter. The 2nd respondent resisted the claim on several grounds. It was contended that the 1st respondent was not the owner having transferred the vehicle in favour of Sri.Vasu as early as on 17.03.2004. The further contention of the 2nd respondent was that the death was due to heart attack and not on account of an accident arising out of and in the course of the employment.

The appellant failed to discharge their initial burden that the death of Sri.Vasu was the result of an accident and in the course of his employment. In the light of that finding, other issues were not answered and the application was dismissed.

Court’s Analysis and Judgement:

The Apex Court in Param Pal Singh v. National Insurance Co. Ltd and another [2013 ACJ 526] considered a similar question. In the above case, it has come out that the deceased was driving cars for about 40 years. He was aged 60 years at the time of death. A person involved in the avocation of driving for such a long period suffered a heart attack while he was driving the car. The heart attack he suffered while driving had resulted in the accident of his car hitting an electric post. The proximate reason for the death may be heart attack. But, had he not suffered a heart attack, such an accident would not have happened. The view taken by the Apex court is that the employer was liable to compensate even if the deceased was not actually driving the truck. When in the course of his driving, he felt discomfort and later, in the hospital, he died due to heart disease, he being a driver for long years subjected to its stress and strain, the death would amount an accident arising out of and in the course of his employment.

Accordingly, the order of the Employees Compensation Commissioner, Thrissur, dated 25.01.2018 in E.C.C No.405 of 2016 is set aside by holding that the appellants are entitled to claim compensation on account of the death of Sri.Vasu in the accident occurred on 01.02.2006

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Written by- Sushant Kumar Sharma

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Madras High Court Orders Insurance Company to recover Compensation from Insurer.

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TITLE: TATA AIG General Insurance Co Ltd  Vs. Saravanan.

Decided On: August 30, 2023.

Civil Miscellaneous Appeal No.626  and C.M.P. No. 4479 of 2022.

CORAM:  Hon’ble Mr. Justice Sunder Mohan.

Facts:

The deceased Subasakthi was a driver by profession and was driving TATA Ace Vehicle. While he was driving since the cows ran across the road, to avoid hit against them, he turned the vehicle towards left side, the vehicle turned turtle and resulted in the accident. He was initially admitted at Nagapattinam Government Hospital. Subsequently, he was referred to Thiruvarur Medical College Hospital, where he was declared as brought dead. Hence the respondents 1 and 2 filed claim petition claiming compensation against the appellant and the 3rd respondent the appellant/Insurance Company filed counter statement denying all the averments made by the respondents 1 and 2 in the claim petition and stated that the accident had not occurred due to the rash and negligent driving of the 3rd respondent’s vehicle.

Legal Analysis and Decision:

The deceased was the tort-feaser. The evidence adduced before the Tribunal and the fact that the respondents 1 and 2 filed a claim petition under Section 163-A of Motor Vehicles Act confirms the said fact. The Tribunal however, strangely fixed 20% contributory negligence on the deceased after holding that he was the tort-feaser and held that the 3rd respondent and the appellant were liable pay to 80 % of the compensation amount. This finding is without any basis and logic. As stated earlier, as seen from the evidence, the deceased had driven the offending vehicle (TATA Ace Van) in a rash and negligent manner and two persons who travelled in a two wheeler belonging to a third party involved in the accident died.

The fact is that the respondents 1 and 2 were unable to produce driving license of the deceased. The 3rd respondent/employer also could not produce the driving license. On the other hand, the 3rd respondent in his counter statement before the Tribunal had stated that the deceased had misled him and stated that he had valid driving license. Therefore, the finding of the Tribunal that the deceased did not have valid driving license cannot be faulted.

This Court is of the view that the Civil Miscellaneous Appeal deserves to be partly allowed and the compensation awarded by the Tribunal is reduced from 10,57,261/- to Rs.9,01,000/- together with interest rate at 7.5 per annum (excluding the default period if any) from the date of petition till the date the deposit. The appellant is directed to deposit the compensation amount, now determined by this Court within a period of four (4) weeks from the date of receipt of a copy of this Judgment, at the first instance and recover the same from the third respondent.

Conclusion:

The Court Concluded that Since the Deceased died in an accident and the respondents are entitle to claim the compensation from the appellant insurance company and recover the same from the insurer 3rd respondent.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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Delhi High Court Set aside the order passed by the Motor Accidents Claims Tribunal and held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

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Title: DILIP KUMAR SAH versus PARSHOTAM ALIAS PURSHOTAM LAL (SINCE DECEASED) THROUGH LRS & ANR.

Date of decision:18thJuly, 2023

+ MAC.APP. 133/2021

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi High Court set aside the order passed by the Motor Accidents Claims Tribunal and held that there was no contributory negligence on the part of appellant and granted him the benefits of permanent disability and also held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

Facts of the case

In MACT case number 174/2017, captioned Sh.Dilip Kumar Sah v. Sh. Parshotam @ Purshotam Lal & Anr., the learned Motor Accidents Claims Tribunal issued an award on January 13, 2021, which is being challenged in this appeal.

The appellant’s two grounds for the limited challenge to the contested award are as follows:

  1. a) Despite neither the owner of the at-fault vehicle nor the insurance company having submitted a written statement alleging any contributory negligence on the part of the appellant, the learned Tribunal has assigned the appellant 40% contributory negligence, reducing the compensation granted to the appellant;
  2. b) Despite the fact that the appellant’s right lower limb was deemed to have a 41% permanent handicap, the appellant has not received any compensation for his future possibilities.

Analysis of the court

It is undisputed that neither the owner nor the insurance company provided the learned Tribunal with a written statement. The significance of pleadings cannot be understated, even if the learned Tribunal will only conduct an inquiry rather than a full-fledged trial as in a civil complaint. Therefore, the respondent did not blame the appellant for any contributory carelessness in their arguments. Only during the cross-examination of the appellant was the appellant prompted to describe how the accident occurred. The appellant vehemently refuted any allegation that he may have contributed to the catastrophe.

Reading the cross-examination of the appellant would reveal that he claimed to be riding a rickshaw across the main road from left to right. The same cannot, in my opinion, be regarded as contributory carelessness. Although the offending vehicle was being driven at a high speed and the driver was unable to control the vehicle or apply the brakes at the appropriate moment, the learned Tribunal, influenced by the foregoing, in the impugned Award assigned 40% of the negligence to the appellant.

The learned Tribunal manifestly erred in assuming that the appellant might be charged with contributory carelessness only on the basis of his cross-examination in the absence of any pleading assigning contributory fault to the appellant.

Therefore, the contested award is revoked to this degree.

On the subject of the appellant’s future prospects not being granted, reliance has once more been put on the appellant’s cross-examination, which has been reported above. Reading the cross-examination will reveal that the appellant was not questioned about whether the accident he sustained had any impact on his ability to earn money or do his job. According to his disability certificate, the appellant’s right lower limb has a 41% permanent impairment. The learned Tribunal determined that the appellant’s entire body had a 20% functional impairment. There is no argument against the erudite Tribunal’s conclusion.

In Pappu Deo Yadav (supra), the Supreme Court allowed for a 40% reduction in future possibilities. In my opinion, the appellant should be allowed that fair degree of loss of future chances under the circumstances of the current case as well. The appellant used to pedal the rickshaw by himself while conducting business at a weekly market selling clothing. The appellant is deemed entitled to compensation under the heading of loss of future prospect at the rate of 40% due to a permanent handicap to his lower limb. As a result, the impugned Award, to the extent that it denies the appellant compensation for the loss of future prospects, is set aside, and is modified granting such compensation. 

The learned Tribunal is required to reassess the amount of compensation due to the appellant under the provisions of the contested award as amended by the current ruling. On August 20, 2023, the parties must appear before the knowledgeable Tribunal. The awarded amount, including the augmentation directed under the current judgement, along with interest thereon, shall be disbursed in favour of the appellant in line with the schedule set down by the learned Tribunal upon deposit of the re-determined/enhanced amount.

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Written By – Shreyanshu Gupta

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