Oral Judgment:

1. Heard the learned counsel for the parties.

2. The appellant Insurance Company challenges the judgment and award dated 15.05.2023 made by the Motor Accident Claims Tribunal, North Goa, at Panaji Goa, disposing of Claim Petition No.57/2016 by awarding the claimants i.e. respondent Nos.1 to 4 the total compensation of Rs.34,29,000/- along with simple interest at the rate of 6% per annum from the date of filing of the petition till full and final payment.

3. Mr Kakodkar submits that the finding regards negligence on the part of the bus driver i.e. first respondent suffers from perversity. He submitted that the bus driver had already turned at the circle and was about to access the side road. At this stage, the deceased, who was riding the Activa scooter in a rash and negligent manner collided with the bus thereby suffering fatal injury. He submitted that in such circumstances, the bus driver could not be said to have acted rashly and negligently. Mr Kakodkar submitted that in any event, this was a fit case for holding the bus driver and the deceased equally contributing to the accident and that this was a case of contributory negligence.

4. Mr Kakodkar submitted that the accident in this case occurred on 21.01.2008, but the claim petition was filed almost 8 years later, i.e., on 02.05.2016. He submitted that there was no explanation for this delay, and in any event, the Tribunal was not justified in awarding a 10% increase over the rates specified in National Insurance Company Limited Vs. Pranay Sethi and others((2017) 16 SCC 680).

5. Besides, Mr Kakodkar pointed out that there was an apparent error on the face of the record in calculating the compensation amount. Mr Kakodkar contended that there is no evidence to sustain the finding that the deceased was earning Rs.20,000/- per month.

6. Finally, Mr Kakodkar submitted that in this case the bus driver had no permit to ply the bus. The insurance policy clearly provided that the same would be subject to the bus having a valid permit. Therefore, he submitted that the appellant Insurance Company was not liable and, in any event, this was a fit case to make a pay and recover order.

7. The learned counsel Mr Menezes for respondent Nos.1 to 3 and Mr Gustavo Monteiro for fourth respondent submitted that there was overwhelming evidence on record in support of finding on rashness and negligence on the part of the bus driver. They submitted that if the bus driver's case about the bus being driven slowly was correct, there was no question of an accident. They pointed out that, even otherwise, the bus is a much larger vehicle than the Activa scooter, and therefore, the duty of care expected from the bus driver was much greater. They submitted that the bus driver, when entering the side road after turning at the circle, had to be extra conscious. They submitted that the evidence on record shows that all caution was thrown to the wind, thereby causing an accident in which the deceased succumbed.

8. The learned counsel for the respondents submitted that there was nothing wrong with the calculation or the award of the 10% increase provided in the case of Pranay Sethi (supra). They submitted that such an increase has been awarded only after 2017 and not with retrospective effect.

9. The learned counsel for the respondents submitted that no limitation period was prescribed for filing claim petitions. In any event, delay was satisfactorily explained and no proper pleadings were objecting to the entertainment of this petition on the ground of delay or laches. They pointed out that not even an issue was cast by the Tribunal. Therefore, they submitted that such an argument should not be entertained for the first time before this Court or in any event, such argument must be rejected.

10. The learned counsel submitted that they are not concerned with the issue of permit. However, this is a fit case in which the appellant Insurance Company must be directed to immediately pay the compensation amount to the first and fourth respondents.

11. The bus driver and bus owner were served through publication. The necessary affidavit of service has already been filed on record. Despite such service, they chose not to appear in this appeal.

12. The rival contentions now fall for determination.

13. On the issue of rashness and negligence, the Tribunal has considered all the evidence on record and has correctly held that the claimants have proved, on the test of the preponderance of probabilities, the issue of rashness and negligence.

14. The record shows that the bus is a much larger vehicle compared to the Activa scooter. The bus was turning around the traffic circle and entering the side road. Therefore, the duty of care expected from the bus driver was undoubtedly great.

15. Instead, by throwing caution to the wind, the bus driver dashed against the deceased and the deceased's Activa scooter. The deceased died at the spot. There is corroborative evidence in the form of panchanama, F.I.R. etc., which was filed against the bus driver. The bus driver was examined in this matter but could not establish that the accident was not on account of his rash and negligent driving or due to any reason attributable to the rider of the Activa scooter. All this is sufficient to sustain the finding about the rashness and negligence. Thus, no case is made out to interfere with the finding regarding the rashness and negligence.

16. The rider of the Activa Scooter could not be said to have contributed to the accident. He was on the straight road and it was expected of the bus driver not only to have seen the Activa scooter but also stop or slow down before entering the side road after turning around the traffic circle.

17. In so far as the calculation of compensation amount is concerned, the record indeed shows that this claim petition was filed eight years after the accident. Though, at this stage, it would not be appropriate to hold that very institution of such petition was barred by limitation or in any event by principle of delay and laches, still the claimants cannot get premium on account of their own delay.

18. The portion of the impugned award to the extent it enhances the compensation limits for matters like consortium, loss of estate, and future expenses is concerned, it would not be appropriate to make an increase of 10% over and above the rates referred to in Pranay Sethi (supra). That apart, there is a calculation error apparent on the face of the record, as a 25% deduction from the annual income of Rs. 3,00,000/- is taken at Rs. 2,40,000/- instead of Rs. 2,25,000/-.

19. The evidence on record shows that the deceased was a qualified pastry chef who was working on a cruise liner, hardly two years before he set up his establishment under the name and style of 'pastry chef. There was other evidence on record, based upon which the finding that the deceased was earning Rs. 20,000/- per month could be sustained. Even otherwise, this Court finds this finding to be fair and reasonable in the facts and circumstances of this case.

20. Upon making the above correction/modification, the compensation amount in this case would come to Rs. 31,15,000/-and not Rs. 34,29,000/-. The award is liable to be modified to this extent as well.

21. At this stage, the learned counsel for respondent Nos. 1 to 4 state that if respondent Nos. 2, 3 and 4 consent to the first respondent, i.e., the widow having the entire compensation, they may be granted liberty to file their N.O.Cs/affidavit before the Registrar (Judicial) and some directions be issued to the Registrar (Judicial) to take cognisance of such NOCs/affidavit and pay the entire compensation amount together with interest thereon to the first respondent, i.e., the widow. The Registrar (Judicial) is directed to accept N.O. Cs/affidavit and act accordingly.

22. As regards the issue of bus plying without any permit, though such issue was raised by the appellant, it appears that such issue has not even been considered by the Tribunal in the impugned judgement and award. Mr Kakodkar referred to the pleadings by which this issue was raised and pointed out that the Assistant Transport Director, Government of Goa, was examined in support of this plea. This witness agreed that no permits were issued to the bus. To the same effect was the evidence in the form of a response to the right to information query raised by the appellant Insurance Company. Mr Kakodkar also referred to insurance policy to submit that there was specific exclusion of liability where insured vehicle plies without a permit.

23. Accordingly, a case is made out for remanding the issue of whether there was a breach of insurance policy because the bus never had any permits and insurance policy covered only the vehicles having necessary permissions and permits. It would not be appropriate for this Court at this stage to decide this issue inter alia because the driver and the owner of the bus, despite the substituted service, has chosen not to appear. Secondly, the appellant Insurance Company is trying to take advantage of an insurance policy drafted by itself, and therefore, it is possible for the respondents to argue the matter by invoking the rule of contra proferentem.

24. At this stage, it is not for this Court to go into the rival contentions. Suffice to note that since this issue has not been decided at all and some contentious issues are bound to arise in relation to this issue, the interest of justice would be best served if the matter regarding making a pay and recover order alone is remanded to the Tribunal for a fresh issue. Such a remand will not prejudice the claimants because the Appellant must pay the amounts first, and then, if a case is made out, recover this amount from the owner of the insured vehicle

25. Accordingly, this First Appeal is disposed of by making the following order:

                   (a) The compensation amount of Rs.34,29,000/- is modified and substituted with amount Rs.31,15,000/- together with interest at the rate of 6% per annum from the date of filing of the claim petition till its actual payment of this amount;

                   (b) The matter is remanded to the Tribunal to determine whether a pay and recover order should be made as between the appellant (Insurance Company) and the sixth respondent, i.e. the owner of the insured bus.

                   (c) The Tribunal should consider this issue after giving a full opportunity only to the appellant and the sixth respondent, as the claimants are not concerned with this issue of pay and recovery.

                   (d) The appellant (Insurance Company) will have to pay the compensation amount now determined to the claimants. The remanded matter is a dispute inter se between the appellant and the sixth respondent, whether a pay and recover order should be made in this matter.

                   (e) The claimants shall be entitled to withdraw the amount deposited by the appellant in this Court, together with interest, if any that shall accrue on this amount;

                   (f) By recording the consent of the learned counsel appearing on behalf of respondent Nos. 1 to 4 (claimants), it is ordered that the first respondent would be entitled to 50% of the compensation amount together with proportionate interest, and the balance 50% with proportionate interest will be equally distributed amongst respondent Nos.2 to 4.

                   (g) At this stage, the learned counsel for respondent Nos. 1 to 4 state that if respondent Nos. 2, 3 and 4 consent to the first respondent, i.e., the widow having the entire compensation, they may be granted liberty to file their N.O.Cs/affidavit before the Registrar (Judicial) and some directions be issued to the Registrar (Judicial) to take cognisance of such NOCs/affidavit and pay the entire compensation amount together with interest thereon to the first respondent, i.e., the widow. The Registrar (Judicial) is directed to accept N.O.Cs/affidavit and act accordingly.

                   (h) The learned counsel for the claimants/respondent Nos. 1 to 4 is to provide the registry with details of the above apportionment, bank accounts and identity documents. Based upon this, the registry to transfer the compensation amount into the bank accounts of respondent Nos. 1 to 4. This exercise must be completed within a maximum of two months from today.

                   (i) All rights and contentions concerning the aspects of pay and recovery are specifically kept open to be decided by the Tribunal upon remand.

                   (j) There shall be no order for costs.