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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.2 OF 2004
National Insurance Co. Ltd.,
Through its Divisional Manager,
Division Office No.2,
Ajni Square, Nagpur. .......... APPELLANT
// VERSUS //
1. Smt. Maya wd/o. Ganesh Wath,
Aged about 23 years., Occ. Household.
2. Gajanan s/o. Ambaji Wath,
Aged about 62 years, Occ. Nil.
3. Smt. Shantabai w/o. Gajanan Wath,
Aged 58 years, Occ. Household.
4. Ku. Neha d/o. Ganesh Wath,
Aged 4 years, Occ. Student.
5. Nikhil s/o. Ganesh Wath,
Aged about 3 years.
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All r/o. Shahu Layout,
Plot No.13/2, Wadi, Nagpur.
Respondent nos.4 and 5 through
Respondent no.1 their natural
Guardian i.e. mother.
6. Gurdishsingh s/o. Gopalsingh
Channa, aged about 32 years,
Occ. Business, r/o. Madan Chowk,
Macchipal, Kamptee, Tah.
Kamptee, Distt. Nagpur.
7. Deleted. ..........RESPONDENTS
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Smt. Smita P. Deshpande, Adv. for the Appellant.
Mr.A.C.Dharmadhikari, Adv. for respondent nos.1, 4 and 5.
Mr.S.N.Kumar, Adv. for respondent nos.2 and 3.
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CORAM : A.P.BHANGALE, J.
DATE : 18.12.2013.
ORAL JUDGMENT :
1. This appeal is filed challenging the Judgment and Award dt.11.7.2003 passed in Claim Petition No.862 of 1998 whereby the learned Member of the Motor Accident Claims Tribunal, Nagpur awarded a sum of Rs.7,45,000/-
::: Downloaded on - 29/03/2014 18:44:43 :::3 fa2.04.odt only inclusive of interim compensation on the ground of no fault liability under Section 140 of the Motor Vehicles Act, 1988 together with interest @ 9 % p.a. from the date of petition till realisation.
2. The facts, briefly stated, are as under :
Ganesh - a Grocery Merchant, aged about 33 years old was proceeding by a Scooter bearing registration No.MH-31 U-532 on Nagpur-Kamptee road on 3.6.1998.
When the scooter was between Akashwani and Mohd. Ali petrol pump, the offending motor vehicle i.e. truck bearing registration no.MH-31 W-3492 dashed the scooter causing death of Ganesh. Ganesh left behind his widow, parents and two minor children aged about four years and three years respectively. According to the claimant, Ganesh was earning a sum of Rs.9,000/- per month out of grocery sale business and his wife was provided with the sum of Rs.5,000/- per month from the said business to run family.
Dependents included aged parents as well as minor ::: Downloaded on - 29/03/2014 18:44:43 ::: 4 fa2.04.odt children besides widow of the deceased. It is not in dispute that the offending motor vehicle i.e. truck was insured with the appellant on the date of the accident. The factum of accident is also not in dispute as found by the learned Member of the Tribunal. However, the learned Counsel for the appellant disputed quantum of the amount which is awarded on the ground that there was no reliable and acceptable evidence to believe that Ganesh (deceased) was running grocery business and was earning a sum of Rs.9,000/- p.m. The learned Counsel for the appellant, therefore, prayed that the appeal needs to be allowed as there was no evidence to award the sum of Rs.7,45,000/-.
She also contended that penal interest @ 12 % should have been granted as the Insurance Company is in possession of public money.
3. On the other hand, the learned Counsel for the respondents contended that there was adequate evidence before the Tribunal in the form of evidence of widow of the deceased who deposed about nature of business which the ::: Downloaded on - 29/03/2014 18:44:43 ::: 5 fa2.04.odt deceased was running during his life time. Maya w/o.
Ganesh Wath deposed before the Tribunal on the point of financial income of her husband. She stated that he was running a grocery shop and the shop was housed at their residence in the name and style as 'Ganesh Kirana Stores and Anaj Bhandar', in which they had engaged two servants and the net income of her husband was Rs.9,000/- p.m., of which Rs.5,000/- p.m. was made available to her per month after managing the other required expenses. She also relied upon the receipts regarding payment made to the Government on account of food grains permit, taxes, documents produced along with list (Exh.24) and photographs listed along with Exh.36 of the grocery shop. It may be noted that Ganesh and his family were residing in the building consisting of eight rooms, of which four rooms were let out and they were using four rooms for shop and as a residence of the family. It may also be noted that father of Ganesh was owning eight acres of land and 7/12 extracts (Exh. Nos.38 to 42) were produced. They also had milk business. According to widow of Ganesh, after death of her ::: Downloaded on - 29/03/2014 18:44:43 ::: 6 fa2.04.odt husband, she had to stay with her parents as parents of Ganesh were not providing any financial assistance to her and she had to maintain her minor children. Maya also deposed that her husband had obtained loan for opening grocery shop and the loan was repaid from the amounts from the L.I.C. She placed reliance upon the document (Exh.24) to prove this. This evidence which also refers to documents cannot be considered as unreliable or unacceptable even assuming that Ganesh was not income tax assessee in respect of income from the grocery shop.
4. Copies of the police papers such as F.I.R., spot panchanama, Post mortem reports were also produced before the Tribunal apart from the documents referred to by Maya, wife of the deceased. Father of the deceased Ganesh also entered in the witness box to depose that he along with his wife were dependent upon Ganesh.
5. Considering this evidence led before the Tribunal, it does appear that the Tribunal proceeded to consider it ::: Downloaded on - 29/03/2014 18:44:43 ::: 7 fa2.04.odt accepting it so as to calculate and award just and reasonable amount by way of compensation. Although it was claimed that income of the deceased Ganesh was in the sum of Rs.9,000/- p.m., calculations were made by the Tribunal on the basis that sum of Rs.5,000/- was income from the grocery business of the deceased, which was available to the family as dependents per month.
Considering the number of dependents of the deceased as mentioned in the evidence before the Tribunal and the calculations made by the learned Member of the Tribunal, when the reasons recorded by the learned Member are considered in juxta position with the evidence recorded and produced on record, it cannot be said that the amount awarded was exorbitant or unreasonable. The learned Member, however, ought not to have awarded penal interest @ 12 % p.a. which appears on higher side and excessive. I am only inclined to set aside portion of the order regarding direction to pay penal interest @ 12 % p.a. upon failure of the Insurer/Tribunal and the owner of the offending motor vehicle truck to pay the same within time.
::: Downloaded on - 29/03/2014 18:44:43 :::8 fa2.04.odt Considering the income as well as loss of dependency during expected span of life of the deceased, multiplier of "17" was applied bearing in mind that the deceased was only aged about 33 years of age at the time of his death and accident. Loss of consortium for widow was awarded in the sum of Rs.20,000/- and for loss of love and affection for family members and loss of estate, a sum of Rs.40,000/-
was awarded, while funeral and ambulance charges were awarded in the sum of Rs.5,000/- only. Even 1/3rd deduction was considered towards personal expenses from the compensation calculated on the basis of loss of dependency was Rs.5,000/- p.m. Thus, considering the facts and circumstances of the case, no valid ground is made out for interference with the impugned Award except to modify the direction for payment of penal interest in clause (3) of the operative order. The appeal is, therefore, partly allowed. Clause (3) of the operative order impugned herewith with a direction to pay penal interest @ 12 % p.a. need to be set aside. However, the appellant as well as the respondent/owner truck driver are jointly and ::: Downloaded on - 29/03/2014 18:44:43 ::: 9 fa2.04.odt severally liable to pay a sum of Rs.7,45,000/- inclusive of no fault liability to the claimants with interest @ 9 % p.a. from the date of petition till realisation of the amount.
The amount deposited by the appellant be transmitted to the Tribunal minus the amount awarded and already allowed to be withdrawn.
The learned Member of the Tribunal to pass appropriate orders pursuant to final Award for disbursal of compensation amount awarded to the claimants.
JUDGE jaiswal ::: Downloaded on - 29/03/2014 18:44:43 :::