1 fa211.09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.211 OF 2009
The Branch Manager,
Oriental Insurance Company Limited,
M.C.V.O-14, Mumbai through the
Senior Divisional Manager, Nagpur
Divisional Office-1, Mount Road,
Sadar, Nagpur. .......... APPELLANT
// VERSUS //
1. Smt. Shanta wd/o. Khushal Dongre,
Aged about 24 years, Occ.Household.
2. Kunal s/o. Khushal Dongre,
Aged about 1 year, Occ. Nil.
3. Hina d/o. Khushal Dongre,
Aged about 3 months, Occ.
Petitioner Nos. 2 and 3 are minors
through Natural Guardian petitioner
no.1.
R/o. Madhavrao Daulatrao Dhole,
c/o. Sudhakar Nimkar, at post
Sonegaon, Tahsil Kalmeshwar,
District Nagpur.
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4. Ramprasad s/o. Mahadeo Gupta,
Aged major, Occ.owner, r/o.
Doaba Roadways, G.E. Road,
Dist. Doro (M.P.).
5. Deleted as per order of Registrar
(Judicial), dt.9.2.2010.
6. Shobha w/o. Jagannath Dongre,
Aged about 50 years, Occ.Nil.
7. Ku. Kusum d/o. Jagannath Dongre,
aged about 17 years, Occ. Student.
8. Ku.Durga d/o. Jagannath Dongre,
aged about 15 years, Occ. Student.
9. Bharatram s/o. Jagannath Dongre,
aged about 18 years, Occ. Student.
All r/o. Umred, Tq. Karanja Ghadge,
Distt. Wardha. .......... RESPONDENTS
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Mr.D.N.Kukday, Adv. for the Appellant.
Mrs.M.H.Pathade, Adv. for Respondent Nos.1 to 9.
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Date of reserving the Judgment : 22.7.2015
Date of pronouncing the Judgment : 21.8.2015.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. This appeal by the Insurance Company questions legality and validity of the impugned Judgment and Award passed in Claim Petition No.1054 of 1999 by the Member, ::: Downloaded on - 24/08/2015 23:56:39 ::: 3 fa211.09.odt Motor Accident Claims Tribunal, Nagpur on 25.10.2005 thereby allowing the Claim Petition with costs and directing respondent nos. 1 and 2 therein to pay Rs.9,15,000/- to the petitioners and respondent nos. 4 and 7 jointly and severally with future interest @ 7.5 % p.a. from the date of petition till realisation excluding future interest from 4.10.2000 to 7.7.2003.
2. Brief facts are that, on 17.7.1999 deceased Khushal was driving Hero Honda Motor Cycle bearing registration No.MH-
31 B-7888 from Borgaon to Karanja. At about 6.00 p.m. Near Borgaon Fata, truck bearing registration No.MP-32/3153 owned by respondent no.4 and insured with the appellant coming from opposite direction in high speed gave dash to the motor cycle of deceased and ran over him. Victim Khushal suffered fatal injuries and died on the spot. It is contended that the accident occurred due to rash and negligent driving of Truck No.MP-32/3153.
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3. The Insurance Company preferred this appeal on the ground that compensation awarded is unjust and excessive in the facts and circumstances of the case. According to the appellant, learned Member of the Motor Accident Claims Tribunal erred to pass Award in favour of the claimants.
4. The appeal is opposed on the ground that the Award amount is grossly insufficient considering that the age of deceased was only 27 years and he was earning a salary in the sum of Rs.6,103/- p.m. It is submitted that the learned Member of the Tribunal failed to consider 50 % increase in the salary in near future as the deceased was working as a Gram Sewak and considering the number of dependents on him, the amount of compensation could have been fixed higher than what is awarded. It is urged that it is duty of the Tribunal to award just, proper and reasonable compensation irrespective of claim.
5. The learned Counsel for the respondents/claimants made a reference to the ruling in the case of Babu Lal and ::: Downloaded on - 24/08/2015 23:56:39 ::: 5 fa211.09.odt Others .vs. D.T.C. And another reported in 2013 (1) T.A.C.
844 (Delhi) to submit that in case of deceased, aged about 22 years, at the time of his death, loss of dependency was fixed by the Delhi High Court considering his monthly income multiplied by 12 minus 1/3rd amount towards self-expenses and applied multiplier of 18 and separate compensation was awarded on account of love and affection, consortium, loss of estate, funeral expenses and compensation towards transportation of dead body. It is submitted that the learned Tribunal ought to have granted just, fair and reasonable amount of compensation.
6. Reference is also made to the ruling in the case of Rajesh and Others .vs. Rajbir Singh and Others reported in 2013 ACJ 1403 by three Judges Bench of the Supreme Court, wherein the Apex Court considered not only salary of the deceased, but prospective increases of 50 % of the salary added as future prospects and after deduction of 1/4th of the amount towards personal expenses of deceased, multiplier of 16 was applied in the case of deceased who was aged about ::: Downloaded on - 24/08/2015 23:56:39 ::: 6 fa211.09.odt 33 years. Thus, it is contended that, in the present case, in view of the ruling in the case of Sarla Verma and Others .vs.
Delhi Transport Corporation and another reported in 2009 ACJ 1298 compensation amount could have been determined.
It is submitted that there was evidence in the present case to indicate that deceased Khushal Dongre was employed as a Gram Sewak. Panchayat Samiti, Karanja and he was earning a salary of Rs.6,103/- in the month of June, 1999. There were prospective increases to the salary as Gram Sewak which could have been considered by the learned Tribunal. He was 27 years old at the time of accident.
7. I am satisfied that the Tribunal recorded findings correctly that the accident occurred as a result of rash and negligent driving of the offending motor vehicle bearing registration No.MH-32/3153 and the Insurer and the driver/owner were correctly held liable jointly and severally to pay the amount of compensation.
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8. So far as calculation of amount of compensation is concerned, after deductions from the salary of Rs.6,250/- p.m. the salary available to the deceased was of Rs.5,459/-. He was living along with his family members (claimants) who were totally dependent upon him i.e. his widow and two minor children. Thus, considering monthly income of Rs.5,459 p.m. x 12, a sum of Rs.65,508/- is annual income of victim, to which prospective increases by way of income to the extent of 50 % will add (i.e. Rs.32,750/-) = Rs.65,508/- + Rs.32,750/-
= Rs.98,258/- x 18 = Rs.17,68,644/- minus 1/3rd amount towards personal expenses of deceased of Rs.5,89,548/-.
Thus, it comes to Rs.11,79,096/- + loss of consortium Rs.50,000/-, loss of care and guidance of minor children Rs.50,000/-, funeral and transportation expenses Rs.25,000/-.
Thus, total amount comes to Rs.13,04,096/-, which amount in the facts and circumstances of the case would be just and reasonable compensation amount payable together with interest @ 7.5 % p.a. from the date of petition till realisation of the entire amount. The Award needs to be modified accordingly in view of the legal position stated by rulings ::: Downloaded on - 24/08/2015 23:56:39 ::: 8 fa211.09.odt (supra) cited on behalf of the respondents/claimants to press for just and reasonable amount of compensation.
9. In the result, the appeal is dismissed. The appellant herein and Respondent No. 4 herein shall jointly and severally pay Rs.13,04,096/- to respondent nos. 1 to 3 herein and respondent nos. 6 to 9 herein with future interest @ 7.5 % p.a. from the date of petition i.e. 8.9.1999 till realization excluding future interest from 4.10.2000 to 7.7.2003. The Award is modified thus to that extent.
The record and proceedings be sent back to the Tribunal.
JUDGE jaiswal ::: Downloaded on - 24/08/2015 23:56:39 :::