fa1120.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
FIRST APPEAL NO. 1120 OF 2015
Manda wd/o Shankar Awchar
aged 48 yrs. Occu. Housewife,
R/o AT Agikhed, Post Khanapur,
Tq. Patur, Distt. Akola. APPELLANT.
VERSUS
1] Shatrughna Pralhad Guddhe,
aged Adult, Occu. Owner of
Autorikshaw bearing no. MH-30
P-6741, R/o At Agikhed, Post
Khanapur, Tq. Patur, Distt. Akola.
2] United India Insurance Company
Limited, Akola through Divisional
Manager, R/o Old Cotton Market,
Rajasthan Bhawan, Akola. RESPONDENTS.
Shri S. D. Chopde, Advocate for the appellant.
Smt. Mrinal Naik, Advocate for the respondent no. 2.
CORAM: A. S. CHANDURKAR J.
Dated : MAY 04, 2016.
ORAL JUDGMENT:
In view of notice for final disposal issued on 04.01.2016 the learned counsel for the parties have been heard at length by admitting the appeal.
2] The appellant is the claimant who had filed an application under ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:54:39 ::: fa1120.15 2 Section 163-A of the Motor Vehicles Act, 1988 (for short, the said Act) seeking compensation on account of fatal accident of Arvind Shankar Awchar. On 09.04.2012 said Arvind was travelling in an autorikshaw which was owned by the respondent no.1 and insured with the respondent no.2.
Said autorikshaw was dashed by a truck due to which it fell down from the bridge resulting in aforesaid fatal accident. It is the case of the appellant that said Arvind was doing labour work and was earning Rs.3000/- per month.
On that basis compensation of an amount of Rs. 3,50,000/- was sought in proceedings under Section 163A of the said Act. The respondent no.1 did not file any written statement. The respondent no.2 filed its written statement and did not dispute that an un-identified truck had given a dash to the autorikshaw. It was pleaded that the accident occurred due to negligence of the truck driver and there was no negligence on the part of the autorikshaw driver. It was then pleaded that it was a case of hit and run and therefore provisions of Section 163-A of the said Act were not applicable.
Before the Claims Tribunal the appellant examined herself. The Insurance Company examined the Clerk from the Regional Transport Office as well as its Investigator. The Claims Tribunal vide judgment dated 14.01.2015 partly allowed the claim and granted compensation of Rs.
2,38,500/-. The appellant not being satisfied with the amount of compensation has filed the present appeal.
3] Shri S. D. Chopde, the learned counsel for the appellant submitted that the appellant was entitled for higher compensation.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:54:39 :::fa1120.15 3 According to him as per Schedule II to the said Act, 1/3rd amount was required to be deducted towards notional personal expenses. However, Claims Tribunal deducted half amount in that regard. According to him the proper multiplier ought to have been 17 as the deceased was aged about 24 years. He then submitted that additional amounts were required to be granted on account of love and affection. He therefore sought for enhancement in the amount of compensation.
4] Mrs. Naik, learned counsel for respondents opposed the prayer for enhancement of compensation. According to her claim under Section 163A of the said Act itself was not tenable. She submitted that as the accident was caused by an un-identified truck it was a case of hit and run. It is submitted that as the authorikshaw was duly insured, the claim was satisfied by the Insurance Company. She submitted that the appeal is liable to be dismissed.
5] The following point arises for consideration:
Whether the appellant is entitled for higher compensation?
6] With the assistance of the learned counsel for the parties I have perused the impugned judgment and I have given due consideration to their respective submissions. The fact that the autorikshaw was insured with the respondent no.2 is not in dispute. The Claims Tribunal has considered the defence raised by the Insurance Company that the accident was a case of hit and run but has not accepted the same as said Arvind was travelling in the autorikshaw which was dashed by the truck. The defence with regard to ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:54:39 ::: fa1120.15 4 breach of policy was also considered by the Claims Tribunal and was turned down. The award as passed by the Claims Tribunal has not been challenged by the Insurance Company. In fact, it is urged on behalf of the respondent no.2 that as the autorikshaw was duly insured the claim as awarded has already been satisfied. Thus in absence of any challenge whatsoever on the part of the Insurance Company to the award of the Insurance Company, the defence as raised in the written statement cannot be permitted to be re-
agitated.
7] The only aspect that requires consideration is the determination of the amount of proper compensation. As the proceedings are under provisions of Section 163-A of the said Act, Schedule II to the said Act would have to be taken into consideration. The ratio of the judgment in Abati Bezbaruah Vs. Deputy Director of General Geological Survey of India AIR 2003 Supreme Court 1817, relied upon the the learned counsel for the respondent no.2 can be followed while determining the amount of compensation.
8] The Claims Tribunal has recorded a finding that Arvind was aged about 24 years when the accident took place and was unmarried. The income taken per month is Rs. 3000/-. The statutory deductions would be to the extent of 1/3rd towards the amounts that would have been spent by the victim. The multiplier applicable would be 17. On that basis the annual earning would have to be taken at Rs. 36,000/-. After deducting 1/3 rd of the amount towards personal expenses, the loss of dependency would be Rs.
24,000/- per annum. By applying the multiplier of 17 the total loss of ::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:54:39 ::: fa1120.15 5 dependency would come to Rs. 4,08,000/-. Further amounts towards loss of love and affection and funeral charges can be taken at Rs. 42,000/- and on that basis the compensation payable would be Rs. 4,50,000/-. The point as framed is answered by holding that the appellant is entitled to higher amount of compensation.
9] In view of aforesaid discussion the following order is passed:
The judgment dated 14.01.2015 in Motor Accident Claim Petition No. 166 of 2012 is partly modified and the appellant is entitled to receive total compensation of Rs. 4,50,000/- from the respondents who are jointly and severally liable to pay the same. The amount of compensation is payable with interest at the rate of Rs. 6% P. A. from the date of the application till its realisation. The amounts already paid to the appellant shall be taken into account.
After deducting the requisite amount of court fees, the balance amount shall be paid by the respondent no.2 to the appellant within a period of three months from today. The First Appeal is allowed in aforesaid terms with no order as to costs.
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