fa.307.09 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.307 OF 2009.
APPELLANTS: 1. Ramhari s/o Namdeorao Tekode,
aged about 48 years, Occu: Labour,
2. Sindhubai w/o Ramhari Tekode,
aged about 41 years, Occu: Household,
3. Ku.Gitanjali d/o Ramhari Tekode,
aged about 22 years, Occu: Education,
R/o Surali, Tq.Warud, Distt.Amravati.
: VERSUS :
RESPONDENTS: 1. Smt.Nalini wd/o Homraj Gaikwad,
aged about 29 years, Occu: Household,
r/o Bhaurao Rajerao Thoke, at Post Pala
Tq.Morshi, Distt.Amravati.
(Appeal is dismissed in default against
respondent no.1 as per R(J) order dated
2/4/2013.
2. The United India Insurance Co.
through its Divisional Manager, Near
Satish Motors, Badnera Road, Amravati.
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Mr.M.A.Sable, Advocate for the appellants.
Mr.M.R.Kalar, Adv. for respondent no.2.
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CORAM
: P.N.DESHMUKH, J.
DATE : 6th DECEMBER, 2017. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 2 ORAL JUDGMENT : 1. This appeal takes exception to Judgment and Award
dated 29th February, 2008 passed by Member, Motor Accident Claims Tribunal, Amravati in Claim Petition No.298 of 2005. By this Award, total amount of compensation granted by Tribunal was Rs.1,57,000/- inclusive the amount of Rs.50,000/- under 'No Fault Liability. Out of the said amount, 40% amount is directed to be paid to each appellant nos.1 and 2, respectively, who are parents of deceased and balance 20% of amount is directed to be paid to appellant no.3, sister of deceased.
2. Facts involved in the appeal can briefly be stated as under :
On 17th August, 2005, deceased Yogesh Tekode was proceeding on two-wheeler bearing registration No.MH-27/V- 2269 along with his friend Keshao Laxman Raut as pillion rider from village Surali to Warud when Hemraj Gaikwad, husband of respondent no.1, who was coming from opposite side on two- ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 3 wheeler bearing Registration No.MH-27/W-1243 along with two pillion riders namely, Chhatrapati Gomkale and Sagar Bhujade in high speed, in rash and negligent manner, gave dash to deceased Yogesh Tekode due to which he lost control over his vehicle and in an head-on-collision sustained grievous injuries and succumbed to same. Hemraj Gaikwad also died in the same accident.
3. On the day of accident vehicle No.MH-27/W-1243 involved in the present incident, driven by Hemraj Gaikwad was duly insured with respondent no.2 during the period from 26th April, 2005 to 25th April, 2006 for which valid Cover Note No.NRO/A/9691 was issued. As such, it is the case of appellant that on the day of accident which took place on 17 th August, 2005 offending vehicle, owned by husband of respondent no.1, was duly insured with respondent no.2 and as such both the respondents are jointly and severally liable to satisfy the amount of compensation which came to be calculated to the extent of Rs.7,20,000/-. Appellants, for want of payment of requisite court fees stamp, had restricted their claim to the extent of Rs.4,00,000/- only, and had ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 4 undertaken to pay the requisite court fees if appellants are held entitled for enhanced compensation.
4. Appellants had claimed amount of Rs.7,20,000/- as just compensation on the basis of monthly income of deceased to the extent of Rs.5000/- and by applying multiplier of 17 and in addition to it have added amount on the count of mental shock, agony, sufferings, funeral expenses, etc.
5. Petition against respondent no.1 came to be dismissed while respondent no.2 contested the same by filing written statement, Exh.17 and had denied the monthly income as well as insurance coverage for want of confirmation of policy and has come out with the case that the accident took place due to the rash and negligent driving of the deceased Yogesh Tekode himself and therefore prayed that the petition be dismissed.
6. Learned Tribunal holding monthly income of deceased to the extent of Rs.3000/- awarded compensation of Rs.3,12,000/- ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 5 and Rs.2000/- towards funeral expenses and held appellants entitled for 50% of above amount with interest at the rate of 7.5% holding that the accident occurred due to contributory negligence of deceased Yogesh to the extent of 50%. Accordingly, appellants are granted Rs.1,57,000/- inclusive amount of No Fault Liability as aforesaid. Hence, this appeal by appellants/original claimants for enhancement of amount of compensation.
7. Learned Counsel Shri M.A.Sable appearing for appellants has submitted that the Tribunal had not considered fact of appellants establishing monthly income of deceased to the extent of Rs.5550/- on the basis of certificate issued by his employer thereby establishing that the deceased was working as a driver and on the date of accident was earning Rs.135/- per day as his salary and in addition to that Rs.50/- as Bhatta.
Another point which is heavily canvassed is, learned Tribunal has applied multiplier of 13 considering the age of the parents of deceased and has thus contended that the view taken by the Tribunal is contrary to law as it was necessary for the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 6 Tribunal to apply multiplier according to the Rule laid down in the case of Sarla Verma and ors. ..vs.. Delhi Transport Corporation and anr. reported in (2009)6 SCC 121 and as per table given in this case, appropriate multiplier should be of 18.
Third point which is canvassed is of sole negligence of the deceased Hemraj Gaikwad, driver of the offending motor cycle and to substantiate this submission learned Counsel invited attention to evidence of appellant no.1 and documents being FIR, Exh.26 and has contended that from above evidence it cannot be said that accident occurred due to negligence of deceased and has thus, contended that finding of the Tribunal holding deceased negligent to the extent of 50% is without any basis. It is, therefore, prayed that appeal be allowed.
8. Learned Counsel Shri M.R.Kalar, appearing for respondent no.2 has submitted that the view taken by the Tribunal holding deceased responsible for accident is just and proper and for that purpose has referred to the contents of FIR, Exh.26 and has submitted that in view thereof, it is amply established that ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 7 deceased has contributed to the commission of accident. It is further submitted that the Court has rightly considered income to the extent of Rs.3000/- per month and has applied suitable multiplier considering the age of appellants and therefore, contended that award needs no interference in appeal.
9. In the background of facts involved in the appeal and submissions advanced by learned counsel for both sides, while considering the issue of quantum, from evidence of appellant no.1 Ramhari Tekode, father of the deceased, it has come on record that on the day of accident on 17th August, 2005 deceased was working as a driver with one Shrirampant Jagoji Bobde, resident of Karajgaon (Gandhighar), Tq.Warud, Distt.Amravati on his Tata Sumo Vehicle Registration No.MH-15/7171 and was earning Rs.5000/- per month inclusive Bhatta and has placed on record certificate, Exh.35 issued by his employer. He has further deposed that deceased was possessing valid driving licence. In his cross- examination, it has come on record that deceased Yogesh was working as a driver and has denied that he was paid Rs.70/- per ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 8 day. He further denied that deceased was not earning Rs.5000/- per month. He also denied that no vehicle is owned by Shrirampant Bobde as suggested to him. Admittedly, appellant no.2 had not led any evidence to dislodge the claim of appellants.
10. In the background of evidence of appellant no.1, perusal of Certificate, Exh.35 establishes that at the time of accident deceased was working as a driver earning Rs.135/- per day and was paid Rs.50/- per day in addition to above amount as Bhatta. Having considered oral and documentary evidence as aforesaid, and in absence of any other evidence on record by respondent no.2, appellants can be said to have established fact of monthly income of deceased to the extent of Rs.5550/-.
11. Though respondent no.2 in its written statement had denied insurance coverage for want of confirmation of insurance Policy of two-wheeler involved in the accident, from the Cover Note, Exh.32 on record it is established that vehicle bearing Registration No.MH-27/04/64717 is duly insured in the name of ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 9 deceased Yogesh Tekode for the period from 16 th November, 2004 to 15th November, 2007 and as such, same was valid on the date of accident which took place on 17th August, 2005. From the driving licence filed below Exh.24, deceased is found issued with lilcence entitling him to drive light vehicle and the licence was valid on the day of accident.
Above facts even otherwise are not seriously disputed by respondent no.2.
12. Having considered above evidence, therefore, it is found that the appellant has successfully established monthly income of deceased to the extent of Rs.5550/- and that deceased on the day of accident was riding the motor cycle having valid driving licence and that vehicle was duly insured with respondent no.2 at the time of accident.
13. With regard to second submission advanced on behalf of the appellants about finding of the Tribunal holding deceased equally negligent with that of rider of another motor cycle involved ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 10 in the accident, on perusal of evidence of appellant no.1 it has come on record that on the day of incident deceased was proceeding on Motor Cycle No.MH-27/V-2269 in moderate speed by observing rules of the road and on his reaching Surai Road, motor-cycle bearing registration No.MH-27/W-1243 since was driven by Hemraj Gaikwad in rash and negligent manner, while coming from opposite direction, gave dash to the vehicle of deceased and accident took place. Admittedly, appellant no.1 Ramhari is not an eyewitness to the incident and as such, his evidence as aforesaid cannot be accepted as it is. There is no other evidence led by either of the parties on the point of negligence. In the circumstances, the only recourse which can be adopted is to cosndier further documents on record.
14. On perusal of FIR, Exh.26 which came to be lodged on the day of accident, in which though it is stated that accident took place due to contributory negligence of drivers of both the motor cycles, admittedly, there is no investigation carried out by police on this aspect and as such, there is nothing on record as to on what ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 11 basis the Tribunal has reached to finding holding drivers of both the motor cycles to be negligent. On the contrary, from the contents of FIR itself it is found that vehicle bearing Registration No.MH/27-W-2269 driven by deceased Hemraj Gaikwad was with two pillion riders namely, Chhatrapati Namdeo Gomkale and Sagar Vishnu Bhujade. In that view of the matter, evidence of appellant no.1 though he is not an eye witness to incident finds corroboration that Hemraj Gaikwad since was travelling on motor cycle with two pillion riders lost his control over it and gave dash to motor cycle of deceased causing accident.
15. In view of above discussed evidence there is nothing to hold that accident took place due to the contributory negligence to the extent of 50% as held by the Tribunal. However, in the absence of any specific evidence, since not led even by appellants, and considering the gravity of accident wherein riders of both the motor cycle died, it can safely be held that the impact of both the vehicle has to be grave and that can only be, when both the vehicles are driven in high speed negligently, however, finding that ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 12 other motor-cycle involved in the accident was occupied by three persons, negligence to the extent of 25% only, can be attributed to deceased Yogesh Tekode holding the accident as an outcome of contributory negligence.
16. In view of above discussed facts and evidence on record appellants are thus, found entitled for just compensation as follows :
Monthly income Rs.5550/- x 12 = Rs.66,600/-, after deducting one-third amount from it, for his personal expenses, yearly dependency of claimants comes to Rs.44,400/-. Having considered age of deceased of 24 years, as per Chart in the case of Sarla Verma, cited supra, multiplier of 18 is attracted. Thus, on multiplying Rs.44,400/- x 18 = Rs.7,99,200/-. Thus, appellants are entitled for said amount.
In addition to above amount since deceased was self- employed having fixed income and below 40 years of his age, as per recent pronouncement in the case of National Insurance Co.Ltd. ..vs.. Pranay Sethi and ors reported in 2017 SCC OnLine ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 00:25:43 ::: fa.307.09 13 SC 1270, appellants are entitled for 40% of the amount on established income, towards loss of future prospect which is calculated to the extent of Rs.3,19,680/- which makes said amount of compensation to the extent of Rs.7,99,200/- + Rs.3,19,680/- + Rs.15000/- for funeral expenses which comes to Rs.11,33,880/-. On deducting 25% from the said amount, appellants/claimants are held entitled for just compensation of Rs.8,50,410/- with interest thereon at the rate of 7.5% P.A. from the date of petition till its realization in accordance to the apportionment of amount by the Tribunal, subject to their paying deficit court fees on the enhanced amount of compensation in this Court. Appeal is accordingly allowed in above terms.
JUDGE.
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