J-fa129.08.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.129 OF 2008
Smt. Ashabai w/o. Dashrath Thorat,
Aged 40 years,
Occupation : Household,
R/o. Umarkhed, Tahsil Umarkhed,
District Yavatmal. : APPELLANT
...VERSUS...
1. Sanjay s/o. Bandu Bhalerao,
Aged 27 years,
R/o. Soit,
Tahsil Umarkhed, District Yavatmal.
2. Suryakant s/o. Punjaram Kamthewad,
Aged : Adult, R/o. Bramhangaon,
Tah. Umarkhed, District : Yavatmal.
3. The Oriental Insurance Company Ltd.,
Branch : Yavatmal,
Through Divisional Manager,
Amravati. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri P.D. Meghe, Advocate for the Appellant.
None for Respondent Nos.1 and 2.
Shri S.K. Pardhy, Advocate for the Respondent No.3.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
th DATE : 8 DECEMBER, 2017.
ORAL JUDGMENT :
1. This appeal questions the legality and correctness of the ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:13 ::: J-fa129.08.odt 2/7 judgment and order dated 6th February, 2007, rendered in Motor Accident Claim Petition No.4/2005 to the extent of quantum of compensation determined by the Tribunal. The petitioner is the mother of deceased Amol, who died in a vehicular accident involving two vehicles on 21.8.2004. He was working as a cleaner on one of those vehicles. It was a Jeep bearing registration No. MH-29-C-698. The other vehicle involved in the accident was also a Commander Jeep bearing registration No. MTN 8653. There was a head on collision between these two vehicles. As a cleaner working on Jeep bearing No. MH-29-C-698 deceased Amol then aged about 23 years, as claimed by the petitioner, used to earn Rs.5,000/-. He used to contribute towards maintenance of his family. Because of his untimely loss, the petitioner filed a case under Section 166 of the Motor Vehicles Act (in short, "MV Act") seeking compensation for the same.
2. The claim petition was, however, filed against only driver, owner and the insurer of one vehicle bearing registration No. MTN 8653 involved in the accident and the driver, owner and the insurer of the other vehicle were not joined as parties.
3. The petition was resisted by all the respondents. They submitted that the accident occurred only for the rashness and negligence shown by the driver of the other Jeep bearing registration No. MH-29-C-698. The respondent No.3 also denied that deceased ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:13 ::: J-fa129.08.odt 3/7 Amol was working as a cleaner on the jeep.
4. On merits of the case, the Tribunal partly allowed the petition and granted compensation of Rs.1,26,000/- together with interest at the rate of 6% p.a. from the date of petition till realization. The petitioner not being happy with the quantum of compensation, so determined by the Tribunal, has preferred the present appeal.
5. I have heard Shri P.D. Meghe, learned counsel for the appellant and Shri S.K. Pardhy, learned counsel for respondent No.3. Nobody is present on behalf of respondent Nos.1 and 2 though duly served. I have carefully gone through the record of the case including the impugned judgment and order.
6. Now, the only point which arises for my determination is :
Whether the compensation granted by the Tribunal is just and proper ?
7. In the present case, so far as the aspect of negligence is concerned, I find that there is some mistake committed by the Tribunal in recording finding on the first issue. In paragraph 6 of the impugned judgment and order, a finding on the first issue, which was about rashness and negligence of the jeep bearing registration No. MTN 8653, has been recorded. It is in the affirmative although, on a reading of the entire judgment as a whole, I find that the Tribunal in fact has recorded a different finding, fastening the liability for occurrence of the accident on ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:13 ::: J-fa129.08.odt 4/7 the drivers and owners of both the vehicles involved in the accident and not only that, the Tribunal has also fixed the percentage of liability of the respective vehicles. In paragraph 16, it has been found that both these drivers were responsible for causing of accident and their liability for the same was on equal basis. Accordingly, the Tribunal only granted 50% of the amount of compensation determined by it under the impugned judgment and order. Nobody has challenged these findings ultimately recorded by the Tribunal and therefore, now they have attained finality.
8. About the quantum of compensation, yes I would say, there is great substance in the argument of learned counsel for the appellant. Of course, learned counsel for the respondent No.3 has submitted that there has been no reliable evidence adduced on record to prove the income of the deceased. But, one has to understand the fact that the petitioner having established that her deceased son was working as a cleaner on one of the jeeps, could not have been in a position to bring on record any documentary evidence in the nature of certificate of income or salary slip issued by the owner. The job of a cleaner is such for which, usually, the owners of the vehicles do not keep any record and do not issue any certificates or salary slips. Therefore, it would be appropriate for this Court to consider the oral evidence of the appellant for its reliability or otherwise.
9. On going through the evidence of the appellant, I find that ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:13 ::: J-fa129.08.odt 5/7 her son used to earn Rs.5,000/- per month as a cleaner on the jeep has been specifically denied by the respondent No.3-insurance company. However, her other assertion that her son was working as a cleaner has not been so denied by the respondent No.3. Therefore, what is established in the present case is at least the fact that deceased Amol was working as a cleaner. Once it is found that he was so working, it would not be very difficult to arrive at a reasonable figure by some guesswork of his monthly income. In the year 2004, it could have been something like Rs.3,000/- per month, which I take to be the basis for working out further calculations.
10. From the monthly income of Rs.3,000/-, one half would have to be deducted on account of personal expenses. So annual income of the deceased would be Rs.18,000/- per month. At the time of accident, according to the appellant deceased Amol was 23 years old, but the school certificate vide Exh.-48 adduced in evidence by her discloses that his date of birth was 5.10.1985 showing that deceased Amol was 19 years old at the time of accident. In any case, whether 19 years or 23 years, as per case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 the multiplier would be the same and it is of '18'. When it is applied, the dependency at the time of death comes to Rs.3,24,000/-. The case of National Insurance Company Limited vs. Pranay Sethi and others , ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:13 ::: J-fa129.08.odt 6/7 delivered in Special Leave Petition (Civil) No.25590/2014 , decided on 31 st October, 2017. would mandate that the deceased falling in the category of persons on fixed salary and below 40 years of age, 40% of the dependency amount at the time of death would have to be further added as his future prospects and amount of Rs.30,000/- under the heads of loss of love and affection and funeral expenses would also have to be added. Thus, calculated, the total amount of compensation payable to the appellant would be as under :
Income per month Rs.3,000/-
deduct 50% of Rs.3,000/-.
Annual Income (Rs.1,500/- X 12) = Rs.18,000/-
As per Sarla Verma's case
appropriate multiplier : X 18
-----------------
Rs.3,24,000/-
Add : 40 % Rs.1,29,600/-
Add : i) Loss of love and affection Rs. 15,000/-
ii) Funeral Expenses Rs. 15,000/-
---------------------
Rs.4,83,600/-
========
11. In the result, the petition deserves to be partly allowed. The point is answered accordingly.
12. Having regard to the fixation of percentage of respective liabilities by the Tribunal, which has now attained finality, liberty would have to be granted to respondent no.3 to initiate appropriate proceeding against the driver, owner and insurer of the other vehicle involved in the present case so as to recover the amount. Accordingly following order is ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:13 ::: J-fa129.08.odt 7/7 passed :
13. The appeal is partly allowed.
(i) It is declared that the appellant is entitled to receive compensation of Rs.4,83,600/- along with interest at the rate of 6% p.a. from the date of petition till realization and it shall be paid to her jointly and severally by the respondents.
(ii) The respondent No.3, however, shall have liberty to initiate appropriate proceeding against the driver, owner and insurer of the other vehicle involved in the accident bearing registration No. MH-29-C-698 for recovery of the amount for which liability has been fastened upon them.
(iii) The impugned judgment and order stand modified in the above terms.
14. Parties to bear their own costs.
JUDGE okMksns ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 00:54:13 :::