fa634-08.J.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.634 OF 2008
1] Pushpa wd/o Sheshrao Datar
Aged about 48 years, Occ.: Household
2] Asha d/o Sheshrao Datar
Aged about 24 years, Occ.: Nil
[
Both residents of Indira Nagar,
Ward No.7, Gadchiroli. ....... APPELLANTS
...V E R S U S...
1] M/s Prashant Construction Co.
Subhedar Lane, Gadikhana
Mahal, Nagpur (Owner of Truck).
2] Divisional Manager,
National Insurance Company,
Chandrapur (Insurer of Truck).
3] Divisional Manager,
Oriental Insurance Company,
Mahatma Gandhi Road,
Chandrapur
(Insurer of Motor Cycle). ....... RESPONDENTS
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Shri. P. P. Pendke, Advocate for Appellants.
Shri C. A. Anthony, Advocate for Respondent No. 2.
None appeared for Respondent No. 1 & 3.
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CORAM : SMT. DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 14 th
JUNE, 2017.
ORAL JUDGMENT
This appeal is preferred by the original claimants against the judgment and award dated 15.7.2007 passed by the ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:08:01 ::: fa634-08.J.odt 2 Member, Motor Accident Claims Tribunal, Gadchiroli in Motor Accident Claims Petition No. 32/2004.
2] Brief facts of the appeal can be stated as follows:
Appellant No.1 is the wife and appellant no.2 is the daughter of deceased Sheshrao, who met with an accident while driving the motorcycle, bearing No. MH-33/D-4015, which was insured with respondent No.3. The truck bearing No. MWH-5639 owned by respondent no.1 and insured with respondent No. 2 had given dash to his motorcycle, which resulted into his fatal injuries. After carrying out necessary inquiry, police had registered Crime No. 157/2004 against the driver of the offending truck for the offences punishable under Sections 279, 304-A of the Indian Penal Code. The appellants being dependents of the deceased Sheshrao, filed the petition for compensation of Rs.5,00,000/- from the respondents.
3] The respondents resisted the said claim petition. However, on appreciation of evidence on record, the learned trial Court was pleased to allow the said petition directing respondent Nos. 1 and 2 i.e. the owner and insurer of the offending truck to ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:08:01 ::: fa634-08.J.odt 3 pay jointly and severally the compensation of Rs.5,00,000/- inclusive N.F.L. of Rs.50,000/- to the appellants. 4] Being not satisfied with the amount of compensation as awarded by the Tribunal, this appeal is preferred by original claimants.
5] I have heard learned Advocate for the appellant and also perused the record of the case. The only question for my determination is whether the Tribunal has awarded just and correct amount of compensation.
6] As per admitted facts of the case, the Tribunal has held that the cause of accident was rash and negligent driving of the truck driver and the owner of the truck i.e. respondent No.1 and insurer are held liable to compensate the appellants. Respondent Nos. 1 and 2 have not preferred any appeal challenging the order passed by the Tribunal. Hence, so far as legal liability of respondent Nos. 1 and 2 to compensate the appellants is concerned, it already stands proved on record.
::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:08:01 ::: fa634-08.J.odt 4 7] The only dispute is about the quantum of
compensation. It is brought on record and proved through the evidence of the appellants and the salary certificate (Exh.49) that the deceased was drawing salary of Rs.8,974/- per month. It is also brought through the evidence of service book (Exh.50) that he was born on 7.5.1950 and he died in the accident on 5.1.2004. Therefore, at the time of accident, he was of 54 years of age. Hence, as per Second Schedule of Section 163-A of the Motor Vehicles Act, multiplier of 11 needs to be applied. 8] Now, in view of settled position of law as laid down by Hon'ble Apex Court in the case of "Sarla Verma Vs. DTC, (2009) 6 SCC 121" and further confirmed in the case of "Rajesh and others Vs. Rajbir Singh and others, (2013) 9 Supreme Court Cases 54", as the deceased was in the age group of 50 to 60 years, he was entitled to 15% of his income towards the future prospects. Thus, having regard to his income from salary of Rs.8,974/- per month multiplied by 12 comes to Rs. 1,07,688/- plus 15% towards future prospects Rs. 16,154/- it comes to Rs.1,23,842/-. If 1/3rd of the said amount which comes to Rs.41,280/- is deducted towards his personal expenses, then ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:08:01 ::: fa634-08.J.odt 5 dependency of the appellants comes to Rs.82,562/-. If the said amount is multiplied by 11, then it comes to Rs.9,08,182/-. 9] Learned Tribunal has held that the appellants are entitled to the amount of Rs.7,89,712/- towards the loss of dependency applying the multiplier of 11 and holding his income from salary of Rs.8,974/- per month. However, as learned Tribunal has not awarded him 15% of the income towards future prospects, that amount is now required to be added as stated above.
10] Moreover, learned Tribunal has deducted 20% amount of compensation on the count that appellants were getting the said amount at once in lump-sum. Thus, the Tribunal has deducted the amount of Rs.1,57,942/- from the amount of Rs.7,89,712/- and held the appellants entitled to get Rs.6,71,770/- only. However, on which basis the learned Tribunal has deducted the amount of 20% amount of compensation is not explained. It has no basis in law. Hence, such deduction is required to be set aside. Moreover, the Tribunal has awarded amount of Rs.2,000/- only towards funeral expenses and ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:08:01 ::: fa634-08.J.odt 6 Rs.5,000/- only towards loss and consortium, love and affection. However, considering the trend of the recent decisions of the Apex Court, the said amount needs to be enhanced to Rs.25,000/- towards funeral expenses and Rs.1,00,000/- towards loss of consortium love and affection. Thus, the appellants become entitled to get the total amount of Rs.10,33,182/-. 11] It is also surprising to note that learned Tribunal has though arrived at a conclusion that appellants are entitled to get total amount of Rs. 6,78,770/-, as the appellants had restricted the claim to the extent of Rs.5,00,000/- in the petition, being unable to pay court fee stamp, the Tribunal has awarded the compensation of Rs.5,00,000/- only. Needless to state that this part of the order of the learned Tribunal holding the appellants entitled to get total amount of Rs. 6,78,770/- but awarding only Rs.5,00,000/- also needs to be modified as the Tribunal could have awarded the said amount subject to appellants depositing court fee.
12] The net result is that this appeal is allowed. Appellants are held entitled to get total compensation amount of ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:08:01 ::: fa634-08.J.odt 7 Rs.10,33,182/-. Out of the said amount, appellants have already received the amount of Rs.5,00,000/- as awarded by the Tribunal. Hence, now and respondent Nos. 1 and 2 are jointly and severally liable to pay the remaining amount of Rs.5,33,182/- to the appellants with interest thereon at the rate of 7.5% per annum from the date of petition till realization of the entire amount. 13] Subject to appellants paying deficient court fee stamp, out of the remaining amount of compensation of Rs.5,00,000/-, 75% amount with interest accrued thereon be paid to appellant No.1 Pushpa, the widow of Sheshrao Datar and remaining 25% amount with interest accrued thereon be paid to appellant No.2 Asha, the daughter of the deceased Sheshrao.
JUDGE RGIngole ::: Uploaded on - 23/06/2017 ::: Downloaded on - 28/08/2017 06:08:01 :::