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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 626 OF 2017
Appellant : The Oriental Insurance Company Limited,
through its Divisional Manager, Division
Office, Indira Market, Wardha, represented by
Dy Manager, Oriental Insurance Company,
Regional Office, Nagpur
versus
Respondents : 1. Smt Sangita wd/o Raju Jayde, aged about
35 years, Occ: Household
2. Smt Kusumbai wd/o Damodar Jayde, aged about 70 years, Occ: Nil
3. Vaishali d/o Raju Jayde, aged 15 years
4. Ku Shivani d/o Raju Jayde, aged 13 years
5. Nakul s/o Raju Jayde, aged 8 years Respondents no. 3 to 5 being minor,through their mother/respondent no. 1
6. Shadab Khan Fatyb Khan, aged Adult, Occ:
Business and Driver, resident of Khatib Ward, ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/06/2017 01:11:04 ::: 2 Pusad, District Yavatmal Smt Mrinal Naik, Advocate for appellant Ms B. M. Kasare, Advocate for respondents no. 1 to 5 Respondent no. 6 served Coram : S. B. Shukre, J Dated : 27th June 2017 Oral Judgment
1. Heard. Admit. Sending for Record and Proceedings and filing of private paper book is dispensed with. Taken up for final disposal in view of order dated 14th December 2015. Heard Ms Mrinal Naik, learned counsel for appellant and Ms B. M. Kasare, learned counsel for respondents no. 1 to 5. None appears for respondent no. 6 though duly served. No written submissions have been filed on his behalf.
2. This appeal has been filed challenging only one finding recorded in the judgment and order dated 27th November 2014 rendered by the Chairman, Motor Accident Claims Tribunal, Wardha in MACP No. 121 of 2013. This finding is regarding the age of the deceased at the time of his accident.
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3. Respondents no. 1 to 5 were dependent upon the income of deceased Raju Jayade who was working in the Police Department. He died in an accident involving the use of motor vehicle on 21.3.2013. At that time, deceased was riding motor-cycle bearing registration No. MH-32-N- 4184 and when the motor-cycle came within the jurisdiction of Gram Panchayat, Sawangi (Meghe), one truck bearing registration number MH- 31/W-4933 suddenly appeared from the rear side of the motor-cycle and gave a violent dash to the motor-cycle. The result was, deceased Raju fell down on the road sustaining grievous head injuries. He died instantaneously of the injuries. A claim petition was filed by respondents no. 1 to 5 seeking compensation for untimely death of Raju under Section 166 of the Motor Vehicles Act. It was allowed on merits of the case. However, learned counsel for the appellant submits that the age of the deceased was wrongly found to be 40 years although the evidence available on record clearly showed that he was 47 years old at the time of accident. It is also the contention of the appellant that for the age of 47 years, the appropriate multiplier as per the ruling in the case of Sarla Verma vs. Delhi Transport Corporation reported in 2009 ACJ 1298 (SC), was "13" and the Tribunal wrongly considered the age to be 40 years and applied multiplier of "15" and thereby it has committed serious error of fact and law.
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4. Learned counsel for the respondents no. 1 to 5 submits that the finding recorded by the Tribunal as regards the age of the deceased is according to the evidence available on record and, therefore, is correct.
5. On going through copy of deposition which is placed on record by learned counsel for the appellant and which is marked "X" for identification, I find that witness no. 2 Ravindra Killekar, Deputy Superintendent of Police for the claimants has stated categorically that the date of birth of deceased Raju, as contained in the Service Book, was 17.12.1965. This being the evidence available on record, learned Chairman could not have recorded a different finding that the age of the deceased at the time of accident was 40 years although it was clearly of 47 years. The age of the deceased drawn by the learned Chairman of the Tribunal appears to be on the basis of some imagination. This finding of fact is, therefore, perverse and needs to be quashed and set aside.
6. In the result, I find that the age of the deceased at the time of accident was of 47 years and not of 40 years and therefore, according to Sarla Verma v. Delhi Transport Corporation (supra), the appropriate multiplier to be applied in the instant case would be "13" instead of "15". There is no dispute about the loss of dependency and, therefore, the ::: Uploaded on - 27/06/2017 ::: Downloaded on - 28/06/2017 01:11:04 ::: 5 multiplier of "13" will have to be applied to the loss of income of Rs. 2,32,740/- and if we take "13" as multiplier, the total future loss of income would be Rs. 30,25,620/-. The compensation awarded by the Tribunal under non-pecuniary head has not been challenged and, therefore, the same will have to be added to the amount of total loss of income and by adding the same, the compensation that the claimants would be entitled to receive from the appellant and respondent no. 6 jointly and severally would be of Rs. 32,30,620/-. This amount shall be payable from the date of application and shall carry interest @ 7.5% per annum from the date of application till actual realization or deposit of the amount in the Tribunal. In the circumstances, the appeal is allowed in terms of above order. The Award is modified accordingly. Rest of the Award is confirmed. The amount which is in excess of the compensation so determined under this order and which is already deposited in the Tribunal, is permitted to be withdrawn by the appellant with interest, if any, and the amount from out of the amount deposited by the appellant before the Tribunal, which represents the amount determined by this Court, is permitted to be withdrawn by the claimants.
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