FA 445/06 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL N
O
.
445 /20 06
1. Smt. Jamunabai Wd/o Shivlal Bhusum Korku, aged about 35 Years, Occ: Labour.
2. Sau. Kami W/o Kalu Bhusum Korku, Aged about 65 Years, Occ: Labour.
Both Nos.1 & 2 R/o Kalvit, Post- Malhara, Tah. Achalpur, Dist. Amravati. APP ELL ANTS .....VERSUS.....
1. Bhagchand S/o Ramchand Koche, Aged Adult, Occ: Driver, R/o Khanapur, Paratwada, Tah. Achalpur, Dist. Amravati.
2. Sheikh Sadique S/o Sheikh Muneer, Aged Adult, Occ: Motor Truck Operator, R/o Naik Plot, Paratwada, Tah. Achalpur, Dist. Amravati.
3. National Insurance Company Ltd., Through its Divisional Manager, Division Office No.1, 1st Floor, Samra Complex, Jaistambh Chowk, Amravati Tah. & Dist. Amravati.
4. Ajabrao S/o Zolaram Amzare, Aged Adult, Occ: Tractor Driver, R/o Chincholi Purna, Tah. Achalpur, Dist. Amravati.
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FA 445/06 2 Judgment
5. Rushikesh S/o Gajanan Bul, Aged Adult, Occ: Agriculture & Supplier of Building Material, R/o Navjeevan Colony, University Road, Amravati.
6. New India Assurance Company Ltd., Through its Divisional Manager, Division Office at Walcut Compound, Amravati Tah. & Dist. Amravati.
7. The Oriental Insurance Company Ltd., Through its Divisional Manager, Division Office at Rajapeth, Badnera Road, Amravati Tah. & Dist. Amravati. RESPONDE NT S Shri Parag Kadu, Counsel for the appellants. Shri N.D. Dubey, A.G.P. for the respondent Nos.1 & 2. Smt. Anita Mategaonkar (Singh), Counsel for the respondent No.6.
CORAM : S.
B. SHUKRE, J
.
DATE : 06 TH NOVEMBER , 2017 .
ORAL JUDGMENT
This appeal is preferred for seeking more compensation than what has been granted by the tribunal under its impugned judgment and order.
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FA 445/06 3 Judgment
2. The appellant Nos.1 and 2 are the widow and mother of deceased Shivlal Korku. They filed a petition under Section 166 of the Motor Vehicles Act ('M.V. Act' for short) claiming compensation for the untimely death of Shivlal in an accident involving a truck on one hand and tractor and trolley on the other hand. The accident occurred on 09.11.1996 at about 6 p.m. on Paratwada road. At that time, deceased Shivlal was travelling by a truck bearing registration No.MPM-3624 as a collie. The truck was loaded with the sand excavated from river Talni. When the truck entered village Jawardi on Paratwada road, it suddenly collided head on with a tractor and trolley coming from the opposite direction. The tractor and trolley had the registration No.MH-27/A-8616 and MH-27/C-8555. The offending truck was driven and owned by the respondent Nos.1 and 2 and insured with respondent No.3. The offending truck and trolley were driven and owned by respondent Nos.4 and 5 and insured with the respondent Nos.6 and 7, respectively. The impact of the accident between two vehicles was very severe, particularly for those, who were travelling as collies on the offending truck. Deceased Shivlal came under the heap of the sand, which tumbled over after the accident and he died instantaneously. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:28:11 :::
FA 445/06 4 Judgment
3. The claim petition was contested by the respondent Nos. 1, 2, 3, 4, 5 and 7. However, on merits of the case, the tribunal found that the accident having taken place due to rash and negligent driving of both the vehicles, the drivers, owners and insurers of both the vehicles were respectively liable for payment of compensation to the appellants. Accordingly, apportioning liability on 50% basis between these two vehicles, the tribunal granted compensation of Rs.1,22,700/- together with interest at the rate of 9% per annum inclusive of the amount of no fault liability to the appellants by its judgment and order dated 23.12.2005. Not being satisfied with the same, the appellants, who are the original claimants, are before this Court in the present appeal.
4. I have heard Shri Kadu, learned counsel for the appellants. Nobody appears on behalf of the respondent Nos.1, 2, 4, 5, 6 and 7. I have heard Mrs. Deshpande, learned counsel for the respondent No.3. I have gone through the record of the case including the impugned judgment and order. Now, the only point which arises for my determination, is;
"Whether the compensation granted by the claims tribunal is just and proper ?"
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FA 445/06 5 Judgment
5. I must make it clear here that the findings recorded by the claims tribunal as regards the fault liability and age of the deceased have not been challenged by any of the respondents and they have attained finality. The tribunal has found that for this accident, both the drivers of the offending truck as well as offending tractor and trolley were equally responsible and that would mean that the liability to pay compensation to the dependents of the deceased would have to be shared equally between the driver, owner and insurer of the offending truck on the one hand and driver, owner and insurers of the offending tractor and trolley on the other hand, on 50% basis each. The age of the deceased Shivlal has been found by the tribunal on the basis of the post mortem report to be at 23 at the time of the accident and rightly so.
6. Shri Kadu, learned counsel for the appellants submits that the compensation granted in the present case is quite inadequate, because there has been a serious error committed by the tribunal in determination of the income of the deceased. However, this is not agreed to the learned counsel for the respondent No.3, who submits that the determination made by the tribunal is correct, rather it is just and proper in the facts and circumstances of this ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:28:11 ::: FA 445/06 6 Judgment case. She submits that the accident was of the year 1996, at which time, the daily wage rates were not more than Rs.40/- per day and that, considering the admission given by the P.W.1 Jamunabai that the deceased was working for only 18 to 20 days in a month, the monthly income of the deceased could not have been more than Rs. 500/-. She further submits that if at all any enhancement in compensation is to be made, the interest should not be granted on it at the rate of 9% per annum and it should be somewhere in the range of 6% to 7% per annum.
7. Upon consideration of the evidence available on record and examining the reasons recorded by the tribunal in the backdrop of the established facts, I am of the view that there is force in the argument of learned counsel for the appellants and no merit in the submissions of learned counsel for the respondent No.3-insurer of the offending truck.
8. The appellant No.1 examined herself as a witness and in addition to herself, she also examined one Madhu Babu Bhusum as P.W.2, who was the other coolie present on the truck at the time of the accident as her witness. Their evidence, particularly the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:28:11 ::: FA 445/06 7 Judgment admissions given in the cross-examination taken on behalf of respondent Nos.6 and 7, show that the deceased Shivlal used to bring home amount of Rs.600/- to Rs.700/- per week. This evidence also shows that the deceased Shivlal was earning not on the basis of day's work, but on the basis of the work that he used to perform per trip of the transportation of sand from river Talni. P.W. 2 Madhu Babu, in particular, has stated that the deceased Shivlal used to earn Rs.25/- for every trip of the offending truck and that there used to be average five trips that used to be made every day by the offending truck. There is nothing in the cross-examination of either of these witnesses to discard such evidence or to hold that their evidence does not probabilize the case of the appellants that the deceased used to earn on per trip basis.
9. This evidence would show that the deceased was getting Rs.600/- to Rs.700/-, but I think this has to be taken with a pinch of salt having regard to the fact that admittedly, deceased Shivlal used to work only for 18 to 20 days every month. It is also not a case that every day, he would have completed five trips of his work. So, the average trips that he completed every day could be taken to be at four per day. Thus, calculated, he would have earned about Rs. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:28:11 :::
FA 445/06 8 Judgment 400/- per week. Thus, I am of the view that the income of the deceased can be safely taken to be of Rs.400/- per week and so, his monthly income would be of Rs.1,600/-.
10. For determination of the income of self-employed persons like the deceased Shivlal in the present case, future prospects are also required to be taken into consideration. This is the law now settled in the case of National Insurance Company Vs. Pranay Sethi and others, S.L.P. (Civil) No.25590/2014, st decided on 31 October, 2017 decided by Constitution Bench of the Hon'ble Apex Court. Since the deceased was aged about 23 years at the time of the accident and in the category of self- employed persons, following the law of the Hon'ble Apex Court in the case of 'Pranay Sethi', I am of the view that 40% of the monthly income would have to be added under the head of future prospects. The appropriate multiplier in the present case, where age of the deceased was of 23 years, would be of 18 as per the case of Sarla Verma & Others Vs. Delhi Transport Corporation & Anr., (2009)6 Supreme Court Cases, 121. From this amount, 1/4th amount would have to be deducted on account of personal expenditure of deceased considering the fact that originally there ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:28:11 ::: FA 445/06 9 Judgment were four claimants, out of which, two claimants a minor son and father of the deceased expired during pendency of the claim petition. In addition to this amount, compensation under functional heads, as per Pranay Sethi and others of loss of consortium for widow, loss of estate, funeral expenses and cost of the litigation have to be added. Thus, calculated the total compensation payable to the appellants should be as under;
Sr. Heads Calculation
No.
1. Annual Income (Rs.1600 x12) Rs. 19,200/-
2. 40% of (1) above to be added as Rs. 19,200 + future prospects. Rs. 7,680 ______________ Rs. 26,880/-
3. 1/4th of (2) deducted as personal Rs. 26,880 -
expenses of the deceased. Rs. 6,720
______________
Rs. 20,160/-
4. Compensation after multiplier of Rs. 20,160 x 18 18 is applied (age 23 years of the deceased) = Rs.3,62,800/-
5. Loss of consortium for widow Rs.40,000/-
6. Loss of estate Rs.15,000/-
7. Funeral expenses Rs.15,000/-
8. Cost of litigation Rs.15,000/-
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FA 445/06 10 Judgment
Total Compensation ... Rs.4,47,880/-
Less: Compensation awarded Rs.1,72,700/-
________________ Total enhancement Rs.3,75,180/-
11. In view of above, I am of the view that the amount of Rs.4,47,850/- would be the amount of compensation payable to the appellants in just and proper manner, which is inclusive of what is already granted by the Tribunal.
This amount shall be inclusive of the amount received on account of no fault liability and shall carry interest at the rate of 9% per annum from the date of petition till realisation.
Out of this amount, 50% of the amount shall be paid by the respondent Nos.1 and 2, jointly and severally and remaining 50% amount shall be paid by the respondent Nos.4, 5, 6 and 7 jointly and severally.
The appeal deserves to be partly allowed in these terms. Therefore, the point is answered accordingly.
Appeal is partly allowed.
The impugned judgment and order stand modified in the above terms.
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FA 445/06 11 Judgment
Parties to bear their own costs.
Appeal stands disposed of.
JUDGE
SHRIPAD
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