Bombay High Court
Nagpur Bench: Nagpur vs Unknown on 30 October, 2012
Bench: M.N. Gilani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
FIRST APPEAL NO. 770 / 2007
APPELLANT:
The New India Assurance Company Limited, having its
Branch at Dhantoli, Nagpur, through the Regional Manager,
The Regional Office, Dr. Babasaheb Ambedkar Bhawan,
Seminary Hills, Nagpur 440 006.
VERSUS
RESPONDENTS:
1] Smt. Sunita wd/o Satyagrah Patil, aged about 40 years,
occupation : household
2] Mayur s/o Satyagrah Patil, aged about 23 years, occupation :
Not known
3] Badal s/o Satyagrah Patil, aged about 20 years, occ :
Education / Student
4] Akash s/o Satyagrah Patil, aged about 16 years, occupation :
Education / Student.
The respondent no.4 being minor through his natural
guardian - Mother - Respondent No.1 Smt. Sunita
Satyagrah Patil
5] Ziblabai wd/o Nagoraoji Patil, aged about 65 years, occ :
Household work
The respondent no.1 to 5 all r/o Surendranagar, r/o Wani,
District: Yeotmal
6] Gurva s/o Nirjan Singh aged major, occ : driver, r/o Near
Panchpawali Post Office, Nagpur District : Nagpur [deleted
by order dated 7.10.2008
7] Inderpreet Daljeet Singh Tuli, r/o G.E. Road, Tatibandh,
Raipur at and post Taluka and district : Raipur [M.P. -
Chattisgarh]
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Mr. A.J. Pophaly, advocate for appellant
Mr. Bharat Vora, advocate for respondent no.1 to 5.
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CORAM: M.N. GILANI, J.
DATE: 30/10/2012.
ORAL JUDGMENT:
This appeal arises from the judgment and award dated
7.6.2007 passed by the Motor Accident Claims Tribunal, Yavatmal
in Claim Petition No.229/2000 whereby the claimants were
awarded compensation of Rs.20,40,000/- on account of death of
Satyagrah Patil which occurred on 25.12.1994 in a motor
vehicular accident involving motor cycle MH-29E-7168 and the
truck bearing no MO- 23D/9241.
2] On the fateful day the deceased was riding pillion on
the motorcycle which was being driven by one Ghanshyam.
When the motorcycle reached near M.I.D.C. Lohara on Yavatmal -
Darvha Road, a truck coming from opposite direction dashed
against it. Driver - Ghanshyam survived, but the deceased
Satyagrah came under the wheels of the truck and died. At the
time of death the deceased was serving as a welder with the
Western Coalfields Limited. Having regard to his age and the
salary drawn by him, the learned Tribunal considered the loss of
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dependency at Rs.120,000/- p.a. and by applying multiplier of 17
awarded compensation as stated above.
3] The New India Assurance Company Limited -
appellant herein has assailed the award mainly on two grounds.
Firstly, it is contended that deceased also contributed in causing
accident and therefore, the liability ought to have been
apportioned between the owner of the truck and the motorcycle.
The second contention is that the learned Tribunal committed error
in arriving at the figure of loss of dependency which according to
the learned counsel for the appellant is inconsistent with the
evidence on the record and there is further error in choosing
multiplier of 17.
4] Mr. Vora, learned counsel appearing for the
respondents/ original claimants, supported the judgment and
award.
5] The points that arise for my consideration are :
A] Whether the driver of the motorcycle
contributed in causing the accident, if
yes, to what extent?
B] Whether the quantum of compensation
awarded by the Tribunal is exorbitant
and de-hors the evidence on record?
6] Ghanshyam the driver of the motorcycle has been
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examined by the claimants. He deposed that on 25.12.1999 he and
deceased were proceeding on the motorcycle from Yavatmal to
village Umarda. It was 3.30 p.m. When the motor vehicle reached
near M.I.D.C. Lohara, he saw offending vehicle i.e. truck coming
from the opposite direction in high speed. Although he was
keeping left the truck dashed against the motorcycle. After the
dash the deceased fell on the right side and came under the wheels
of the truck. Death occurred instantaneously. In his cross
examination, suggestions were given to point out that at the spot
there was a turning and it was not possible for him to notice the
truck coming from the opposite direction. In further part of his
cross examination he stated that he was keeping left and because
of the negligence of the driver of the truck, accident occurred. The
police after investigation registered offence against the driver of
the truck which is evident from the copy of the First Information
Report Exhibit 40. In the spot panchnama Exhibit 41, there is no
mention of the fact that on the spot the road was curved. The
panchnama being so cryptic, nothing can be gathered about as to
who was at fault. Thus there remains evidence of Ghanshyam
which is corroborated by his previous statement at exhibit 43. In
that view of the matter, the learned Tribunal was justified in
holding that the accident occurred due to rash and negligent
driving of the truck.
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7] D.W. 3 - D. Manogaran has been examined to prove
the details of service and salary drawn by the deceased while he
was alive. According to this witness the deceased was appointed
as helper on 11.8.1988. Since the year 1992 he started serving as
welder. He was permanent employee of the department. His death
of birth was 22.1.1966. On record the salary slips under exhibit 55
have been placed. However, these salary slips are upto March
1998. There is a statement at exhibit 58 which indicates the future
salary of the deceased. Salary for the month of January i.e. for
next month of the death of the deceased, was Rs.7,457/- which
includes basic and dearness allowance. Instead of considering
quantum of his salary, the learned Tribunal assumed the salary of
the deceased at Rs.27,000/-, mainly on the basis of the future
increase. The correct approach would be to assume income of the
deceased at Rs.7000/- per month.
8] Mr. Vora, learned counsel relied upon the case Santosh
Devi ..vs.. National Insurance Company Ltd & ors reported in
II(2012)ACC 377(SC), to support his contention that considering
the age of the deceased and long spell of remaining service tenure
30% increase will have to be added. Thus, 7000 X 12 =84,000
+30% increase i.e. 25200/-, that means the total annual income
which will have to be assumed for fixing the amount of
compensation approximately comes to Rs.1,09,000/-. The Tribunal
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deducted 1/3 of the amount towards personal and living expenses
of the deceased had he been alive. As laid down in case of Sarla
Verma (Smt) And Others ..vs.. Delhi Transport Corporation &
Another reported in (2009) 6 SCC 121, if the number of
dependents are 4 to 6, the deduction has to be ¼. Adjusting the
amount of deduction the total amount of loss of dependency
approximately can be worked out at Rs.83,000/-. The learned
Tribunal applied multiplier of 17. However, in case of Sarla Verma
[supra] the multiplier for the age group of 31-35 years is 16.
After applying this multiplier the compensation to which the
claimant would be entitled under all the heads is as follows:
Rs.83,000 X 16 = 13,28,000 + 10,000 loss of consortium,
+5000 towards loss of funeral expenses + 10,000 towards
loss of love and affection. The total comes to Rs.13,53,000/-,
rounded at Rs.13,55,000/-. To this extent the judgment and
award impugned will have to be modified.
9] The appeal succeeds partly. The judgment and award
passed by the learned Tribunal is modified as under:
A] Claimants would be entitled to the total amount of
Rs.13,55,000/- inclusive of no-fault liability amount, with
interest @ 7.5% from the date of filing of the application
[From 31/1/2000] till the date of its realisation /deposit.
B] Till date an amount of Rs.7,50,000/- has been
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withdrawn by the claimants. In that view of the matter, the
apportionment of the compensation shall be as under:
C] The amount of Rs.6,00,000/-[Rs. Six lakh] be invested
in the name of the claimant/ respondent no.1 Sunita wd/o
Satyagrah Patil for a period of five years or more with an
arrangement that she shall receive the interest accrued thereon
monthly or quarterly and on maturity, she shall receive the
entire amount without reference to this court.
D] The amount of Rs.1,00,000/-[Rs. One lakh] be invested
in the name of Ziblabai Patil for a period of 2 to 3 year, with
an arrangement that she shall receive the interest accrued
thereon monthly or quarterly and on maturity she shall receive
entire amount without reference to this Court.
E] The amount of Rs.1,00,000/- [Rs. One lakh] each be
deposited in the name of the respondents /applicant no.2,3,4
for a period of 2-3 years with a direction to receive the
amount on maturity without reference to this court. Balance
amount be paid by cross cheque to respondent no.1.
F] No order as to costs.
JUDGE
SMP.
