The Manager vs Suchita W
2013 Latest Caselaw 299 Bom

                                       1                     fa426.13.odt


    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                   
                  NAGPUR BENCH, NAGPUR.




                                           
                  First Appeal No.426 of 2013

    The Manager, Bajaj Allianz
    General Insurance Co.Ltd., Pune,




                                          
    Through the Senior Executive
    Legal, 219-221, 3rd Floor,
    Shriram Tower, Near NIT Building,




                                 
    Sadar, Nagpur.                           ..... Appellant.
                      ig    :: versus ::

    1. Suchita wd/o Vijay Choudhari,
                    
    Aged about 44 years,
    Occupation Household.

    2. Roshan S/o Vijay Choudhari,
      


    Aged about 22 years,
    Occupation Education.
   



    3. Ku. Radhika D/o Vijay Choudhari,
    Aged about 18 years,





    Occupation Education,
    All R/o Oppo. Daterao Mangal
    Karyalaya, Rajapeth, Amravati,
    Tq. and District Amravati.





    4. Mr. Sheikh Khjaja Kureshi,
    Aged about Major,
    Occupation Business
    as Travelling Agency and owner
    of Truck No.MH-29/M-82,
    R/o Kamgar Nagar,


                                                                   .....2/-




                                           ::: Downloaded on - 23/12/2013 20:33:31 :::
                                       2                        fa426.13.odt


    State Bank Road,
    Yavatmal, Tq. and District Yavatmal.




                                                                     
    5. Shaukat Shaha Roshan Shaha,




                                             
    Aged about Major, Occupation Driver
    Of Truck No.MH-29/M-82.
    R/o Ramrahim Nagar, Yavatmal.           ..... Respondents.




                                            
    ==========================================
           Shri D.N.Kukday, counsel for the appellant.
           Shri V.A.Kothale, counsel for R-1 to 3.
           Shri R.S.Kurekar, counsel for R-4 & 5.




                                  
    ==========================================

                       
                        CORAM : A. P. BHANGALE, J.

DATE : 09th DECEMBER, 2013

ORAL JUDGMENT.

1. Heard the learned counsel appearing for both the

parties.

2. This appeal is preferred, against judgment and award

dated 23.9.2011, passed by the learned District Judge-1

and Member, Motor Accident Claims Tribunal, Amravati, in

MACP No.140 of 2009, by appellant - The Manager, Bajaj

Allianz General Insurance Co.Ltd., Pune, whereby the

.....3/-

3 fa426.13.odt

claim, by the widow of the deceased and two children viz.

aged about 22 and 18 years respectively, was allowed in

the sum of Rs.10,30,556/- along with interest at the rate

of 7.5% per annum from the date of petition till

realization.

3. Shri D.N.Kukday, learned counsel appearing for

appellant - Bajaj Allianz General Insurance Co.Ltd.,

submitted that in the facts and circumstances, stated by

the claimants, the awarded sum was excessive and

exorbitant as the learned Member of the Tribunal could

not have awarded the compensation by applying

excessive multiplier "14". He has invited my attention to

the fact, that one of the claimants Roshan, who was aged

about 22 years old, is a major and could have earned on

his own after completion of his education in near future

while another claimant Kumari Radhika, who was aged

about 18 years old, was of marriageable age. Widow

Suchita, whose age is mentioned as 44 years old while

victim of the accident was aged about 55 years and 7

months old. The victim was in service serving as a

.....4/-

4 fa426.13.odt

"Clerk" in APMC at Amravati.

4. It is contended by the claimants that the deceased

was having salary in the sum of Rs.8,938/- per month, as

also in the evidence. Under these circumstances, even

the learned Member of the Tribunal, in the course of the

discussion, in the impugned judgment and award, in

paragraph No.23, observed, thus :

"Therefore, if the age of the

deceased as 55 years and 7 months is considered, factor applicable would be of "9". "

Thus, the learned counsel appearing for the appellant

submitted, that multiplier "14" was wrongly applied by

the learned Member of the Tribunal and the

compensation could have been granted reasonably and

justly by applying appropriate multiplier of "9" even in

view of Sarla Verma's case considering that the victim

was nearing his retirement and 55 years plus. While on

the other side the learned counsel appearing for the

respondents claimants contended with reference to the

.....5/-

5 fa426.13.odt

ruling in the case of Rajesh and others ..vs.. Rajbir

Singh and others, reported at (2013) 9 SCC 54, to

argue that Sarla Verma ruling was referred to by the

Apex Court and the compensation was awarded on the

basis of the prospective increases added to the salary

and by applying appropriate multiplier. My attention is

invited to the "Tabular Details" mentioned in paragraph

No.19 of the said ruling to submit that, in that case loss

of consortium in the sum of Rs.1.00 Lac, loss of care and

guidance for minor children in the sum of Rs.1,00,000/-

Lac and funeral expenses in the sum of Rs.25,000/- were

awarded respectively.

5. In my opinion, the case of Rajesh and others ..vs..

Rajbir Singh and others, cited supra, was with reference

to the Special Leave Petition entertained by the Apex

Court and the controversy before the Supreme Court was

regarding the deceased working as a "Clerk" in a School

under the Education Department in the State of Haryana.

In that case, the salary per month was stated in the sum

of Rs.9,520/- per month to which considering age of the

.....6/-

6 fa426.13.odt

victim which was around 40 years, prospective increases

in the sum of Rs.4,760/- per month were added and the

Apex Court then considered the number of claimants to

deduct 1/4th of the amount towards personal expenses

and then by applying multiplier of "16", the

compensation amount was arrived at.

While considering the judicial precedent, this Court

also have to bear in mind the peculiar circumstances of

the case.

In the present case, victim Vijay was 55 years

and 7 months old at the time of accident and would have

retired on superannuation at the age of 58 years.

Therefore, the multiplier, as also prospective increases in

the income, as considered by the Apex Court so as to

award compensation, the same principle which relates to

the State of Haryana, would not be squarely applicable in

the facts and circumstances of the present case, because

the compensation which is to be awarded is just and fair

and reasonable and not jackpot for the claimants.

6. In the present case, claimant Suchita is widow, her

age is mentioned as 44 years while other claimants have

.....7/-

7 fa426.13.odt

already attained the age of majority and they are likely to

earn on their own in the near future. This fact has to be

borne in mind while awarding the compensation in the

present case. Considering the salary, in the evidence,

Rs.8,938/- multiplied by "12", it comes to Rs.1,07,256/-

and then multiplied by "9" as applicable multiplier, I think

is proper compensation considering that the claimant

widow would be solely dependent but other claimants

may earn on their own in near future after completion of

their education. One of the claimants who is of

marriageable age would marry and leave the home to

reside with her husband.

7. Considering all these pros and cons in the facts and

circumstances of the case, if we calculate the amount

after deduction of 1/3rd notional personal expenses,

which the deceased could have spent for his own, the loss

of dependency sum would come to Rs.71,508/-.

Regarding prospective increases in the salary considering

age of superannuation of the victim in near future, the

amount of Rs.71,508/- for loss of dependency per year

.....8/-

8 fa426.13.odt

was considered. Then towards prospective addition 15%

amount will have to be considered. At least amount of

Rs.30,000/- would be payable and added towards the

prospective increases and reasonable sum of Rs.25,000/-

towards loss of love and affection for children and Rs.

50,000/- for loss of consortium for widow and sum of Rs.

25,000/- towards funeral expenses. Thus the total sum of

Rs.1,30,000/- can be added to the compensation. Total in

the sum of

Rs.7,73,572/- is reasonable and just

compensation payable to the claimants in this case upon

considering the age of the widow. Therefore the award is

modified accordingly.

8. In the result, the appeal is partly allowed. The

appellant, owner and driver shall be jointly and severally

liable to pay the reasonable sum of Rs.7,73,572/ (instead

of sum of Rs.10,30,556/-) to the claimants inclusive of

"no-fault liability" amount along with interest at the rate

of 7.5% per annum from the date of petition till

realization.

.....9/-

9 fa426.13.odt

9. Out of the amount deposited by the appellant - Bajaj

Allianz General Insurance Co.Ltd., in this Court, the

amount awarded and calculated as above, shall be

disbursed in favour of the claimants and balance amount,

or surplus, if any, be refunded to the appellant. The

amount deposited, if any, in this Court, be transmitted to

the Tribunal for disbursement pursuant to final award. No

order as to costs.

JUDGE

!! BrWankhede !!

...../-