Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 10 December, 2013
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 625 of 2002
Appellant : Oriental Insurance Company Limited,
through its Divisional Manager, having its
Office at near Assembly Hall, Civil Lines,
Nagpur
igversus
Respondents : 1. Ashok son of Sukhdeo Patil, aged about
27 years, occ: business
2. Smt Satyafula w/o Ashok Patil, aged about
25 years, occ: Household
3. Ajabrao son of Shrawan Gaurkhede, aged
about 41 years, resident of Sillori, Post
Adasa, Tahsil Saoner, District Nagpur
4. Tarachand Mahadeorao Gaurkhede .. Deleted
Mr D. N. Kukdey, Advocate for appellant
Mr J. J. Katariya, Advocate for respondents no. 1 and 2
Respondent no. 3 served
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2
Coram : A. P. Bhangale, J
Dated : 10th December 2013
Judgment
1. Feeling aggrieved by the award dated 30.4.2002 passed by the
Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 305 of 1992
granting compensation of Rs. 2,02,000/- in favour of respondents no. 1 and
2, appellant Insurance Company has filed present appeal.
2. Facts
, in brief, are as under :
Claimant Ashok was sleeping with his son Shudhodhan at
village Sillori, his in-laws' place by the side of house. Tractor bearing
registration No. MH-31/G-3353 and Trolly No. MH-31/5580 driven by
original respondent no. 1, owned by respondent no. 2 and insured with
respondent no. 3 driven in reverse direction dashed against the cot on
which two were sleeping. Shuddhodhan fell down and Trolly ran over him
as a result of which he died on the spot.
3. Respondents no. 1 and 2 (driver and owner) of the Tractor/
Trolly did not respond to the notice. Respondent no. 3 Insurance
Company resisted the claim on the ground that accident was caused due to
the negligence of respondent no. 2 since he with his son was sleeping by
the side of road. Besides, respondent no. 1 driver was not holding valid
driving licence and, therefore, there was breach of policy conditions.
4. The Tribunal held that accident was caused due to negligence
of respondent no. 1. The Tribunal granted Rs. 50,000/- to the claimants as
compensation towards loss of life on account of loss of claimant's only son
and for plight, agony and miseries suffered by family members. Even
though Shudhodhan was aged about 2 years, the Tribunal considered
statutory notional income and held that after attaining majority, he would
have earned Rs. 15,000/- per year and after deducting 1/3rd amount
towards his personal expenses, the compensation as per structural formula
would have come to Rs. 10,000/- per year only. The Tribunal applied "15"
as multiplier and thus awarded Rs. 2,02,000/- to the claimants.
5. Learned counsel for appellant contends that respondent no. 1
was not holding valid driving licence and as such, no liability should have
been fastened against the insurer. He strenuously contended that deceased
was only two years old and therefore, there was no question of any loss of
dependency or any income being earned by the deceased at least for a
period of sixteen years more till the deceased attained majority. He further
contends that consequently the compensation of Rs. 1,50,000/- awarded by
the Tribunal by taking a notional income of the deceased at Rs. 15,000/-
per annum and applying multiplier of 15 years is entirely unfounded.
Learned counsel argued that the Tribunal erred in working out the
notional compensation by adopting the pre-structured formula under
Section 163A of the Act particularly when the said provision was non-
existent on the date of incident and it was introduced for the first time by
Act No. 54 of 1994 with effect from 14.11.1994. In the alternative, learned
counsel for appellant contends that the Tribunal should have awarded
compensation inclusive of the one awarded under Section 92A of the
Motor Vehicles Act, 1939 in the sum of 25,000/- with interest @ 15% per
annum.
6. When victim of the motor vehicle accident is child, aged two
years, the immediate loss to parents of the child is huge, non-pecuniary or
cannot be compensated in terms of money. There are immense pains and
sufferings for parents and family members of child. A child is lost for ever.
If it is only child, loss would collosal felt constantly during life-time of
parents. Of course, it is not in dispute that age of the parents would be
relevant in such case. In the present case, during the pendency of appeal,
father of the victim child is reported to be dead on 27.5.2007 and
respondent no. 2 is the only surviving legal representative for the victim.
We have to bear in mind that deceased Shudodhan was the only child of
respondents no. 1 and 2. In these circumstances, although plethora of
rulings has been cited by learned counsel for the applicants and respondent
Satyafula, I think it cannot be disputed that the Tribunal or the Court is
under obligation to award just, fair and reasonable compensation to the
dependent or legal representatives of the victim in motor vehicle accident
and not bonanza. Having regard to the facts in the present case, mother of
the child is left alone and compensation was granted only in the sum of Rs.
2,02,000/- with interest at the rate of 9% per annum from the date of
petition. Although it is urged that father of the victim child is no more
living and compensation may be reduced on account of that fact. Hence, I
am not inclined to reduce the compensation considering the relevant
factors such as growth of inflation, rising prices of essential commodities.
Victim's mother is left alone to fact rigors of life. Learned counsel for
respondent Satyafula argued for enhancement of compensation amount but
without there being any cross-objection filed in the present case for
enhancement of compensation nor any separate appeal was filed by
claimant for enhancement of compensation. Looking to the quantum of
compensation awardable for loss of love, agony, plight and misery which is
awarded only in the sum of Rs. 50,000/- in this case while sum of Rs.
1,50,000/- was awarded on the basis of notional income of Rs. 15,000/-
per year from which there was notional deduction of 1/3rd amount thus
restricting annual income to Rs. 10,000/- and multiplied by 15 and funeral
expenses of Rs. 2000/-, total compensation sum was awarded. In the facts
and circumstances of the case, therefore, when only sole surviving claimant
is living, I think sum of Rs. 2,02,000/- along with interest @ 9% per annum
from the date of petition till realization of the amount can be considered as
just and reasonable compensation. It and would not require any
interference in this appeal as the compensation awarded appears just and
fair inclusive of no fault liability.
7. In the result, appeal is dismissed with costs.
A. P. BHANGALE, J
joshi
