Bombay High Court
National Insurance Co. Ltd vs Smt. Maya W on 18 December, 2013
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.2 OF 2004
National Insurance Co. Ltd.,
Through its Divisional Manager,
Division Office No.2,
Ajni Square, Nagpur. .......... APPELLANT
// VERSUS //
1. Smt. Maya wd/o. Ganesh Wath,
Aged about 23 years., Occ. Household.
2. Gajanan s/o. Ambaji Wath,
Aged about 62 years, Occ. Nil.
3. Smt. Shantabai w/o. Gajanan Wath,
Aged 58 years, Occ. Household.
4. Ku. Neha d/o. Ganesh Wath,
Aged 4 years, Occ. Student.
5. Nikhil s/o. Ganesh Wath,
Aged about 3 years.
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All r/o. Shahu Layout,
Plot No.13/2, Wadi, Nagpur.
Respondent nos.4 and 5 through
Respondent no.1 their natural
Guardian i.e. mother.
6. Gurdishsingh s/o. Gopalsingh
Channa, aged about 32 years,
Occ. Business, r/o. Madan Chowk,
Macchipal, Kamptee, Tah.
Kamptee, Distt. Nagpur.
7. Deleted. ..........RESPONDENTS
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Smt. Smita P. Deshpande, Adv. for the Appellant.
Mr.A.C.Dharmadhikari, Adv. for respondent nos.1, 4 and 5.
Mr.S.N.Kumar, Adv. for respondent nos.2 and 3.
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CORAM : A.P.BHANGALE, J.
DATE : 18.12.2013.
ORAL JUDGMENT :
1. This appeal is filed challenging the Judgment and
Award dt.11.7.2003 passed in Claim Petition No.862 of
1998 whereby the learned Member of the Motor Accident
Claims Tribunal, Nagpur awarded a sum of Rs.7,45,000/-
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only inclusive of interim compensation on the ground of no
fault liability under Section 140 of the Motor Vehicles Act,
1988 together with interest @ 9 % p.a. from the date of
petition till realisation.
2. The facts, briefly stated, are as under :
Ganesh - a Grocery Merchant, aged about 33 years
old was proceeding by a Scooter bearing registration
No.MH-31 U-532 on Nagpur-Kamptee road on 3.6.1998.
When the scooter was between Akashwani and Mohd. Ali
petrol pump, the offending motor vehicle i.e. truck bearing
registration no.MH-31 W-3492 dashed the scooter causing
death of Ganesh. Ganesh left behind his widow, parents
and two minor children aged about four years and three
years respectively. According to the claimant, Ganesh was
earning a sum of Rs.9,000/- per month out of grocery sale
business and his wife was provided with the sum of
Rs.5,000/- per month from the said business to run family.
Dependents included aged parents as well as minor
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children besides widow of the deceased. It is not in dispute
that the offending motor vehicle i.e. truck was insured with
the appellant on the date of the accident. The factum of
accident is also not in dispute as found by the learned
Member of the Tribunal. However, the learned Counsel for
the appellant disputed quantum of the amount which is
awarded on the ground that there was no reliable and
acceptable evidence to believe that Ganesh (deceased) was
running grocery business and was earning a sum of
Rs.9,000/- p.m. The learned Counsel for the appellant,
therefore, prayed that the appeal needs to be allowed as
there was no evidence to award the sum of Rs.7,45,000/-.
She also contended that penal interest @ 12 % should have
been granted as the Insurance Company is in possession of
public money.
3. On the other hand, the learned Counsel for the
respondents contended that there was adequate evidence
before the Tribunal in the form of evidence of widow of the
deceased who deposed about nature of business which the
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deceased was running during his life time. Maya w/o.
Ganesh Wath deposed before the Tribunal on the point of
financial income of her husband. She stated that he was
running a grocery shop and the shop was housed at their
residence in the name and style as 'Ganesh Kirana Stores
and Anaj Bhandar', in which they had engaged two servants
and the net income of her husband was Rs.9,000/- p.m., of
which Rs.5,000/- p.m. was made available to her per month
after managing the other required expenses. She also relied
upon the receipts regarding payment made to the
Government on account of food grains permit, taxes,
documents produced along with list (Exh.24) and
photographs listed along with Exh.36 of the grocery shop. It
may be noted that Ganesh and his family were residing in
the building consisting of eight rooms, of which four rooms
were let out and they were using four rooms for shop and
as a residence of the family. It may also be noted that father
of Ganesh was owning eight acres of land and 7/12 extracts
(Exh. Nos.38 to 42) were produced. They also had milk
business. According to widow of Ganesh, after death of her
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husband, she had to stay with her parents as parents of
Ganesh were not providing any financial assistance to her
and she had to maintain her minor children. Maya also
deposed that her husband had obtained loan for opening
grocery shop and the loan was repaid from the amounts
from the L.I.C. She placed reliance upon the document
(Exh.24) to prove this. This evidence which also refers to
documents cannot be considered as unreliable or
unacceptable even assuming that Ganesh was not income
tax assessee in respect of income from the grocery shop.
4. Copies of the police papers such as F.I.R., spot
panchanama, Post mortem reports were also produced
before the Tribunal apart from the documents referred to
by Maya, wife of the deceased. Father of the deceased
Ganesh also entered in the witness box to depose that he
along with his wife were dependent upon Ganesh.
5. Considering this evidence led before the Tribunal, it
does appear that the Tribunal proceeded to consider it
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accepting it so as to calculate and award just and
reasonable amount by way of compensation. Although it
was claimed that income of the deceased Ganesh was in the
sum of Rs.9,000/- p.m., calculations were made by the
Tribunal on the basis that sum of Rs.5,000/- was income
from the grocery business of the deceased, which was
available to the family as dependents per month.
Considering the number of dependents of the deceased as
mentioned in the evidence before the Tribunal and the
calculations made by the learned Member of the Tribunal,
when the reasons recorded by the learned Member are
considered in juxta position with the evidence recorded and
produced on record, it cannot be said that the amount
awarded was exorbitant or unreasonable. The learned
Member, however, ought not to have awarded penal
interest @ 12 % p.a. which appears on higher side and
excessive. I am only inclined to set aside portion of the
order regarding direction to pay penal interest @ 12 % p.a.
upon failure of the Insurer/Tribunal and the owner of the
offending motor vehicle truck to pay the same within time.
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Considering the income as well as loss of dependency
during expected span of life of the deceased, multiplier of
"17" was applied bearing in mind that the deceased was
only aged about 33 years of age at the time of his death and
accident. Loss of consortium for widow was awarded in the
sum of Rs.20,000/- and for loss of love and affection for
family members and loss of estate, a sum of Rs.40,000/-
was awarded, while funeral and ambulance charges were
awarded in the sum of Rs.5,000/- only. Even 1/3rd
deduction was considered towards personal expenses from
the compensation calculated on the basis of loss of
dependency was Rs.5,000/- p.m. Thus, considering the
facts and circumstances of the case, no valid ground is
made out for interference with the impugned Award except
to modify the direction for payment of penal interest in
clause (3) of the operative order. The appeal is, therefore,
partly allowed. Clause (3) of the operative order
impugned herewith with a direction to pay penal interest @
12 % p.a. need to be set aside. However, the appellant as
well as the respondent/owner truck driver are jointly and
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severally liable to pay a sum of Rs.7,45,000/- inclusive of
no fault liability to the claimants with interest @ 9 % p.a.
from the date of petition till realisation of the amount.
The amount deposited by the appellant be
transmitted to the Tribunal minus the amount awarded and
already allowed to be withdrawn.
The learned Member of the Tribunal to pass
appropriate orders pursuant to final Award for disbursal of
compensation amount awarded to the claimants.
JUDGE
jaiswal
