First Appeal No. 492 Of 1995 vs Unknown
2013 Latest Caselaw 138 Bom

                                         1

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                      NAGPUR BENCH : NAGPUR




                                                                             
                                                     
    First Appeal No. 492 of 1995

    Appellants        :     1.  Kantilal Mangilal Kothari, aged about 47




                                                    
                            years, occ: service, 

                            2. Ku Priti d/o Kantilal Kothari, aged 20 years,




                                            
                            3. Ku Smita d/o Kantilal Kothari, aged 18 years
                          
                            4. Ku Trupti d/o Kantilal Kothari, aged 15 years

                            Nos. 2 to 4, through guardian-father Kantilal
                         
                            Mangilal Kothari, all residents of Ganesh 

                            Nagar, Near Gosavi Colony, Amravati
        


                            versus
     



    Respondents       :     1.  Bhujang Bapurao Phukey, aged about

43 years, occ: Driver, resident of Rathi Nagar

(Gadge Nagar), Amravati

2. M/s Keshaorao Balkisan Agrawal, a Partnership

Firm, through its Partners (a) Balkisan Mahadeo

Agrawal, (b) Jagdishprasad Kaularam Agrawal,

Both residents of Cotton Market Road, Amravati

3. The United India Insurance Company Ltd.,

Divisional Office at Badnera Road, Amravati

Mr A. S. Mehadia, Advocate for appellants

Mr K. K. Shelke, Advocate for respondent no. 1

Respondent no. 2 served

Mr V. L. Somalwar, Advocate for respondent no.3

Coram : A. P. Bhangale, J

Dated : 13th November 2013

Oral Judgment

1.

When appellants no. 1, 4 and wife of appellant no. 1 Shobha

were standing by the side of their Luna bearing No. MGT 9046,

ambassador car bearing No. MZV 1861 driven by respondent no. 1; owned

by respondent no. 2 and insured with respondent no. 3 dashed against it

from back side. All the three received injuries. Shobha who suffered

serious injuries, was shifted to General Hospital, Amravati where she died.

According to claimants, Shobha (aged about 35 years) was self-employed

and was engaged in tailoring work. She used to earn Rs. 1500-2000 per

month from that work. Appellants claimed Rs. 3 lacs as compensation on

various counts.

3. Learned Member of the Tribunal after taking into

consideration the evidence led on record and hearing the parties, awarded

compensation of Rs. 90,000/- inclusive of interim compensation of Rs.

25,000/- together with interest at the rate of 12% per annum from the date

of application till realization of the award amount.

4. According to the claimants, the compensation so granted is

inadequate and their claim petition should have been allowed in its

entirety. Hence, this appeal.

5. To my mind, compensation awarded by the learned Member is

on lower side. Learned Member failed to appreciate that deceased Shobha

was not merely house-wife, but she was supporting the family by doing

stitching work and used to earn Rs. 1500-2000 per month. Even in case of

self-employed person, income for expectancy of life and prospective

increases in the personal income needs to be considered while awarding

just and reasonable compensation to the family members and dependents

of the deceased victim.

6. Although it was alleged by the Insurance Company that driver

was in a drunken state at the time of accident, there was no evidence on

record to substantiate that allegation.

7. Bearing in mind future prospects in the income of deceased

Shobha, the income should have been treated at least in the sum of Rs.

2000/-. Victim was belonging to the family consisting of her husband and

three minor daughters who were aged about 15, 13 and 10 years

respectively as on the date of accident. Thus, the victim had four

dependents when she died as a result of motor vehicle accident. That

being so, 25% of the amount from the sum of Rs. 2000/- is deductible.

Thus, annual loss of dependency was in the sum of Rs. 18,000/- and

considering age of the victim, appropriate multiplier "17" should have been

applied. Claimants were also entitled to funeral expenses of Rs. 5,000/-

and Rs. 10,000/- towards loss of love and affection as also Rs. 25,000/- for

loss of consortium to widower. Thus, total compensation for the fatal

accident could have been at least in the sum of Rs. 3,46,000/-. In my

opinion, reasonable interest would be 9% per annum on the unpaid sum of

compensation from the date of application till realization. Hence,

impugned Award is modified as under :

8. In the result, appeal is allowed. Respondents are jointly and

severally liable to pay a sum of Rs. 3,46,000/- towards compensation with

interest @ 9% per annum from the date of application till realization

together with costs throughout. Impugned Award stands modified

accordingly.

A. P. BHANGALE, J

joshi