The Branch Manager, Oriental ... vs Smt. Shanta Wd/O Khushal Dongre & ...
2015 Latest Caselaw 206 Bom

                            1                               fa211.09.odt




                                                                   
                                           
       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                    NAGPUR BENCH, NAGPUR




                                          
                 FIRST APPEAL NO.211 OF 2009




                               
                  
     The Branch Manager, 
     Oriental Insurance Company Limited,
     M.C.V.O-14, Mumbai through the 
                 
     Senior Divisional Manager, Nagpur
     Divisional Office-1, Mount Road,
     Sadar, Nagpur.                ..........     APPELLANT
      


          // VERSUS //
   



     1. Smt. Shanta wd/o. Khushal Dongre,
         Aged about 24 years, Occ.Household.





     2. Kunal s/o. Khushal Dongre,
         Aged about 1 year, Occ. Nil.
     3. Hina d/o. Khushal Dongre,
         Aged about 3 months, Occ.
         Petitioner Nos. 2 and 3 are minors





         through Natural Guardian petitioner
         no.1.
         R/o. Madhavrao Daulatrao Dhole,
         c/o. Sudhakar Nimkar, at post
         Sonegaon, Tahsil Kalmeshwar,
         District Nagpur.




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     4. Ramprasad s/o. Mahadeo Gupta,
         Aged major, Occ.owner, r/o.




                                                                       
         Doaba Roadways, G.E. Road,
         Dist. Doro (M.P.).
     5. Deleted as per order of Registrar 




                                               
         (Judicial), dt.9.2.2010.
     6. Shobha w/o. Jagannath Dongre,
         Aged about 50 years, Occ.Nil.
     7. Ku. Kusum d/o. Jagannath Dongre,




                                              
         aged about 17 years, Occ. Student.
     8. Ku.Durga d/o. Jagannath Dongre,
         aged about 15 years, Occ. Student.
     9. Bharatram s/o. Jagannath Dongre,




                                  
         aged about 18 years, Occ. Student.
                   
         All r/o. Umred, Tq. Karanja Ghadge,
         Distt. Wardha.                   ..........     RESPONDENTS
                  
     -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
              Mr.D.N.Kukday, Adv. for the Appellant.
         Mrs.M.H.Pathade, Adv. for Respondent Nos.1 to 9.
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
      


                                             ********
   



              Date of reserving the Judgment         : 22.7.2015
              Date of pronouncing the Judgment    : 21.8.2015.
                                             ********





                              CORAM     :  A.P.BHANGALE,  J.

     JUDGMENT      :

1. This appeal by the Insurance Company questions

legality and validity of the impugned Judgment and Award

passed in Claim Petition No.1054 of 1999 by the Member,

3 fa211.09.odt

Motor Accident Claims Tribunal, Nagpur on 25.10.2005

thereby allowing the Claim Petition with costs and directing

respondent nos. 1 and 2 therein to pay Rs.9,15,000/- to the

petitioners and respondent nos. 4 and 7 jointly and

severally with future interest @ 7.5 % p.a. from the date of

petition till realisation excluding future interest from

4.10.2000 to 7.7.2003.

2.

Brief facts are that, on 17.7.1999 deceased Khushal was

driving Hero Honda Motor Cycle bearing registration No.MH-

31 B-7888 from Borgaon to Karanja. At about 6.00 p.m. Near

Borgaon Fata, truck bearing registration No.MP-32/3153

owned by respondent no.4 and insured with the appellant

coming from opposite direction in high speed gave dash to the

motor cycle of deceased and ran over him. Victim Khushal

suffered fatal injuries and died on the spot. It is contended

that the accident occurred due to rash and negligent driving of

Truck No.MP-32/3153.

4 fa211.09.odt

3. The Insurance Company preferred this appeal on the

ground that compensation awarded is unjust and excessive in

the facts and circumstances of the case. According to the

appellant, learned Member of the Motor Accident Claims

Tribunal erred to pass Award in favour of the claimants.

4. The appeal is opposed on the ground that the Award

amount is grossly insufficient considering that the age of

deceased was only 27 years and he was earning a salary in the

sum of Rs.6,103/- p.m. It is submitted that the learned

Member of the Tribunal failed to consider 50 % increase in the

salary in near future as the deceased was working as a Gram

Sewak and considering the number of dependents on him, the

amount of compensation could have been fixed higher than

what is awarded. It is urged that it is duty of the Tribunal to

award just, proper and reasonable compensation irrespective

of claim.

5. The learned Counsel for the respondents/claimants

made a reference to the ruling in the case of Babu Lal and

5 fa211.09.odt

Others .vs. D.T.C. And another reported in 2013 (1) T.A.C.

844 (Delhi) to submit that in case of deceased, aged about 22

years, at the time of his death, loss of dependency was fixed

by the Delhi High Court considering his monthly income

multiplied by 12 minus 1/3rd amount towards self-expenses

and applied multiplier of 18 and separate compensation was

awarded on account of love and affection, consortium, loss of

estate, funeral expenses and compensation towards

transportation of dead body. It is submitted that the learned

Tribunal ought to have granted just, fair and reasonable

amount of compensation.

6. Reference is also made to the ruling in the case of

Rajesh and Others .vs. Rajbir Singh and Others reported in

2013 ACJ 1403 by three Judges Bench of the Supreme Court,

wherein the Apex Court considered not only salary of the

deceased, but prospective increases of 50 % of the salary

added as future prospects and after deduction of 1/4th of the

amount towards personal expenses of deceased, multiplier of

16 was applied in the case of deceased who was aged about

6 fa211.09.odt

33 years. Thus, it is contended that, in the present case, in

view of the ruling in the case of Sarla Verma and Others .vs.

Delhi Transport Corporation and another reported in 2009

ACJ 1298 compensation amount could have been determined.

It is submitted that there was evidence in the present case to

indicate that deceased Khushal Dongre was employed as a

Gram Sewak. Panchayat Samiti, Karanja and he was earning a

salary of Rs.6,103/- in the month of June, 1999. There were

prospective increases to the salary as Gram Sewak which

could have been considered by the learned Tribunal. He was

27 years old at the time of accident.

7. I am satisfied that the Tribunal recorded findings

correctly that the accident occurred as a result of rash and

negligent driving of the offending motor vehicle bearing

registration No.MH-32/3153 and the Insurer and the

driver/owner were correctly held liable jointly and severally to

pay the amount of compensation.

7 fa211.09.odt

8. So far as calculation of amount of compensation is

concerned, after deductions from the salary of Rs.6,250/- p.m.

the salary available to the deceased was of Rs.5,459/-. He

was living along with his family members (claimants) who

were totally dependent upon him i.e. his widow and two

minor children. Thus, considering monthly income of Rs.5,459

p.m. x 12, a sum of Rs.65,508/- is annual income of victim, to

which prospective increases by way of income to the extent of

50 % will add (i.e. Rs.32,750/-) = Rs.65,508/- + Rs.32,750/-

= Rs.98,258/- x 18 = Rs.17,68,644/- minus 1/3rd amount

towards personal expenses of deceased of Rs.5,89,548/-.

Thus, it comes to Rs.11,79,096/- + loss of consortium

Rs.50,000/-, loss of care and guidance of minor children

Rs.50,000/-, funeral and transportation expenses Rs.25,000/-.

Thus, total amount comes to Rs.13,04,096/-, which amount

in the facts and circumstances of the case would be just and

reasonable compensation amount payable together with

interest @ 7.5 % p.a. from the date of petition till realisation

of the entire amount. The Award needs to be modified

accordingly in view of the legal position stated by rulings

8 fa211.09.odt

(supra) cited on behalf of the respondents/claimants to press

for just and reasonable amount of compensation.

9. In the result, the appeal is dismissed. The appellant

herein and Respondent No. 4 herein shall jointly and severally

pay Rs.13,04,096/- to respondent nos. 1 to 3 herein and

respondent nos. 6 to 9 herein with future interest @ 7.5 %

p.a. from the date of petition i.e. 8.9.1999 till realization

excluding future interest from 4.10.2000 to 7.7.2003. The

Award is modified thus to that extent.

The record and proceedings be sent back to the

Tribunal.

JUDGE

jaiswal