Bombay High Court
Bhagwat S/O Gopalrao Bhavsar And ... vs Bhagwan Budha Chambhar And ... on 4 April, 2016
Bench: V.K. Jadhav
1 FIRST APPEAL NO.134 OF
2000.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 134 OF 2000
...
1. Bhagwat s/o Gopalrao Bhausar,
age 65 years, Occ. Nil,
R/o Desaipura
Opposite Bhausar Bhavan,
Tq. Nandurbar Dist. Dhule.
2. Sou. Yamunabai Bhagwat Bhausar,
age 60 years, Occ. Household,
R/o as above. ..Appellants..
(orig claimants)
VERSUS
1. Bhagwan Budha Chambhar,
age 35 years, Occ. S.T.Driver,
R/o Khardi, Tq. Chopada,
Dist. Jalgaon.
2. Divisional Controller,
M.S.R.T.C, Divisional Office
Dhule. ..Respondents..
...
Advocate for Appellants : Mr C.R.Deshpande
Advocate for Respondents : Mr D S Bagul
...
CORAM : V.K. JADHAV, J.
Dated: April 04, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and award
passed by the learned Member, Motor Accident Claims
2 FIRST APPEAL NO.134 OF
2000.odt
Tribunal, Dhule dated 17.8.1995, in MACP NO.229 of
1991 alongwith connected claim petitions, the original
claimant in MACP No.229 of 1991 preferred this appeal
to the extent of quantum.
2. Brief facts giving rise to the present appeal, are as
follows :-
a] The accident had taken place on 29.10.1991 at
about 07.00 p.m. near Bhone Phata on Nandurbar-
Dhondaicha road. At that time, deceased Ramesh was
driving auto-rickshaw bearing registration No.MH-
18/8160 and one Umesh Mahale was travelling in the
said auto as a passenger. On the way, one S.T. Bus
bearing registration No.MTO-8734 came from the
opposite direction in high speed being driven by its
driver in a rash and negligent manner and gave dash to
the said auto-rickshaw In consequence of which, the
said Ramesh as well as passenger Umesh sustained
severe injuries. Deceased Ramesh succumbed to the
injuries in the Hospital, whereas, said Umesh sustained
injuries which resulted into permanent disability. The
parents of deceased Ramesh preferred claim petition
3 FIRST APPEAL NO.134 OF
2000.odt
before the Tribunal, Dhule.
b] The Respondent M.S.R.T.C has strongly resisted
the claim by filing the written statement. According to
the respondent/M.S.R.T.C., the driver of the auto-
rickshaw was responsible for the accident and there is
no negligence on the part of the S.T. Driver. The learned
Member of the tribunal has partly allowed the claim
petition No.229 of 1991 and thereby held that the
respondent MSRTC is liable to pay Rs.41,000/- as total
compensation. Hence, this appeal.
3. The learned counsel for the appellants-original
claimant submits that, the Tribunal has not considered
the income of the deceased Ramesh. Learned counsel
submits that, deceased Ramesh was driving the auto-
rickshaw and earning Rs.70/- to Rs.80/- per day.
Learned counsel submits that without assigning any
reason, the Tribunal has considered the income of the
deceased at Rs.30/- per day excluding the expenses of
the auto-rickshaw Learned counsel submits that, the
Tribunal has committed mistake while applying the
4 FIRST APPEAL NO.134 OF
2000.odt
multiplier by considering the age of the claimants
instead of considering the age of deceased Ramesh who
met with an accident at the age of 26 years. Learned
counsel submits that, the Tribunal should have applied
multiplier '17' instead of '5'. Learned counsel submits
that, the tribunal has not awarded the compensation
under non pecuniary heads.
4.
Learned counsel for the respondent M.S.R.T.C.
submits that, the claimant Bhagwat has admitted in his
cross examination that there are no documents with
him to show that deceased Ramesh was in fact carrying
the occupation of driving auto-rickshaw. Learned
counsel submits that, there is absolutely no evidence
that deceased Ramesh was earning Rs.70/- to Rs.80/-
per day excluding the expenses by driving the auto-
rickshaw. Learned counsel submits that, the Tribunal
has therefore rightly considered the income of deceased
Ramesh as Rs.30/- per day. Learned counsel submits
that the Tribunal has considered the age of the parents
and accordingly applied the correct multiplier for
calculation of the compensation. Learned counsel
5 FIRST APPEAL NO.134 OF
2000.odt
submits that the Tribunal has awarded compensation
towards mental pain and agony. Learned counsel
submits that, the Tribunal has awarded just and
reasonable compensation. Learned counsel further
submits that, the Tribunal has deduced 1/3 rd amount of
the income as personal expenses erroneously. Learned
counsel submits that the Tribunal should have
considered the legal position and deducted ½ of the
amount towards personal expenses since deceased
Ramesh was unmarried at the time of his death. There
is no need to interfere in the impugned judgment and
award and the appeal is liable to be dismissed.
5. So far as finding recorded by the Tribunal that the
accident had taken place on account of the rash and
negligent driving of the driver of the S.T.Bus is
concerned, same is not disputed in this appeal. The
appellant-original claimants have preferred this appeal
to the extent of quantum.
6. Death of Ramesh had taken place while he was
driving auto-rickshaw at the time of accident. It is true
6 FIRST APPEAL NO.134 OF
2000.odt
that, there is no evidence of his income, however, the
Tribunal without assigning any reason has considered
his income at Rs.30/- per day by excluding the expenses
of rickshaw. In absence of any income proof, the
Tribunal should have considered his notional income.
Both the learned counsel agreed that, at the time of
accident, i.e. in the year 1991 rates of daily wages were
Rs.40/- per day and not more than that.
7. In view of the above submissions, if notional
income of the deceased Ramesh is considered as
Rs.40/- per day, then his monthly income comes to
Rs.40 x 30 = Rs.1,200/-. In view of the law laid down in
case of Sarla Verma (Smt) and others Vs. Delhi
Transport Corporation and another reported in (2009) 6
Supreme Court Cases 121, the age of the deceased at
the time of his accidental death is required to be
considered and not the age of the claimants. It is not
disputed that, deceased Ramesh was 26 years of age at
the time of his accidental death. In view of this, for the
age group of 26-30 relevant multiplier is '17'. Thus,
7 FIRST APPEAL NO.134 OF
2000.odt
Rs.600/- is taken as monthly income of deceased
Ramesh. After deducting his ½ personal expenses, his
yearly income comes to Rs.600 x 12 = Rs.7,200/-. If
same is multiplied by multiplier '17' (7,200 x 17) it
comes to Rs.1,22,400/-. It appears from the impugned
judgment and award that, the Tribunal has not awarded
the compensation under the non pecuniary heads such
as loss of estate, loss of love and affection, funeral
expenses, etc. Deceased Ramesh was the earning
member of the family and the parents were depending
on his income. In view of this, the claimants are
entitled for amount of Rs.10,000/- towards loss of
estate, the claimants are old aged parents, are entitled
to Rs.10,000/- each for loss of love and affection and
Rs.5,000/- as funeral expenses. Thus, the break up of
compensation can be categorized as under :-
1. Loss of income/dependency Rs.1,22,400/-
2. Loss of Estate Rs 10,000/-
3. Loss of Love and Affection Rs. 20,000/-
4. Funeral expenses Rs. 5,000/-
===========
Rs.1,57,400/-
===========
8 FIRST APPEAL NO.134 OF
2000.odt
Thus, the claimants are entitled for the total
compensation of Rs.1,57,400/- (Rs. One lac fifty seven
thousand four hundred only).
8. The claimants have restricted their claim to the
extent of Rs.50,000/-(Rs. Fifty Thousand). The claimant
can be directed to pay deficit court fees for the amount
as worked out herein above. Hence, I proceed to pass
the following order.
O R D E R
I. First appeal is hereby allowed with costs.
II. The Judgment and Award dated 17.8.1995
passed by the Member, Motor Accident
Claims Tribunal, Dhule in MACP No.229 of
1991 is modified as under :-
"The Respondents shall pay
Rs.1,57,400/- (Rs. One lac fifty seven
thousand four hundred only) including
the 'No Fault Liability' amount with
proportionate costs alongwith interest @
9% p.a. from the date of filing of the
application till the realization of the
amount."
9 FIRST APPEAL NO.134 OF
2000.odt
III. The appellant-claimant shall pay the deficit
court fees within a period of one month
from the date of this order.
IV. Rest of the judgment and award stands
confirmed.
V. Award be drawn up accordingly.
VI. Appeal is accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
