Bombay High Court
Smt Thakhubai Mannubhai Jograna & ... vs Premkumar Ramawatar Sharma & ... on 5 April, 2016
Bench: Ravi K. Deshpande
1 fa.416.04.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.416 OF 2004
Appellants : 1] Smt. Thakhubai wd/o Mannubhai Jograna,
aged 45 years.
2] Sau. Zabu w/o Jaisingh Meer,
aged 25 years.
3] Ku. Janak @ Jannu d/o Mannubhai Jograna,
ig aged about 23 years.
4] Suresh s/o Mannubhai Jograna,
aged 21 years.
5] Bharat s/o Mannubhai Jograna,
aged 19 years.
6] Rama s/o Mannubhai Jograna,
aged 17 years.
7] Lakhan alias Lakha s/o Mannubhai Jograna,
aged 15 years.
8] Rennu s/o Mannubhai Jograna,
aged 12 years.
9] Smt. Jadibai wd/o Khode Jograna,
aged 70 years.
Nos. 5 to 8 minors by natural guardian mother
Smt. Takhubai Jograna.
All residents of Village Sawanga (Vithoga),
Tahsil Chandur Railway, District Amravati.
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2 fa.416.04.jud
Respondents : 1] Premkumar Ramawatar Sharma,
Aged 51 years, Occupation : Truck Driver,
R/o Dharti Chauk, Bagwar Galli, Ahmadnagar,
Tahsil and District Ahmadnagar.
2] Sharad s/o Girdharbhai Parekh,
Occupation : Truck Owner,
R/o Khedgaon, Tahsil Rahuri,
District Ahmadnagar
3] The New India Assurance Co. Ltd.,
ig through its Divisional Manager,
Division Office at Walcut Compound,
Near Old Cotton Market, Amravati.
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Ms. Akshaya Kshirsagar, Adv. h/f Shri A.S. Mardikar, Adv. for the Appellants.
Shri A.H. Patil, Advocate for Respondent No.3.
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CORAM : R.K. DESHPANDE, J.
DATE : APRIL 5, 2016
ORAL JUDGMENT :-
01] In Claim Petition No.254/2001 filed under Section 166 of
the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for the
sake of brevity), the Tribunal has awarded compensation of Rs.90,000/-
along with interest at the rate of 6% per annum from the date of filing
of the petition till its realization to be payable by the owner, driver and
insurer of the offending vehicle in question, which is a truck bearing
registration No.MH-16/B/2892 and they are held liable jointly and
3 fa.416.04.jud
severally to make the payment of compensation. The claimants are
before this Court claiming further enhancement of compensation on
account of death of Mannu Khota Jograna in the motor vehicle accident,
which occurred on 17/06/2001 at 10:00 a.m. on Badnera-Nandgaon
Khandeshwar Road. Claimant No.1 is the widow, whereas the claimant
Nos.4 to 8 are the sons and claimant No.9 is the mother of the deceased.
02] On 17/06/2001, when the deceased was proceedings with
his cows in the morning hours on Badnera-Nandgaon Khandeshwar
Road from Belora to Sawanga (Vithoba) along with his two colleagues,
the driver of the truck bearing No.MH-16/B/2892, which was coming in
speed, lost his control over the vehicle and dashed the deceased, who
suffered serious injuries and ultimately succumbed to it. Undisputedly,
the vehicle was validly insured with respondent No.3-the New India
Assurance Co. Ltd. and the insurance was subsisting on the date of
occurrence of the accident. The deceased being third party was covered
by the act policy produced on record at Exh.36. The owner and the
driver of the vehicle did not contest the case on merit, but proceeded ex
parte. The only contest was by the insurance company without having
any valid defence.
4 fa.416.04.jud
03] This appeal is preferred seeking enhancement of claim for
compensation. Ms. Akshaya Kshirsagar, the learned Counsel appearing
for the claimants has vehemently urged that the Tribunal has failed to
determine the income of the deceased and it has arrived at the finding
that the deceased was doing the business of milking cows, which can be
carried out by the other family members. She further submits that
claimant No.1 had entered the witness box and stated that the deceased
was having 30 cows and out of which, 15 were milking. The deceased
was getting 80 to 85 liters every day and was supplying it to the
Government at the rate of Rs.8/- per liter. The claim in the petition was
that the deceased was getting net income of Rs.11,400/- per month from
the business of milking and his yearly income was Rs.1,36,800/-. She
has relied upon the decisions of the Apex Court in the cases of Santosh
Devi vs. National Insurance Co. Ltd. and others, reported in (2012) 6
SCC 421 and Sanobanu Nazirbhai Mirza and others vs. Ahmedabad
Municipal Transport Service, reported in (2013) 16 SCC 719. She
submits that in terms of these decisions of the Apex Court, the claim
should have been assessed for compensation by the Tribunal.
04] The point for determination is, as under :
5 fa.416.04.jud
i. Whether the claimants are entitled to further enhancement
of compensation, if yes, to what extent ?
05] Claimant No.1 has entered the witness box and deposed
about the income of the deceased. The only question asked in the cross-
examination was that the business done by the deceased was a family
business and the suggestion was that the claimant could not assign any
reason as to how it is mentioned in the petition that his income was
Rs.6000/- per month. In the absence of any evidence about the monthly
income of the deceased, the notional income of Rs.3000/- per month
could have been taken into consideration by the Tribunal in the claim
petition under Section 166 of the Act. In the decision of the Apex Court
in Sonabanu's case (supra) relied by the learned Counsel for the
appellants, the Apex Court has stated in paragraph 18 that the
compensation has to be assessed under the various heads, which are
stated therein.
06] Keeping in view and following the table given by the Apex
Court in the said decision, the entitlement of the claimants for a total
compensation can be worked as under :
6 fa.416.04.jud
Sr.No. Heads Calculations
(i) Income Rs.3,000 p.m.
(ii) 50% of above to be added as future (Rs.3000 + Rs.1,500) =
prospects Rs.4,500 p.m.
(iii) 1/5th of (ii) to be deducted as personal (Rs.4,500 - Rs.900) =
expenses of the deceased Rs.3,600 p.m.
(iv) Compensation after multiplier of 13, as (Rs.3,600 x 12 x 13) =
the deceased was aged about 15 years. Rs. 5,61,600
(v) Loss of consortium Rs.1,00,000
(vi) Loss of care and guidance for minor
ig Rs.1,00,000
children
(vii) Funeral and obsequies expenses Rs. 25,000
(viii) Pain, loss and suffering Rs. 25,000
(ix) Medical expenses -
(x) Attendant charges and transportation -
expenses
Total compensation Rs.8,11,600
Thus, the claimants should be entitled to total
compensation of Rs.8,11,600/-.
07] Since the claimants have received the amount of
compensation of Rs.90,000/-, as has been directed to be paid to them by
the Tribunal, the said amount will have to be deducted from the
enhanced compensation of Rs.8,11,600/- and the balance amount of
Rs.7,21,600/- would become payable to the claimants along with
interest at the rate of 9% per annum from the date of filing of the
petition till its realization.
7 fa.416.04.jud
08] In the result, the appeal is allowed and the following order
is passed :
I. The claimants are held entitled to enhancement of compensation
to the tune of Rs.8,11,600/-.
II. The claimants have received compensation amount of
Rs.90,000/-. Hence, the balance amount of Rs.7,21,600/- shall be
payable along with interest at the rate of 9% per annum from the
date of filing of the petition till its realization.
III. The owner, driver and insurance company are held jointly and
severally liable to make the payment of compensation.
IV. No costs.
JUDGE
*sdw
