Sartajbee Shahjama @ Bhandare ... vs Vasant Balaji Shinde And Others
2016 Latest Caselaw 1268 Bom

                                        1                   FA NO.2012/2015

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                      
                      BENCH AT AURANGABAD

                            FIRST APPEAL NO.2012/2015




                                              
      1)       Sartajbee w/o Shahjama @ Bhandare
               Fakir, Age: 38 yrs. occu. Household;




                                             
      2)       Tabasum d/o Shahjama Fakir,
               Age; 18 Yrs., occu. Education




                                     
      3)
                             
               Chandbee w/o Motisha Fakir,
               Age: 61 Yrs., occu. Household.
                            
               All R/o Maheboobganj peth,
               Nilanga, Tq. Nilanga, 
      


               Dist.Latur.                              = APPELLANTS
   



                       VERSUS





      1)       Vasant s/o Balaji Shinde,
               Age: 38 Yrs., occu. Driver,
               R/o Rathoda, Tq. Nilanga,





               District Latur.


      2)       Netaji s/o Raghunath Jadhav,
               Age: 51 Yrs., occu. Business,
               R/o Rathoda, Tq. Nilanga,
               District Latur.




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                                              2                    FA NO.2012/2015




                                                                            
      3)       The Br. Manager,
               United India Insurance Co.Ltd.




                                                    
               Through its Br.office,
               Opp.Gorakshan, Tilak Nagar,




                                                   
               Main Road, Latur,
               Dist.Latur.                           =         RESPONDENTS 
                                           -----




                                          
      Mr. Santosh B. Gastagar,  Advocate for 
      Appellants;            
      Mr.SB Ghute, Adv. for Resp.Nos.1 & 2;
                            
      Mr.SS Rathi, Adv.for Respondent No. 3.
                                           -----
                                           CORAM :  P.R.BORA, J.

th DATE :

                                                     6     April,2016.
                                                                      
   



                                              
      ORAL JUDGMENT





      1)               Heard.   Admit.   By consent, taken up 

      for final disposal.





      2)               The   present   appeal   is   filed   by   the 

original claimants seeking enhancement of the

amount of compensation awarded by District

Judge-1 and Member, Motor Accident Claims

3 FA NO.2012/2015

Tribunal, Nilanga (for short, the Tribunal) in

MACP No. 06/2012 decided on 28.11.2014 and

consequently modification of the Award to that

extent.

3) It was the contention of the

appellants before the Tribunal that deceased -

Shahjaama Motisha Fakir @ Bhandare was working

with one Ansar Engineering at Hyderabad and

was earning monthly salary to the tune of

Rs.15,000/-. Age of the deceased was stated to

be 40 years. It was the contention of the

appellants that they were depending upon the

income of the deceased. Appellant had

therefore claimed the compensation of

Rs.10,00,000/-, but have restricted the claim

for the purpose of Court fee to Rs. 1,00,000/-

4) The Claim Petition was resisted by

the insurance company before the Tribunal on

4 FA NO.2012/2015

various grounds. One of the defence taken by

the insurance company was that the driver of

the offending jeep was not holding the valid

and effective driving licence. The age and

income of the deceased was also disputed by

the insurance company.

5)

In order to prove the income of the

deceased the appellants have examined the

employer of the deceased. The learned

Tribunal, however, did not find the said

evidence dependable. The learned Tribunal

from the available material on record held the

income of the deceased to the tune of Rs.

5,000/- per month and accordingly assessed the

compensation.

6) Shri Gastgar, the learned counsel

appearing for the appellants/claimants

submitted that for no valid reasons the

learned Tribunal has rejected the evidence

5 FA NO.2012/2015

adduced by the claimants on the point of

income of the deceased. The learned Counsel

submitted that even if the said evidence is

kept out of consideration, the learned

Tribunal ought to have taken into account that

the deceased was residing in the city of

Hyderabad and was maintaining his family and

was a skilled worker and as such, ought to

have adequately held the monthly income of the

deceased and assessed the compensation

accordingly. The learned Counsel further

submitted that even if the Tribunal would have

considered the average income of a skilled

worker at the relevant time, compensation

would have been assessed at much higher side.

He, therefore, prayed for enhancement of the

amount of compensation and to modify the Award

to that extent.

      7)               The   learned   Counsel   appearing   for 





                                        6                  FA NO.2012/2015

Respondent Nos. 1 and 2 has supported the

Award passed by the Tribunal.

8) Shri Rathi, learned Counsel appearing

for Respondent No.3/insurance Company also

supported the Award passed by the Tribunal.

The learned Counsel submitted that in absence

of any cogent and sufficient evidence brought

on record by the appellants, there was no

other option left with the Tribunal to assess

the compensation on the basis of average

income of a workman and accordingly the

Tribunal has rightly assessed the

compensation.

9) Considered the submissions advanced

by the learned Counsel appearing for the

respective parties, the only issue, which

falls for my determination is, - "whether the

compensation awarded by the learned Tribunal

7 FA NO.2012/2015

is just and fair ?."

10) As has come on record, the deceased

was residing at Hyderabad. In the judgment

also it has been noted that the voter list

pertaining to the city of Hyderabad was placed

on record, containing therein the name of the

deceased. In order to prove the income of the

deceased, the claimants have examined the

employer of the deceased. In his evidence,

the said witness has deposed that the deceased

had worked with him for about fifteen years

and lastly he was paid salary at the rate of

Rs.15,000/- per month. The Tribunal has,

however, discarded the said evidence on the

ground that the said witness in his cross-

examination admitted that there was no Shop

Act licence with him; no accounts were

maintained at the shop; no muster roll was

present and salary receipts or salary register

8 FA NO.2012/2015

was also not produced. In such circumstances,

the Tribunal declined to accept the said

evidence and proceeded to assess the

compensation by holding the income of the

deceased to the tune of Rs. 5,000/-. However,

the learned Tribunal has not made any

discussion as to on what basis it held the

income of the deceased as Rs.5,000/- per

month. It appears to me that the Tribunal

must have in such circumstances considered the

minimum income of the skilled worker. The

Tribunals are cast with the duty to see that

just and fair compensation is awarded. Many

times it may happen that the claimants may not

be able to bring on record any concrete

evidence as regards the income of deceased.

In such situation, the Tribunal has to assess

the compensation taking into account the

overall circumstances and considering the

rates of minimum wages prescribed for the

9 FA NO.2012/2015

category of the workers to which the deceased

may be belonging.

11) During the course of the arguments

when a query was put by me to the learned

Counsel appearing for the parties as to what

was the rate of minimum wages for a skilled

worker at the relevant time, the learned

Counsel for the insurance company submitted

that the minimum wages prescribed at the

relevant time for a skilled worker were around

Rs.8,000/- per month. It appears to me that

the compensation must have been assessed on

the basis of minimum wages as such. I am,

therefore, inclined to enhance the

compensation amount by holding the income of

the deceased to the tune of RS.8,000/- per

month, i.e. Rs.96.000/- per annum. Deducting

1/3rd of the said amount towards the personal

expenses of the deceased, it can be assumed

10 FA NO.2012/2015

that the deceased must be spending the

remaining 2/3rd amount, i.e. Rs.64,000/- per

annum for the welfare of his family members.

Considering the age of the deceased, the

appropriate multiplier would be of 15. By

applying the said multiplier, the compensation

amount comes to Rs.9,60,000/- under the dead

of dependency (Rs.64,000 X 15 =

Rs.9,60,000/-). I do not wish to cause any

interference in the amount of compensation

awarded by the Tribunal under the head of

loss of love and affection; hospital expenses

and funeral expenses. Amount of Rs.1,50,000/-

has been awarded by the Tribunal on the

aforesaid counts. Thus, the total

compensation payable to the petitioners comes

to Rs.11,10,000/- (Rs.9,60,000/- +

Rs.1,50,000/-). I, therefore, held Respondent

Nos.1 to 3 jointly and severally liable to pay

the aforesaid amount of compensation to the

11 FA NO.2012/2015

appellants/claimants. It is clarified that

the appellants/claimants are entitled to

receive the interest @ 9% per annum on

enhanced amount of compensation from the date

of filing of the claim petition till its

realization and also to the proportionate

cost. The Award be modified to the aforesaid

extent. Deficit court fee, if any, be

recovered from the appellants/claimants before

preparing the modified Award. The appeal thus

stands allowed in the aforesaid terms.

sd/-

(P.R.BORA) JUDGE

bdv/