Sow [email protected] ... vs S Madhukar Reddy And Anr
2016 Latest Caselaw 1348 Bom

                                                                       2771-13FA.doc
                                                1




                                                                              
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                         BENCH AT AURANGABAD




                                                      
                                   FIRST APPEAL NO.2771 of 2013

              1. Sow. Kaushalyabai @ Rukminlbai




                                                     
                   w/o Baburao Patil,
                   Age 62 Years, Occu. Household,

              2. Baburao s/o Dadaro Patil,




                                           
                   Age 67 Years, Occu: Agriculture,
                   Both R/o Dalimb, Tq. Omerga,
                             
                   Dist. Osmanabad.                               .. Appellants
                                                                 (Orig. Claimants)
                       Versus
                            
              1. Shri S. Madhukar Reddy,
                   Age 47 Yearsm /r/o 10-142,
                   Vijaypuri Colony, R.K.Purama,
      


                   Hyderabad (A.P.),
   



                   at present R/o Flat No.15, Block "B",
                   Abhishek Apartments,
                   Shahu Nagar, Chinchwad, Pune-19.





              2. National Insurance Co.Ltd.,
                   Through its Branch Manager,
                   Branch Office at Osmanabad,





                   Dist. Osmanabad.                            ... Respondents
                                                              (Orig. Respondents)
                                          ...
              Mr. Santosh B. Gatgar, Advocate for Appellants;
              Mr. S.N.Pagare, Advocate for Respondent No.2
                                                ...

                                            CORAM: P.R.BORA, J.

Dated : 07th April, 2016.

2771-13FA.doc

...

ORAL JUDGMENT : ( PER P.R.BORA, J.)

1) The original claimants have filed the present

appeal, seeking enhancement of amount of compensation

awarded in Motor Accident Claim Petition No.17 of 2005

decided by the Motor Accident Claims Tribunal at Omerga,

District Osmanabad on 23.02.2011 and modification in the

award to that extent.

2) The appellants / claimants had filed the

aforesaid claim petition, seeking compensation of Rs.

15,00,000/- on account of the death of their only son viz.

Balaji, who died in a vehicular accident happened on

28.11.2004 having involvement of a Santro Car bearing No.

MH- 09 / AB-896, owned by respondent No.1 and insured

with Respondent No.2. It was the contention of the

claimants before the Tribunal that, the deceased Balaji was

running two electric shops and was earning around of Rs.

1,50,000/- per annum. It was their further contention that,

the deceased Balaji was also cultivating their agriculture

land and was yielding the income to the tune of Rs.

2,00,000/- threfrom. As was stated in the petition, the age

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of deceased Bajaji was 25 years on the date of accident,

and he was a bachelor.

3) The respondent Insurance Company resisted

the claim on several grounds. The liability was also

disputed by the Insurance Company, alleging the breach of

policy condition by the owner of the offending Santro Car.

According to the contentions raised by the Insurance

Company, the driver of the Santro Car was not holding the

valid driving license at the relevant time. The Insurance

Company had also raised the defense of contributory

negligence on the part of deceased Balaji. Quantum was

also disputed. The claimants adduced evidence on the

point of occurrence of accident and for proving the income

of deceased Balaji. None of the respondents adduced any

oral evidence.

4) The learned Tribunal on its assessment of oral

and documentary evidence brought before it, partly allowed

the claim petition. The Tribunal awarded the total

compensation of Rs.4,05,000/- and directed the respondent

Nos. 1 and 2 to jointly and severally pay to the petitioners

the said compensation, along with 9% interest thereon from

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the date of filing of the petition till its realization including

the amount of N.F.L. Being dissatisfied by the award so

passed, the original claimants have preferred this appeal.

5) Shri S.B. Gastgar, the learned Counsel

appearing for the appellants / claimants has assailed the

impugned Award mainly on two counts, first that, the trial

Court has grossly erred in applying the multiplier of 5 while

assessing the dependency compensation, and the other

that, the income of deceased Balaji has not been properly

considered by the learned Tribunal while determining the

amount of compensation. Learned Counsel brought to my

notice that, considering age of the dependents and based

on their age, a multiplier of 5 has been applied by the

Tribunal in assessing the amount of compensation. Learned

Counsel relying upon the judgment of the Hon'ble Supreme

Court in the case of Amrit Bhanu Shali & ors. Vs.

National Insurance Co. Ltd. & Ors. reported in (2012)

11 SCC 738, submitted that, selection of multiplier in a

death case must be on the basis of the age of the deceased

and the age of dependents have no nexus with the

computation of compensation.

2771-13FA.doc

6) In so far as the income of deceased Balaji is

concerned, the learned Counsel taking me through the

evidence on record, submitted that the Tribunal has totally

failed in appreciating the evidence so placed on record by

the claimants and has wrongly held the income of deceased

Balaji to the tune of Rs.10,000/- per month. Learned

Counsel submitted that, the income which was stated by

the claimants to the tune of Rs.1,50,000/- was duly proved

by the claimants and the compensation ought to have been

assessed on the basis of the said proved income. Learned

Counsel submitted that, on aforesaid two counts, the award

passed by the Tribunal needs modification and the amount

of compensation needs to be enhanced accordingly.

7) Shri S.N.Pagare, the learned Counsel appearing

for the Insurance Company has opposed the submissions

advanced by the learned Counsel appearing for the

appellants / claimants. Learned Counsel submitted that,

the Tribunal has rightly assessed the amount of

compensation and no interference is required in the Award

so passed. Learned Counsel when asked to clarify the

stand as above the application of multiplier in view of the

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judgment of the Hon'ble Apex Court in the case of Amrit

Bhanu Shali (cited supra), the learned Counsel fairly

submitted that, the compensation will have to be

determined by applying multiplier as prescribed in the

Judgment of the Hon'ble Apex Court. In so far as the

income is concerned, the learned Counsel submitted that,

the Tribunal has properly considered the entire evidence

and has arrived at right conclusion in holding the income of

deceased Balaji to the tune of Rs.10,000/- per month.

8) I have considered the submissions advanced on

behalf of the learned Counsel appearing for the respective

parties. I have also gone through the impugned Judgment

and Award and the record of the case. In so far as the

objection as regards the multiplier is concerned in view of

the Judgment relied upon by the learned Counsel for the

appellants in the case of Amrit Bhanu Shali (cited supra),

the amount of compensation arrived at by the learned

Tribunal by applying the multiplier of 5 in any case cannot

be sustained. In so far as the income of deceased Balaji is

concerned, after having gone through the evidence on

record, it does not appear to me that, the Tribunal has

committed any error by assessing income of deceased

2771-13FA.doc

Balaji to the tune of Rs.10,000/- . It is thus evident that,

the impugned Award needs correction in so far as

application of the multiplier is concerned.

9) The deceased was admittedly bachelor and as

such, only one half of his income can be said to be available

for his dependents. Income of the deceased is held as Rs.

10,000/- per month. As such, while determining the

dependency compensation, one half of the same i.e. Rs.

5,000/- will have to be multiplied by the appropriate

multiplier. Having regard to the age of the deceased, the

appropriate multiplier in the instant case would be 18. By

applying the said multiplier,the amount of compensation

comes to Rs.10,80,000/- (60,000 x 18 = 10,80,000). I do

not wish to cause interference in the compensation

awarded by the Tribunal under the head of loss of love and

affection and funeral expenses. The Tribunal has awarded

a sum of Rs.1,00,000/- to the claimants towards the loss of

love and affection and Rs.5,000/- towards funeral expenses.

The claimants are thus entitle to receive the total

compensation of Rs. 11,85,000 (10,80,000 + 1,00,000 +

5,000 = 11,85,000). The respondent Nos.1 and 2 are

jointly and severally liable to pay aforesaid amount to the

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claimants. In the result, the following order:

ORDER

a) The appellants / claimants are held entitled to the

total compensation amounting to Rs.11,85,000/-

inclusive of N.F.L compensation jointly and severally

from respondent Nos. 1 and 2 along with the interest

thereon at the rate of 9% per annum from the date of

b)

filing the claim petition till its realization.

Modified award be prepared accordingly.

c) Deficit Court fees, if any, be recovered from the

appellants / claimants before preparation of the

modified award.

d) Appeal stands allowed in the aforesaid terms.

( P.R.Bora ) Judge SPR