Bombay High Court
Suresh Dattatraya Patil And Ors vs Sudhakar Baburao Pawar And Anr on 11 April, 2016
Bench: V.K. Jadhav
1 FA 2908.2008.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2908 OF 2008
...
1. Suresh s/o Dattatraya Patil,
age 46 years, Occ. Agril.
2. Godawari w/o Suresh Patil,
age 42 years, Occ. Household
3. Madhukar s/o Dattatraya Patil,
age 20 years, Occ. Agri.
All R/o Sonkhed, Tq. Nilanga,
District Latur. ..Appellants..
[orig claimants]
VERSUS
1. Sudhakar s/o Baburao Pawar,
age major, occ. Driver,
R/o Jamga, Tq. Nilanga,
Dist. Latur.
2. National Insurance Co. Ltd.,
Through its Branch Manager,
Latur, Hanuman Chowk, Latur. Respondents
Orig respondents
...
Advocate for Appellants : Mr N P Patil
Advocate for Respondent 2 : Mr S V Kulkarni
Respondent no.1 served.
...
CORAM : V.K. JADHAV, J.
Dated: April 11, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and Award
2 FA 2908.2008.odt
passed by the Member, Motor Accident Claims Tribunal,
Nilanga in MACP No.26 of 2006, the original claimants
preferred this appeal to the extent of quantum.
2. Brief facts, giving rise to the present appeal, are as
follows :-
a] On 5.9.2004 deceased Sudhakar was proceeding
in a mini door tempo bearing registration No.MH-24/F-
5594 alongwith his goods. On way, respondent no.1,
who was the driver cum owner of the said mini door
tempo lost his control over the vehicle and accordingly
said vehicle turned turtled. In consequence of which
deceased Sudhakar sustained severe injuries and died
on the spot. The legal representatives of deceased
Sudhakar filed claim petition for grant of compensation
under the various heads before the Motor accident
Claims Tribunal, Nilanga.
B] Respondent No.1 owner cum driver though duly
served, remained absent and, therefore, claim petition
ordered to proceed ex-parte against him.
3 FA 2908.2008.odt
3. Respondent No.2 Insurer has strongly resisted the
claim petition by filing written statement. It is
specifically denied that, deceased Sudhakar was
travelling in the said vehicle alongwith his goods.
Respondent No.2-Insurer has raised defence that,
deceased Sudhakar was travelling in a goods vehicle as
a passenger and therefore, there has been breach of
conditions of the policy. The learned Member of the
Tribunal has partly allowed the claim petition and
thereby directed the respondents to pay compensation of
Rs.1,64,200/- alongwith interest and further directed
that respondent no.2 insurer shall pay the entire
amount under Award and recover the same from the
respondent no.1 owner. The appellant/original claimant
has preferred this appeal to the extent of quantum.
4. Learned counsel for the appellant submits that,
the Tribunal has not considered the income of the
deceased Sudhakar. Deceased Sudhakar was earning
Rs.5,000/- p.m. by driving an auto rickshaw. Learned
counsel submits that, even though the claimants have
produced on record driving licnece of the deceased
4 FA 2908.2008.odt
Sudhakar and the same is marked as Exh.24, the
Tribunal has considered the income of deceased
Sudhakar at Rs.90/- per day. Learned counsel further
submits that, the Tribunal has erroneously applied the
multiplier '7' by considering the age of the parents.
Learned counsel submits that by considering the age of
deceased Sudhakar, the Tribunal ought to have applied
the multiplier '17' instead of '7'.
5. Learned counsel for respondent no.2 insurer
submits that, deceased Sudhakar was driving auto
rickshaw on hire basis. There is no direct income proof,
however, considering the driving licence possessed by
deceased Sudhakar the Tribunal has considered his
income from the said business @ Rs.90/- per day.
Learned counsel submits that, Tribunal has erroneously
deducted 1/3rd of amount towards his personal
expenses instead of ½ of the amount. Learned counsel
submits that, it is well settled that in case of unmarried
son ½ of the amount is required to be deducted towards
personal expenses. Learned counsel submits that,
considering the income and parents age, the Tribunal
5 FA 2908.2008.odt
has awarded just and reasonable compensation in the
matter. Learned counsel submits that, no interference
is required and the appeal is thus liable to be dismissed.
6. It is not disputed that the accident had taken
place on account of the rash and negligent driving of
respondent no.1 owner and deceased Sudhakar
sustained injuries in the said accident and died on the
spot. Further, it is also accepted that the Tribunal has
rightly directed respondent no.2 insurer to pay the
compensation amount first and then recover the same
from the respondent no.1 owner.
7. So far as quantum is concerned, it appears that
the Tribunal has committed mistake while considering
the income of deceased Sudhakar. Usually, if the
claimants fail to prove income of the deceased person
who met with an accidental death, notional income is
considered as Rs.3,000/- as income of the labour. In
the case in hand, deceased Sudhakar was driving auto
rickshaw on hire basis. He was having valid and
effective driving licence to drive the rickshaw and his
6 FA 2908.2008.odt
driving licence is produced on record and the same is
marked as Exh.24. In view of this, the Tribunal ought
to have considered his income at Rs.4,000/- p.m.
8. The learned Member of the Tribunal has also
committed mistake while applying the multiplier by
applying multiplier '7'. It appears that the Tribunal has
considered the age of the claimants while applying the
said multiplier. In a case of Sarla Verma (Smt) and
others Vs. Delhi Transport Corporation and another
reported in (2009) 6 Supreme Court Cases 121, it is
held that age of the deceased person at the time of his
accidental death is required to be considered for
applying multiplier. It is well settled that, for a person
within the age group of 26 to 30 relevant multiplier is
'17'. So far as deductions on the count of personal
expenses is concerned, learned counsel for the
respondent-insurer has rightly pointed out that the
Tribunal has deducted 1/3rd of amount towards
personal expenses instead of deducting ½ of the
amount. Admittedly, deceased Sudhakar was unmarried
at the time of his death and after his accidental death,
7 FA 2908.2008.odt
claim has been preferred by his parents.
9. In view of the above discussion, monthly income of
deceased Sudhakar is considered as Rs.4,000/- (Rs.
Four thousand). After deducting ½ of the amount
towards his personal expenses, loss of
dependency/income comes to Rs.2,000/- corresponds
to (Rs.2,000 x 12 ) = Rs.24,000/- per year. Said amount
of Rs.24,000/- multiplied by '17' = Rs.24,000 x 17 = Rs.
4,08,000/- would be the proper compensation. The
Tribunal has correctly awarded the compensation under
the heads of non pecuniary and no interference is
required.
10. In view of the aforesaid modifications, the
compensation is required to be recalculated. Thus,
break up of compensation, which can be broadly
categorized as under :-
1. Loss of dependency/income Rs.4,08,000/-
2. Loss of love and affection Rs. 20,000/-
3. Funeral Charges Rs. 03,000/-
============
Rs.4,31,000/-
============
8 FA 2908.2008.odt
11. Thus, the claimants are entitled for the same. In
view of the above discussion, following order is passed.
O R D E R
I. Appeal is hereby partly allowed with
proportionate costs.
II. Judgment and Award passed by the Member,
Motor Accident Claims Tribunal, Nilanga,
dated 14.2.2007 in MACP No.26/2006 is
modified to the following effect :-
"Respondent No.1 is liable to pay the
compensation of Rs.4,31,000/- (Rs.
Four Lacs thirty one thousand only)
with interest @ 9% p.a. from the date of
application till the realization of the
entire amount to the
appellants/claimants and respondent
No.2 shall first pay the compensation
amount to the appellants-claimants
and then recover the same from
respondent No.1-owner and for that
purpose the respondent No.2 Insurer is
not required to initiate any independent
proceeding.
III. Rest of the Judgment and Award passed by
the Tribunal stands confirmed.
9 FA 2908.2008.odt
IV. Award be drawn up accordingly.
V. First appeal stands disposed of.
sd/-
( V.K. JADHAV, J. )
...
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