Bombay High Court
Vandana Suryakant Solve And ... vs Gundappa Mandolappa Samangave ... on 12 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 896 OF 2002
1. Vandana w/o Suryakant Solav
Age 21 years, Occ. Household,
R/o. Barbadi, Tq. Purna,
District Parbhani
2. Kishan s/o Suryakant Solav
Age 6 months, minor u/g. Of his
natural guardian and
mother claimant No.1
3. Bhimrao Kashiba Solav
Age 50 years, Occ. Agriculture
R/o. Barbadi, Tq. Purna
district Parbhani
4. Shantabai w/o Bhimrao Solav,
Age 40 years, Occ. Household
R/o. Barbadi, Tq. Purna
District Parbhani ...Appellants
versus
1. Gundappa s/o Mandolappa Samangave
Age major, Occ. S.T. Driver
C/o. S.T. Depot, Kinvat
District Nanded
2. Maharashtra State Road Transport
Corporation,
Through the Divisional Controller,
Nanded Division, Nanded
3. The Oriental Insurance Company Ltd.
Branch Office, Daulat Building
Shivaji Chowk, Parbhani ...Respondents
...
Advocate for Appellants : Mr. A.R. Tapse h/f Mr. P.D. Suryawanshi
Advocate for Respondents : Mrs. Ranjana Reddy
Advocate for Respondents : Mr. A.G. Kanade
.....
::: Uploaded on - 15/04/2016 ::: Downloaded on - 29/07/2016 22:02:57 :::
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CORAM : V. K. JADHAV, J.
DATED : 12th APRIL, 2016
ORAL JUDGMENT:-
1. Heard learned counsel for the respective parties.
2. Being aggrieved by the common judgment and award dated
12.1.1998 passed by learned Member, M.A.C.T. Latur in M.A.C.P.
No. 145 of 1994 alongwith M.A.C.P. No. 110 of 1994, the original
claimants in M.A.C.P. No. 145 of 1994, prefer this appeal to the
extent of quantum.
3. Brief facts, giving rise to the present appeal, are as follows:-
a) Deceased Suryakant and deceased Gangadhar were
cousins. Both of them were employed as Gramsevaks in the
office of Panchayat Samiti, Vasmat, District Parbhani. On
12.3.1994, deceased Suryakant was riding his motor cycle
bearing registration No. MH-22-A-5854, on Latur Nanded State
Highway. Deceased Gangadhar was pillion rider. At that time
one S.T. bus of Latur-Kinwat came from opposite direction in
excessive speed and gave a dash to the motor cycle from front
side. In consequence of which, deceased Suryakant died on
the spot whereas deceased Gangadhar sustained injuries and
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succumbed to them after 5/6 hours of the accident.
b. The legal representatives of deceased Suryakant filed
claim petition bearing M.A.C.T. No. 145 of 1994 before
M.A.C.T. Latur for grant of compensation under various heads.
Respondent M.S.R.T.C. had strongly resisted the claim by
filing written statement. The respondent M.S.R.T.C. had
resisted the claim on the ground that the accident had taken
place due to rash and negligent riding of motor cycle by
deceased Suryakant. Furthermore, respondent M.S.R.T.C.
also denied the claim of compensation under various heads.
Learned Member of the Tribunal by its impugned judgment
and award dated 12.1.1998 directed the respondent No.1 and
2 to pay compensation of Rs.1,54,000/- to the claimants
alongwith interest. The appellants-original claimants preferred
this appeal to the extent of quantum.
4. Learned counsel for the appellants submits that the Tribunal
has considered the contents of spot panchnama and held that the
driver of S.T. bus as well rider of motor cycle, both were negligent in
driving their respective vehicles. Learned counsel submits that the
contents of spot panchnama indicates that the driver of S.T. bus
alone was responsible for the accident and deceased Suryakant had
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not contributed negligence in any manner. Learned counsel submits
that deceased Suryakant was serving as Gramsevak and he was
drawing regular salary. Even though salary certificate is produced on
record, the same is not considered by the Tribunal in its proper
perspectives. Learned counsel submits that even Tribunal has not
considered the future prospectus and made addition in the income of
deceased Suryakant. The Tribunal has not considered the income of
deceased Suryakant from agriculture source.
ig Learned counsel
submits that deceased Suryakant was personally cultivating his
agriculture land and 7x12 extract to that effect is produced before the
Tribunal. Learned counsel submits that the Tribunal has not
awarded compensation, under non pecuniary heads, such as loss of
estate, loss of love and affection etc.
5. Learned counsel for the respondent M.S.R.T.C. submits that
the Tribunal has correctly held that the driver of S.T. bus as well as
rider of motor cycle both have contributed the negligence. Learned
counsel submits that the Tribunal has appreciated documentary
evidence in its proper perspectives. The Tribunal has not committed
any error in arriving at the conclusion that the driver of S.T. bus was
responsible to the extent of 70% and the rider of motor cycle has
contributed negligence to the extent of 30%. The Tribunal has
considered the take home salary of deceased Suryakant and also
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considered the admission given by P.W.1 Vandana in her cross
examination. Learned counsel submits that deceased Suryakant
was spending near about Rs.1500/- for the purpose of transportation
etc. and therefore, he used to contribute Rs.1000/- p.m. for house
expenses and maintenance of family members. The Tribunal has
therefore, rightly considered dependency of only Rs.12,000/-. So far
as the income from agricultural source is concerned, even after death
of Suryakant, the corpus of land remained as it is and parents i.e.
claimant Nos. 3 and 4 were cultivating the land and fetching the
income as it was prior to the accidental death of deceased
Suryakant. Learned counsel submits that the Tribunal has correctly
appreciated the evidence and accordingly awarded just and
reasonable compensation. Learned counsel submits that no
interference is required in the appeal and the appeal is liable to be
dismissed.
6. It appears from the evidence that respondent M.S.R.T.C. has
examined driver of S.T. bus involved in the accident. According to the
driver of S.T. bus, he had seen two motor cycles coming from front
side at the time of accident, riding by their respective riders parallel to
each other and they were talking to each other. He has further
deposed that he therefore, lowered down the speed of S.T. Bus and
took the S.T. bus at the extreme left side of road when he noticed
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that motor cycle riders were not attentive. According to him, the
motorcycle drivers parted their ways and one of them gave dash to
the corner of the driver side of his S.T. Bus. However, the contents
of the spot panchanama speaks for itself. The blood stains were
found on the middle portion of road, as observed by the Tribunal. As
per the version of driver, if he took the S.T. bus towards extreme left
side of road, then there is no question of blood stains found on the
middle portion of road. Thus, the only irresistible inference could be
drawn that the accident had taken place in the middle portion of road.
Furthermore, the inference also could be drawn that the motor cycle
was also not on the extreme left side of road. I do not find any fault
in the findings recorded by the Tribunal that the driver of S.T. Bus
was liable to the extent of 70% and rider of the motor cycle
contributed negligence to the extent of 30%.
7. On perusal of salary certificate Exh.42, it appears that
deceased Suryakant was serving as Gramsevak on the
establishment of Panchayat Samiti Vasmat and he was drawing
gross salary of Rs.2741/-. His date of appointment is on the salary
certificate is 6.2.1991. Even professional tax of Rs.40/- is deducted,
then it is clear that deceased Suryakant was getting salary of
Rs.2700/- p.m. The date of birth of deceased Suryakant is
mentioned in the salary certificate and the same is not disputed. His
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date of birth is 22.10.1969. It thus appears that deceased was 26
years of age at the time of his accidental death. In view of this, the
Tribunal should have added 50% of his salaried income towards
future prospectus. Furthermore, 7x12 extract is produced on record,
which shows that deceased Suryakant was owner in possession of
land admeasuring 1 H 80 R and he was personally cultivating the
same. Learned counsel for the respondent M.S.R.T.C. has rightly
pointed out that there is no total loss of agriculture income, as the
corpus of land remained as it is and appellants are competent
enough to cultivate the land and fetch the income even after death of
Suryakant. However, in my opinion, the Tribunal should have
considered the loss on account of lack of supervision by deceased
Suryakant. It would be appropriate to add Rs.500/- p.m. as loss of
income towards supervision charges.
8. In view of the above discussion, the monthly income of
deceased Suryakant thus comes to Rs.4550/- and after deducting his
1/3 personal expenses, the monthly income comes to Rs.3,033/-,
correspondence to Rs.36,396/- per year. Considering the age of
deceased Suryakant, the Tribunal has correctly applied multiplier 17.
The the total income, as worked out above, comes to Rs.6,18,732/-
(Rs.36,396x17= Rs.6,18,732/-. Deceased Suryakant had contributed
negligence to the extent of 30%. Thus, after deducting the
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contribution to the extent of 30% in causing the accident, total loss of
income/dependency comes to Rs.4,33,112/- rounded up to
Rs.4,33,000/-. It also appears that the Tribunal awarded Rs.16,000/-
only as loss of consortium. Under the heads of loss of estate, loss of
shelter and loss of love and affection, the claimants are entitled for
compensation. The claimants are thus entitled for Rs,10,000/- for
loss of love and affection for claimant No.2, Rs.10,000/- for loss of
shelter for claimant Nos. 3 and 4 and for Rs.10,000/- for loss of
estate.
9. Thus, the break up of compensation, which can be broadly
categorized, is as under:-
i) Loss of income/dependency Rs. 4,33,000.00
ii) Loss of consortium Rs. 16,000.00
iii) Loss of love and affection
for claimant No.2 Rs. 10,000.00
iv. Loss of shelter for claimant
Nos. 3 and 4 Rs. 10,000.00
v) Loss of estate Rs. 10,000.00
-----------------------
Rs. 4,79,000.00
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10. Thus the claimants are entitled for total compensation of
Rs.4,79,000.00 (Rupees Four lacs seventy nine thousand only). In
view of the above, I proceed to pass the following order:-
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ORDER
I. The first appeal is partly allowed with proportionate
costs.
II. The judgment and award dated 12.1.1998 passed by the
Member, M.A.C.T. Latur in M.A.C.P. No. 145 of 1994 is
modified in the following manner.
The claimant Vandana Suryakant Solav and others in
M.A.C.P. No. 145 of 1994 do recover Rs.4,79,000/-
(Rupees Four lacs seventy nine thousand only) from
respondent Nos. 1 and 2 jointly and severally alongwith
proportionate costs with interest @ 12% p.a. from the
date of petition till realization of entire amount.
III. Rest of the judgment and award stands confirmed.
IV. Award be drawn up in tune with the modification of
award.
V. Appeal is disposed of accordingly.
( V. K. JADHAV, J.)
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