Bombay High Court
United India Insurance Co.Ltd ... vs Sumitrabai Manikrao Patil And Ors 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. 185 OF 2002
WITH CA/1533/2002 IN FA/185/2002 WITH X-OBJST/8552/2016 IN
FA/185/2002
1. United India Insurance Co Ltd. Chenni
Latur, Branch At and District Latur
Through its Divisional Manager
authorized representative and
signatory
Ahmednagar Division,
Kisan Kranti Building,
Ahmednagar, Dist. Ahmednagar
2. Mohammad Muquemuddin Mohammad
Allemuddin Baig, Age 45 years,
Occ. Business,
R/o. H. No. 11-1-131, Agapur,
Hyderabad ...Appellants
versus
1. Smt. Sumitrabai Manikrao Patil,
Age 42 years, Occ. Household
2. Arvind Manikrao Patil,
Age 23 years, Occ. Education
3. Pradeep Manikrao Patil,
Age 21 years, Occ. Education
All R/o. Peth, Tq. Latur,
District Latur
4. Ashokkumar Nagsheeti Appa
Age 42 years, Occ. Truck Driver
R/o. Malikarjun Street,
Basavkallyan, District Bidar ...Respondents
.....
Advocate for Appellants : Mr. A B Gatne
Advocate for Respondents 1 to 4 : Mr. L.B. Palod
.....
::: Uploaded on - 16/04/2016 ::: Downloaded on - 29/07/2016 22:02:58 :::
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CORAM : V. K. JADHAV, J.
DATED : 12th APRIL, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 10.7.2001
passed by the learned Chairman, M.A.C.T. Ahmednagar in M.A.C.P.
No. 1220 of 1994, the original opponent Nos. 3 and 4 prefer this
appeal.
2.
Brief facts, giving rise to the present appeal, are as under:-
a) On 3.7.1994, at about 3.40 p.m. near village Guha on
Rahuri-Shirdi road, deceased Manikrao alongwith two other
persons were proceeding in a car. On the way, one truck
bearing registration No. ABT 2927 came from opposite
direction in high speed and gave a dash to the car by coming
on wrong side of the road. In consequence of which, all three
including the driver, were seriously injured in the accident.
Deceased Manikrao died on the spot. Legal representatives of
deceased Manikrao filed claim petition bearing M.A.C. No.
1220 of 1994 against respondent Nos. 3 to 5 i.e. owner, driver
and insurer of the truck involved in the accident and in the
alternate also claimed compensation from owner, insurer and
drivers of both the vehicles involved in the accident. Learned
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Chairman, M.A.C.T. Ahmednagar by impugned judgment and
award dated 10.7.2001 allowed the claim petition with costs
and thereby directed respondent Nos. 3 to 5 to pay
compensation of Rs.7,00,000/- including no fault liability to the
claimants with interest @ 9% p.a. from the date of filing of
application till realization of amount.
b. Being aggrieved by the same, the original respondent
Nos.3 and 4 preferred this appeal to the extent of quantum. So
far as the finding recorded by the tribunal, holding truck driver
responsible for the accident alone is concerned, the same is
not challenged by way of this appeal. Thus, the appeal is
preferred against quantum only.
3. Learned counsel for the appellants submits that the Tribunal
has not considered the correct income of deceased Manikrao and
thus committed error in assessing the compensation. The Tribunal
has erroneously considered the income of Rs.2000/- p.m. from
agriculture source. Learned counsel submits that even after
accidental death of deceased Manikrao, the corpus of agriculture
land remained as it is and there cannot be any loss in agriculture
income as such. Learned counsel submits that deceased Manikrao
till his death was cultivating the agriculture land jointly with his three
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brothers and there was no partition as such. In view of this, even the
loss on account of lack of experience or skill in the agriculture income
cannot be considered in the present case. Learned counsel submits
that considering the age of deceased, appropriate multiplier would be
14 instead of 15. The Tribunal has erroneously applied the multiplier
15 instead of 14.
4. Learned counsel for the respondents claimants submits that
though the salary certificate produced before the Tribunal, Exh. 44
and since admitted by the other side, the Tribunal has not considered
the salaried income of deceased Manikrao as stated in the salary
certificate. The Tribunal has rightly considered the loss of agriculture
income and accordingly assessed the compensation. Learned
counsel submits that the Tribunal has not awarded compensation
under the head of non pecuniary loss. Learned counsel submits that
even the respondents claimants have filed civil application for taking
on record the cross objection alongwith the application for
condonation of delay. Learned counsel submits that it is always
open to consider whether the Tribunal has awarded just and
reasonable compensation in accordance with law.
5. It appears that the Tribunal has not considered the salary
certificate Exh.44. Even though the gross salary of Rs.6012/- p.m. is
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mentioned in the said certificate, the Tribunal has considered the
income of deceased Manikrao as per the certificate Exh.43. In fact
the salary certificate Exh.44 is for the month of June, 1994.
Deceased Manikrao met with an accidental death in the month of
July and thus, this certificate shows the last pay drawn by him prior to
his death. Thus, the Tribunal ought to have considered the same.
6. It appears that the Tribunal has considered loss in agriculture
income to the tune of Rs.2000/- p.m. Learned counsel for the
appellant has rightly pointed out that corpus of land remained as it is
and there cannot be any loss in the income as such. On perusal of
the 7x12 extract at Exh. 45 to 49, it appears that deceased Manikrao
was cultivating the land Gat No.54, 103 and 254 alongwith his real 3
brothers and no partition had taken place in respect of agriculture
land amongst brothers. So far as the land Gat No. 254 is concerned,
the claimant Arvind has admitted in his cross examination that said
land was purchased in the name of his deceased father. In view of
this, I do not think that any case is made out to award supervisory
charges so far as agriculture income is concerned. It appears that
the Tribunal has incorrectly applied multiplier 15 instead of 14. The
school leaving certificate of deceased Manikrao is placed on record
and P.W.1 Arvind Patil has also deposed that as per the transfer
certificate, issued by the school, the date of birth of his father is
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7.4.1949. Thus on the date of accident, the age of deceased
Manikrao was 45. Thus, the correct multiplier is 14 instead of 15. So
far as the compensation under the head of non pecuniary loss is
concerned, the Tribunal has not awarded any compensation. Thus
the claimants are entitled for compensation under various heads for
Rs.50,000/-.
7. In view of the above discussion, by deducting the amount of
professional tax and income tax, the loss of salary income comes to
Rs.5742/-. Deceased Manikrao was 45 years of age at the time of
his accidental death. Considering the future prospectus, 30%
amount can be added in his income. In view of the above, on said
30% amount, total loss in the salaried income comes to Rs.7,464/-.
The amount equal to 1/3rd is thus liable to be deducted towards
personal expenses of deceased Manikrao. Thus, loss of
income/dependency comes to Rs.4,976/- p.m. rounded off to
Rs.4,970/-, corresponds to Rs.59,640/- per year. By applying the
multiplier 14, the loss of income/dependency of deceased comes to
Rs.8,34,960/-.
8. In view of this, the break up of compensation, which can be
broadly categorized, is as under:-
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i) Loss of income/dependency Rs. 8,34,960.00
ii) Loss of consortium Rs. 15,000.00
iii) Loss of estate Rs. 10,000.00
iv) Loss of love and affection Rs. 20,000.00
for claimant nos. 2 and 3
(Rs.10,000/- each)
v) Towards funeral expenses Rs. 5,000.00
----------------------
Rs. 8,84,960.00
=============
The claimants are thus entitled for Rs.8,84,960.00 (Rupees
eight lacs eighty four thousand nine hundred sixty only).
9. The Tribunal is duty bound to award the just and reasonable
compensation in accordance with law. In the case in hand, the
Tribunal has considered the loss in agriculture income erroneously
and further committed error in considering the salaried income of
deceased Manikrao as per the salary certificate Exh.44. It is also
matter of record that the Tribunal has committed mistake in applying
the multiplier 15 instead of 14. In view of this, the compensation is
required to be re-calculated. In my considered opinion, for this
purpose, no cross objection is required. Hence, I proceed to pass
the following order:-
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ORDER
I. The judgment and award dated 10.7.2001 passed by the
Chairman, M.A.C.T. Ahmednagar in M.A.C.P. No. 1220 of
1994 is modified in the following manner;-
The opponent Nos. 3 to 5 shall pay compensation of
Rs.8,84,960.00 (Rupees eight lacs eighty four thousand
nine hundred sixty only) inclusive of no fault liability to the
claimants with interest @ 9% p.a. from the date of
application till realization of amount of Rs.7,00,000/- as per
the award prior to the modification and interest @ 9% p.a.
from the date of this order till realization of entire amount on
the compensation as per the modification of award.
II. The respondents-claimants shall deposit the deficit court
fees within a period of six weeks from today.
III. Civil application for condonation of delay caused in filing
cross objection is disposed of. In view of disposal of said
civil application, the respondents-claimants are entitled for
refund of court fees as per Rules, if paid on cross objection.
IV. The statutory amount deposited by the appellants shall be
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transferred to M.A.C.T. Ahmednagar and the same shall be
adjusted as per modification in the award and the claimants
are permitted to withdraw the same.
V. Award be drawn up in tune with the above modification.
VI. Appeal is accordingly disposed of. Civil application No.
1533 of 2002 is also disposed of.
( V. K. JADHAV, J.)
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