Ashamati Prakash Kokate And ... vs Jagdishprasad Kanhaiyalal ...
2016 Latest Caselaw 1431 Bom

                                             1    FIRST APPEAL NO.300 of 2015

                 
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                            
                         BENCH AT AURANGABAD




                                                    
                                   FIRST APPEAL NO.300 OF 2015

      1.       Ashamati w/o Prakash Kokate,
               Age 28 years, Occu: Housewife.




                                                   
      2.       Krushna s/o Prakash Kokate,
               Age 11 years, Occu: Education.

      3.       Rushikesh s/o Prakash Kokate,




                                           
               Age 07 years, Occu. Education.

      4.
                             
               Baynabai w/o Kundlik Kokate,
               Age 60 years, Occu: Housewife.
                            
      5.       Kundlik s/o Bhaguji Kokate,
               Age 65 years, Occu: Nil.

               Appellant No.2 and 3 are minor u/g of mother 
               Appellant No.1.
      


               All r/o Naygaon, Tq. Mantha,
               Dist. Jalna.
   



                                      ...APPELLANT
                                      (Orig.claimants)
                    VERSUS





      1.       Jagdishprasad s/o Kanhaiyalal Sharma,
               Age 50 years, Occ. Owner
               r/o Palasner, Tq. Shirpur Dist.Dhule.

      2.       Surpalsing s/o Mansing Chouhan





               Age Major, Occ. Driver
               R/o. Sadarpur, dist.Dhar M.P. also
               Through Res.No.1.

      3.       New India Assurance Company Ltd.,
               through Branch Manager, Branch office at
               Lakkadkot, Jalna Tq. Dist. Jalna.

                                            ...RESPONDENTS 
                                            (Orig.respondents)




    ::: Uploaded on - 16/04/2016                    ::: Downloaded on - 29/07/2016 22:03:01 :::
                                                2      FIRST APPEAL NO.300 of 2015

      Mr.Girish B.Kulkarni, Advocate for the appellant.
      Respondent   nos.1   &   2   served   through   paper 




                                                                                
      publication.
      Mr.D.P.Deshpande, Advocate for respondent no.3.




                                                        
                              ...
                     CORAM: P.R.BORA, J.

DATE : April 12th, 2016 ***

ORAL JUDGMENT:

1. Heard. Admit. With the consent of learned

Counsel for the parties, Appeal is heard finally.

2. The appellants, who are the original claimants,

have filed the present appeal seeking enhancement in the

amount of compensation awarded by the Motor Accident Claims

Tribunal at Jalna in MACP No.46/2012, decided on 18.11.2013.

3. It is the contention of the appellants that though

the salary income of deceased Prakash Kundlik Kokate was duly

proved by the claimants, the Tribunal, instead of determining

the amount of compensation based on the salary income so

proved, illegally and incorrectly deducted certain amounts from

the said income, and determined the amount of compensation

by applying the relevant multiplier to the said amount.

It is the further contention of the appellants that the

learned Tribunal has completely overlooked the aspect of future

3 FIRST APPEAL NO.300 of 2015

prospects of deceased Prakash while determining the amount of

compensation.

The third ground which has been raised by the appellants

in exception to the impugned award is that while awarding

compensation under other heads, the Tribunal has not followed

the guidelines laid down by the Honourable Apex Court in the

judgment of Rajesh and others Vs. Rajbirsing and others (

2013 (3) T.A.C. 697).

It is the further objection of the appellants that while

deducting the amount towards personal expenses of the

deceased, the Tribunal has wrongly deducted one third of the

income of the deceased Prakash whereas, according to the

number of dependents on the income of the deceased Prakash,

the maximum permissible deduction could have been to the

extent of 20% of the total income.

4. Learned Counsel appearing for the appellants,

therefore, submitted that the amount of compensation needs to

be enhanced and just and adequate compensation needs to be

awarded to the appellants.

5. Learned Counsel appearing for respondent No.3

Insurance Company supported the impugned judgment and

4 FIRST APPEAL NO.300 of 2015

award. Learned Counsel submitted that the learned Tribunal,

on the basis of the evidence brought before it, has correctly

determined the amount of compensation, and no interference

is required in the judgment and award so passed.

6. From the record it appears that the appellants /

claimants have duly proved the income of deceased Prakash.

Deceased Prakash was serving as a Primary Teacher in Zilla

Parishad Primary School at Pungala. He was receiving the

salary to the tune of Rs.21,499/- per month. The claimants

have placed on record his salary certificate at Exh.44 and the

same was duly proved by the claimants by examining the

Headmaster of the School in which deceased Prakash was

serving at the relevant time. From the discussion made by the

learned Tribunal, it reveals that the Tribunal has taken into

consideration the deductions which were being made from the

monthly salary of the deceased. The Tribunal has discussed

that the salary certificate at Exh.44 was revealing that an

amount of Rs.14,385/- used to be deducted from the monthly

salary of deceased Prakash and his take home salary was

shown Rs.7,114/-. The Tribunal in paragraph No.21 of its

judgment has provided the particulars of the said deductions.

Learned Tribunal, referring to the said deductions, has held that

5 FIRST APPEAL NO.300 of 2015

`take home salary' was only liable to be taken into account

while determining the dependency of the claimants on the

income of the deceased Prakash. Further, the Tribunal has

deducted one third of the said amount towards personal

expenses of deceased Prakash and accordingly determined the

amount of dependency compensation.

It appears to me that the Tribunal has grossly erred in

arriving at the conclusion as aforesaid. The deductions which

are taken into account by the Tribunal are towards the

premium of the Life Insurance policy, towards the contribution

of Provident Fund, towards Savings Account in Post Office,

towards installment of the Teachers Pat Pedhi, etc. No doubt,

the deduction is also shown towards Profession Tax. It appears

to me that, except the amount which was being deducted

towards Profession Tax, nothing more was liable to be

deducted. Learned Counsel for the Insurance company has,

however, pointed out that while determining the income of the

deceased for assessing the compensation, it need to be

considered that deceased must be paying Income tax and that

much amount will have to be deducted from his salary income.

However, the Tribunal has certainly erred in deducting the

aforesaid amounts from the total income of the deceased while

assessing the compensation. The mistake so committed by

6 FIRST APPEAL NO.300 of 2015

the Tribunal needs to be corrected.

7. Further, there is substance in the contention raised

on behalf of the appellants that while determining the

compensation, the Tribunal should not have deducted one third

of the said amount towards personal expenses of deceased

Prakash. In view of the law laid down by the Honourable

Apex Court, having regard to the number of dependents on the

income of deceased Prakash, in the instant case, the amount of

20 per cent only could have been deducted by the Tribunal

towards the personal expenses of deceased Prakash.

8. Thus, on both the aforesaid counts, the amount of

compensation needs to be enhanced and the award needs to be

modified to that extent.

9. Though the learned Counsel was persuasive in

submitting that future prospects of deceased are not considered

by the Tribunal while determining the amount of compensation,

in view of the fact that there is no specific evidence as regards

to the future prospects of the deceased, it does not appear to

me that the Tribunal has committed any error in not

considering that aspect. The compensation awarded by the

7 FIRST APPEAL NO.300 of 2015

Tribunal under other heads need no interference.

10. As has been proved by the claimants, deceased

Prakash was drawing monthly salary to the tune of Rs.21,499/-.

Though the correct figures are not available as to how much

amount was liable to be deducted from the said amount

towards Income Tax, it appears to me that towards the Income

Tax and Profession Tax, if the deductions are held to the tune

of Rs.1499/- per month, the net salary of Rs.20,000/- can be

held to be the base for determining the amount of

compensation under the head of dependency. Age of deceased

Prakash at the time of his death was 36 years. The

appropriate multiplier, therefore, would be 16. If income of

the deceased Prakash is held Rs.20,000/- and 20% amount

i.e.Rs.4,000/- is deducted from the said amount and the

balance annual income is multiplied by the multiplier of 16, the

amount of compensation comes to Rs.30,72,000/- (16,000 x 12

= 1,92,000 x 16 = 30,72,000 ). As I stated earlier, I am not

inclined to cause any interference in the amount of

compensation granted by the Tribunal under other heads.

11. The appellants / claimants are thus entitled for the

total compensation of Rs.31,99,000/- (30,72,000 + 1,00,000 +

8 FIRST APPEAL NO.300 of 2015

25,000 + 2,000 = 31,99,000). Respondent nos. 1 to 3 shall

jointly or severally pay the aforesaid amount of compensation

to the petitioners along with the interest thereon at the rate of

7.5% ( as has been awarded by the Tribunal in the impugned

award) from the date of filing of the petition till actual

realization of the amount.

The impugned award stands modified to the aforesaid

extent.

Clause Nos.(3) and (4) of the impugned award shall

remain as it is. Modified award be prepared accordingly.

Deficit Court fee, if any, be recovered from the

appellants / claimants before preparation of the modified

award.

Appeal stands allowed in the aforesaid terms.

(P.R.BORA) JUDGE ...

AGP/300-15fa