Bombay High Court
Nanda Bhausaheb Jadhav & Ors vs Vivek Baburao Nirpharalle & 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. 1885 OF 2010
1. Nanda wd/o Bhausaheb Jadhav
Age 28 years, Occu : Labourer,
R/o. Pal, Taluka Phulambri,
District Aurangabad.
2. Kashinath s/o Tukaram Jadhav,
Age 60 years, Occu : Nil,
R/o. As above.
3.
Narmadabai w/o Kashinath Jadhav,
Age 50 years, Occu : Household,
R/o. As above. ... Appellants
(Orig. Claimants)
Versus
1. Vivek s/o Baburao Nirpharalle,
Age Major, Occu : Business,
R/o. Eshwashyam, Kulgaon,
Badlapur, District Thane.
2. Bhujang s/o Bhanudas Palve,
Age Major, Occu : Driver,
R/o. Kolhar, Taluka Pathardi,
District Ahmednagar.
3. The United Insurance Co. Ltd.,
Through its Divisional Manager,
Divisional Office, Aurangabad. ... Respondents
(Orig. respondents)
.....
Advocate for the appellants : Mr. A. A. Joshi
Advocate for respondent No. 3 : Mr. S. G. Chapalgaonkar
.....
CORAM : V. K. JADHAV, J.
RESERVED FOR JUDGMENT ON: 11th MARCH, 2016
JUDGMENT PRONOUNCED ON: 12th APRIL, 2016
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JUDGMENT :-
1. Being aggrieved by the judgment and award passed by
learned Member, Motor Accident Claims Tribunal, Aurangabad dated
14.07.2003 in MACP No. 568 of 1999, the appellants-original
claimants have preferred this appeal to the extent of quantum of
compensation.
2.
Brief facts giving rise to the present appeal are as follows :
On 22.03.1998 on Aurangabad-Phulambri road near
Phulambri, at about 10:30 p.m., deceased Bhausaheb was
proceeding as pillion rider on M-80 Moped bearing registration No.
MH-20-J-5502 driven by his friend Haribhau. At that time, one goods
truck bearing registration No. MH-05-735 driven by its driver/original
respondent No.2, was kept stationary on road without tail lamp
indicator. Consequently, said Haribhau could not see the stationary
truck while riding his Moped and thus, the Moped dashed against the
back side of said truck. In consequence of which, said Haribhau died
on spot, whereas, deceased Bhausaheb was shifted to hospital
where he succumbed to injuries while under treatment. Said truck is
owned by respondent No.1 and insured with respondent No.3.
Respondent No.2 was the driver of said truck. The appellants-original
claimants, being the legal representatives, preferred claim petition
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bearing MACP No. 568 of 1999 before learned Member, MACT,
Aurangabad for grant of compensation under various heads, inter-
alia contending therein that deceased Bhausaheb was 25 years of
age at the time of his accidental death and he was serving as Sugar
Operator in Devgiri Sahakari Sakhar Karkhana, Sillod on monthly
salary. The appellants-claimants were totally dependent on his
income. They have also claimed compensation under the heads of
non-pecuniary loss. The learned Member of MACT, Aurangabad, by
the impugned judgment and award dated 14.07.2003, partly allowed
the claim petition and thereby directed the respondents jointly and
severally to pay Rs.3 lacs inclusive of "no fault liability" to the
claimants. Being aggrieved to the extent of quantum of
compensation, the appellants-claimants have preferred this appeal.
3. learned counsel for the appellants-claimants submits that
deceased Bhausaheb was permanent employee of the said sugar
factory on monthly salary and the tribunal has not considered the
future prospects. Learned counsel submits that deceased
Bhausaheb was only 25 years of age as per his date of birth
appearing in the SSC certificate and since he was holding permanent
post in the said sugar factory, the tribunal ought to have added 50%
of the salary towards future prospects of income. Learned counsel
submits that even the tribunal has erroneously applied multiplier 17
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instead of 18. Learned counsel submits that even though the tribunal
arrived at the conclusion that the appellants-claimants would be
entitled to total compensation of Rs.4,69,752/-, the tribunal awarded
only Rs.3,00,000/- since the claimants had restricted their claim to
that extent. Learned counsel further submits that the tribunal has not
awarded any compensation under the non-pecuniary heads such as
'loss of consortium', 'loss of love and affection', 'loss of estate' and
'funeral expenses'. Learned counsel submits that after the accident,
deceased Bhausaheb was admitted in hospital and he died while
under treatment. Learned Member of the tribunal has not considered
to award medical expenses and the attendance charges.
4. Learned counsel for the claimants-appellants, in order to
substantiate his submissions, placed reliance on the decision in the
case of Asha Verman and others vs. Maharaj Singh and others,
reported in 2015 (11) SCC 389.
5. Learned counsel for respondent No.3-insurer submits that
deceased Bhausaheb was working as a labourer and witness No.2
Annasaheb, who is examined by the claimants to prove the contents
of the salary certificate, has not deposed before the tribunal about
the future prospects of deceased Bhausaheb. Learned counsel
submits that even considering the contents of the salary certificate, it
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appears that deceased Bhausaheb was drawing a fixed salary
without provision for annual increments. Learned counsel, in order to
substantiate his contentions, placed reliance on the decisions in
following cases:
1. Reshma Kumari & Others vs. Madan Mohan &
Another, reported in 2013 (9) SCC 65,
2. Rajesh and others vs. Rajbir Singh and others,
reported in 2014 (1) Mh.L.J. 79,
3. Santosh Devi vs. National Insurance Company
Ltd. and others, reported in 2012 (6) SCC 421,
4. New India Assurance Co. Ltd. vs. Alpa Rajesh
Shah, reported in 2014 (1) Bom.C.R. 755,
5. Order dated 02.07.2014 passed by the Supreme
Court in Special Leave to Appeal (c) No. 8058/2014,
National Insurance Co. Ltd vs. Pushpa and
others,
6. Shashikala & others vs. Gangalakshmamma &
another, reported in 2015 ACJ 1239,
7. Munna Lal Jain and another vs. Vipin Kumar
Sharma and Others, reported in 2015 AIR SCW
3105 and
8. Sarla Verma (smt.) and others vs. Delhi Transport
Corporation and another, reported in 2009 (6) SCC
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By referring the decisions in above cases, learned counsel for
respondent No.3-insurer submits that post Sarla Varma's case
(supra), in the case of Reshma Kumari (supra), the issue of
standardization of addition to income for future prospects is
considered as helpful in arriving at appropriate compensation and the
same is approved under certain contingencies such as nature of job
whether permanent or temporary, age at the time of death, self
employed income or a fixed salary without any annual increments
etc. Learned counsel submits that in the case of Rajesh and others
(supra), which was decided on 12.04.2013, the case of Reshma
Kumari was not referred. Learned counsel submits that the case of
Santosh Devi (supra) was decided on 23.04.2012. Learned counsel
further submits that considering the divergent views on the point of
future prospects, in the case of National Insurance Company Ltd.
vs. Pushpa and others (supra), the Supreme Court referred the
matter to larger Bench as regards to the manner of addition to
income for future prospects. Learned counsel submits that even in
the case of Shashikala (supra), further reference is made in respect
of the same point for constitution of a larger Bench.
6. Learned counsel further submits that deceased Bhausaheb
was getting a fixed salary without any increments and no such
addition in income can be considered.
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7. It is not disputed that the claimants succeeded in proving that
the driver of the truck involved in the accident was negligent by
keeping the truck stationary on road without any parking signals or
indicators. Thus, the following points arise for my determination and
I have recorded my findings to those points for the reasons given
below :
POINTS FINDINGS
1.
Whether the tribunal has correctly Partly in the
assessed the compensation? negative.
2. Whether the impugned judgment Partly affirmative.
and award calls for an interference?
3. What order ? As per final order.
REASONS
8. Appellants-claimants have examined witness No.2 Annasaheb
Jadhav, who is serving as Labour Officer in Devgiri Sahakari Sugar
Factory. He has deposed that deceased Bhausaheb was working as
labourer in manufacturing department of the said sugar factory. He
has further deposed that at the time of death, deceased Bhausaheb
war drawing gross salary of Rs.3,307/- per month. He has produced
on record the pay certificate of deceased Bhausaheb Jadhav for the
month of February, 1997. The said pay certificate is marked at
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Exh.46. On careful perusal of the same, it appears that deceased
Bhausaheb was drawing salary with fixed allowances, Dearness
Allowance and some other allowances. However, his pay band is not
mentioned in the said certificate, nor it is made clear in the certificate
that he was awarded periodical increments. Salary certificate is
issued on letter pad of the factory. Even the date of appointment of
deceased Bhausaheb is also not mentioned in the said certificate. It
thus appears that, deceased Bhausaheb was drawing a fixed salary
without any yearly increments. Even witness No.2-Annasaheb has
not deposed about the future prospects of deceased Bhausaheb
while working as labourer in the manufacturing department of the
sugar factory.
9. In the case of Reshma Kumari (supra), it is held by the Apex
Court that, in case the deceased was on fixed salary without having
annual increments, the actual income at the time of death without
any addition to income for future prospects would be appropriate. In
the case of New India Assurance Company Ltd. vs. Alpa Rajesh
Shah (supra), relied upon by learned counsel for respondent-insurer,
this Court has expressed a view that only when there is strong and
positive evidence on record to show that there were definite
prospects of increase in the income of deceased in future, such a
case can be treated as an exceptional case in which future prospects
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of increase in the earning can be considered. Furthermore, in the
case of National Insurance Company Ltd. vs. Pushpa (supra), the
Apex Court held it appropriate to refer the matter to a larger Bench
as regards the issue of manner of addition of income for future
prospects. In the case of Shashikala (supra), by referring the above
mentioned case, the request was made for constitution of a suitable
larger Bench to decide the issue as to the addition towards future
prospect, in case of self employed or person with fixed wages, to be
added to the compensation towards dependency.
10. It is true that pendency of such reference does not prevent
courts from adopting such course as held in the case of Manager,
National Insurance Co. Ltd. Vs. Saju P. Paul and Anr., reported in
2013 AIR SCW 609. However, the accident had taken place as back
as in the year 1998. Considering the same and in view of the above
discussion and the facts and circumstances of the present case, it
would be just and appropriate to consider monthly income of
deceased Bhausaheb as Rs.3,307/- for assessing the compensation.
So far as the multiplier applied in the present case is concerned, date
of birth of deceased Bhausaheb is 24.04.1974 as appearing in the
SCC certificate Exh.37. Thus, deceased Bhausaheb was less than
24 years of age when he met with an accidental death. The tribunal
has committed error in applying multiplier 17 instead of 18.
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11. It also appears from the impugned judgment and award that
the tribunal has not awarded compensation under the heads of non-
pecuniary loss. Learned counsel for the appellants-claimants submits
that in view of the compensation worked out in the case of Asha
Verman (Supra), under the heads of non-pecuniary loss, the
claimants herein are also entitled for the same. Perusing the said
decision, it appears that the Apex Court has not laid down any
preposition of law and it is in the facts of the said case before the
Apex Court, such amounts have been granted. In the case in hand, I
am dealing with the case of accident which occurred in the year
1998. In the present case, considering the age of appellant-claimant
No.1, 'loss of consortium' of Rs.50,000/-, 'loss of estate' of
Rs.10,000/-, 'loss of love and affection' for claimant Nos. 2 and 3 of
Rs.10,000/- each (i.e. total Rs.20,000/-) and Rs.25,000/- towards
medical expenses, attendance and funeral expenses would be just
and appropriate.
12. Learned Member of the tribunal, though arrived at a conclusion
that the total loss of dependency would come to Rs.4,49,752/-,
awarded only Rs.3,00,000/- as compensation since the claim is
restricted by the claimants to that extent. I do not find any justification
in awarding compensation to the extent as restricted by the
claimants. In my considered opinion, the claimants are entitled for
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compensation as per the total loss of dependency and under various
admissible heads, and even in case the claimants restrict their claim
due to various reasons, additional amount of compensation can be
considered and awarded by directing the claimants to pay the deficit
court fees.
13. In view of the above discussion, the break up of compensation
which can be broadly categorized as under :
1 Loss of Dependency/Income Rs.4,76,208/-
(3307 X 12 = 39,684 - 13228 towards
1/3rd personal expenses = 26456 X 18 =
4,76,208)
2 Loss of Love and Affection Rs.20,000/-
(10,000/- for claimant Nos. 2 and 3 each)
3 Loss of Consortium Rs.50,000/-
4 Loss of Estate Rs.10,000/-
5 Funeral Expenses Rs.25,000/-
TOTAL Rs. 5,81,208/-
The claimants are thus, entitled for the total amount of
Rs.5,81,208/- along with interest as awarded by the tribunal. I
answer point Nos. 1 and 2 accordingly and proceed to pass the
following order :
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ORDER
I. The First Appeal is hereby partly allowed with proportionate
costs.
II. The judgment and award dated 14.07.2003 passed by
learned Member, MACT, Aurangabad in MACP No.568 of
1999 is hereby modified in the following manner.
i) The claimants shall recover Rs.5,81,208/- (inclusive of
no-fault liability) from respondent Nos. 1 to 3 with
proportionate costs and respondent Nos. 1 to 3 are
jointly and severally liable to pay the same with interest
at the rate of 9% per annum from the date of petition till
the entire amount is realized.
ii) The claimants shall pay the deficit court fees within a
period of one month from today.
III. The rest of the judgment and award passed by the tribunal
stands confirmed.
IV. Award be drawn up in tune with above modification.
V. The First Appeal is accordingly disposed of.
( V. K. JADHAV, J.)
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