Smt Shobhana Prabhakar Bacchav ... vs Sachin Shivaji Marne And Anr
2016 Latest Caselaw 1485 Bom

                                          1                     FA No.426/2015

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                        
                       BENCH AT AURANGABAD

                            FIRST APPEAL NO.426 of 2015




                                                
      1)       Smt. Shobhana w/o Prabhakar 
               Bacchav, Age: 41 Yrs.,
               occu. Household.




                                               
      2)       Mr.Vijay s/o Prabhakar Bacchav,
               Age: 22 Yrs., occu. Education.

      3)       Harish s/o Prabhakar Bacchav,




                                      
               Age: 20 yrs., occu. Education.

               All R/o Juni Shemli,
                             
               Tq. Satana, Dist. Nasik.               =    APPELLANT
                                                 (orig.Applicants)
                            
               VERSUS

      1)       Mr.Sachin s/o Shivaji Marne,
               Age: Major, occu.Business.
               R/o 39/15, Ganeshnagar,
      

               Karve Road, Pune, Tq. Pune,
               District Pune.
   



      2)       The New India Assurance Co.Ltd.
               Divisional Office at Abet Bldg.
               Kings road, Ahmednagar.         = RESPONDENTS
                                            (Orig.Respondents) 





                                   -----
      Mr.CV Bhadane, Advocate for Appellants;
      Respondent No.1 served.
      Mr.MM Ambhore, Advocate for Respondent No.2
                                       -----





                                   CORAM :  P.R.BORA, J.

th DATE :

                                           13     April,2016.
                                                             

                                                         
      ORAL JUDGMENT:

      1)               Heard.  Admit.  By consent, taken up for 







      final disposal.




                                                                        
                                                
      2)               In   the   present   appeal,   the   appellants 

are seeking enhancement in the amount of

compensation awarded to them by Motor Accident

Claims Tribunal, Ahmednagar (for short, the

Tribunal) in MACP No. 382/2005 decided on 26th

August, 2009.

3) Appellant No.1 is widow of deceased

Prabhakar Bacchav; whereas appellant Nos. 2 and 3

are brothers of the deceased, who died in a

vehicular accident happened don 18th February,

2005, having involvement of a Tempo bearing

registration No. MH-12-RA-8130 owned by

Respondent No.1 and insured with Respondent No.2.

At the relevant time, the deceased was proceeding

in a Maruti Esteem Car bearing registration

No.MH-15-F-4427 and it was dashed by the

aforesaid tempo and in the accident so happened,

deceased Prabhakar suffered grave injuries and

ultimately died in the hospital on the same day.

The appellants, therefore, filed the aforesaid

claim petition, claiming compensation of

Rs.25,00,000/- from the owner and insurer of the

offending tempo.

4) The aforesaid claim petition was

resisted by the insurance company on several

grounds. The insurance Company had raised

defence of contributory negligence also. Age and

income of the deceased was also disputed. Before

the Tribunal, appellant No.1 adduced oral

evidence and filed certain documents on record

including the police papers pertaining to the

accident in question. She had also placed on

record the salary certificate of deceased

Prabhakar. The learned Tribunal, on its

assessment of the oral as well as documentary

evidence, brought on record, held the appellants

entitled for the total compensation of

Rs.10,20,760/- inclusive of compensation under no

fault liability jointly and severally from the

owner and insurer of the offending tempo along

with interest thereon @ 6% p.a. from the date of

application till actual realization of the

amount.

5) The learned Counsel appearing for the

appellants submitted that the Tribunal has

grossly erred in determining the amount of

compensation. The learned Counsel submitted that

while determining the dependency compensation,

the Tribunal has applied the multiplier of 9;

whereas as per the age of the deceased,

multiplier of 13 was liable to be applied. The

learned Counsel further submitted that the

Tribunal has totally overlooked the aspect of the

future prospects of deceased Prabhakar and that

has resulted in determining the amount of

compensation on lower side. The learned Counsel

further submitted that the Tribunal has awarded

very meager amounts under the heads of loss of

love and affection; pains and suffering etc. The

learned Counsel further submitted that towards

the loss of consortium, appellant No.1 has not

been granted a single pai. The learned Counsel

further submitted that the rate of interest

awarded by the Tribunal is also inadequate. On

above counts, according to learned Counsel, the

amount of compensation, needs to be

proportionately enhanced.

6) Shri Ambhore, the learned Counsel

appearing for the respondent/insurance company,

resisted the submissions made on behalf of the

appellants. The learned Counsel submitted that

the Tribunal has correctly determined the amount

of compensation considering the evidence, which

was before it and hence, impugned judgment

requires no interference. The learned Counsel

further submitted that the appellants/claimants

did not adduce any evidence as regards the future

prospects of deceased Prabhakar and as such,

there was no reason for the Tribunal to consider

the said aspect while determining the amount of

compensation. The learned Counsel, therefore,

prayed for dismissal of the appeal.

7) I have carefully considered the

submissions advanced by the learned Counsel

appearing for the respective parties. I have

also perused the impugned judgment and the oral

as well as documentary evidence adduced in the

mater. In so far as the first objection raised by

the appellant that the Tribunal has applied a

wrong multiplier is concerned, the same deserves

to be accepted. Age of deceased Prabhakar was

admittedly 47 years at the time of his death. As

such, the appropriate multiplier would have been

of 13 for determining the amount of dependency

compensation. The Tribunal has determined the

said amount by applying the multiplier of 9. It

is thus evident that to that extent the Award

will have to be modified.

8) Though, the learned Counsel appearing

for the appellants was persuasive in his

submission that future prospects of deceased

Prabhakar are not taken into account while

determining the compensation, relying on the

judgment of the Hon'ble Apex Court in the case of

Sarala Verma Vs. Delhi Transport Corporation -

2009 (6) SCC 121; Rajesh and Ors. Vs. Rajbir

Singh and Ors. - 2013 (9) SCC 54 and, the learned

Counsel could not bring to my notice that there

was any evidence adduced by the

appellants/claimants orally or documentary,

showing the future prospects of deceased

Prabhakar. In such circumstances, as has been

held by the Division Bench of this Court in the

case of The New India Assurance Co. Ltd. Vs. Smt.

Alpa Rajesh and Ors. - 2014(4) ALL M R 172, it is

difficult to accept the submission made on behalf

of the appellants that the Tribunal has committed

an error in not considering the future prospects

of deceased Prabhakar while determining the

amount of compensation. The Division Bench in

the aforesaid judgment has categorically held

that the claimants must produce satisfactory

evidence to show that there were genuine

prospects of increase or enhance in the earnings

of the deceased. The learned Division Bench has

further observed that only when there is strong

and positive evidence on record to show that

there were definite prospects of increase in the

income of the deceased in future, such a case can

be treated as an exceptional case in which future

prospects of increase in the earning can be

considered by the Tribunal. In the instant case,

admittedly, no such evidence has been brought on

record by the appellants/claimants. In the

circumstances, it does not appear to me that the

learned Tribunal has committed any error in

determining the amount of compensation.

9) The learned Tribunal has granted a sum

of Rs.20,000/- to the appellants/claimants

towards loss of love and affection. It is true

that the Tribunal has not awarded any amount to

the widow of the deceased, i.e. appellant No.1,

in the present case towards loss of consortium.

The Tribunal must have awarded the compensation

under the aforesaid head separately to appellant

No.1. It appears to me that the appellant No.1

deserves to be awarded a sum of Rs.25,000/-

towards loss of consortium in addition to what

has been earlier granted to all the appellants

towards loss of love and affection. Funeral

expensed are granted @ Rs.5,000/- by the

Tribunal. In so far as interest part is

concerned, it does not appear to me that any

interference is required to be caused in view of

the fact that it is discretion to be exercised by

the Tribunal. Though it has been argued that 9%

interest ought to have been granted by the

Tribunal, there is no such mandate. Thus, as

discussed herein above, the amount of

compensation needs to be enhanced as below.

10) As has come on record, deceased

Prabhakar was receiving monthly salary to the

tune of Rs. 14,728/-. Deducting Rs.900/- towards

statutory deductions, the net salary of the

deceased is held to the tune of Rs.13,829/-. In

fact, there was no reason for the Tribunal to

take into account the amount of Rs.700/-, which

was being deducted towards the PF contribution.

The only amount which was liable to be deducted

was towards the Profession tax. However, there

is further no discussion as about the deductions

towards the income tax. In the circumstance, I

do not wish to go into the said details.

11) As stated above, the net monthly salary

of deceased Prabhakar was Rs.13,829/- per month.

1/3rd of it will have to be deducted towards the

personal expenses of the deceased. Deducting the

same, the balance comes to Rs.9,220/-. There is

a reason to believe that deceased Prabhakar may

be spending the aforesaid amount for the welfare

of his family members, i.e. present claimants.

The claimants thus can be held to be dependent on

the income of deceased Prabhakar to the aforesaid

extent. The annual dependency of the claimants

on the income of deceased Prabhakar thus can be

assessed to the tune of Rs.1,10,640/- (i.e.

Rs.9,220 x 12).

12) As mentioned herein above, having regard

to the age of deceased Prabhakar, the appropriate

multiplier would be 13. By applying the said

multiplier to the aforesaid amount, the amount of

dependency compensation comes to Rs.14,38,320/-.

I have awarded Rs. 25,000/- to appellant No.1

towards loss of consortium. In the impugned

Award, the Tribunal has already awarded a sum of

Rs.20,000/- to the appellant towards the loss of

love and affection and Rs.5,000/- towards the

funeral expenses. Thus, the appellants are held

entitled for the total compensation of

Rs.14,88,320/-. The impugned Award needs to be

modified to the aforesaid extent. Save and

except, the total amount of compensation to the

tune of Rs.14,88,320/- in place of Rs.10,20,760/-

granted in the impugned Award, the other part of

the Award shall remain unchanged. Modified Award

be prepared accordingly. Deficit Court fees, if

any, be recovered from the appellant before

preparing the modified Award.

13) The appeal is allowed in the aforesaid

terms. Pending Civil Application, if any, stands

disposed of.

sd/-

(P.R.BORA) JUDGE

bdv/