Asmakhatun Shaukat Ansari And ... vs Trigun Dhanji Pawar And Another
2016 Latest Caselaw 1505 Bom

                                           1                    FA No. 824/2015

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                         
                       BENCH AT AURANGABAD

                               FIRST APPEAL NO.824/2015




                                                
      1)       Asmakhatun w/o Shaukat Ansari
               Age: 35 Yrs., occu. Household.




                                               
      2)       Sabiha d/o Shaukat Ansari
               Age: 4 yrs., occu. Education

      3)       Sabina d/o Shaukat Ansari,
               Age: 6 Yrs., occu. Education




                                        
      4)       Jarina d/o Shaukat Ansari,


      5)
                             
               Age: 8 Yrs., occu. Educlation

               Nasim s/o Shaukat Ansari
               Age: 10 Yrs., occu. Education
                            
      6)       Jalimun d/o Shaukat Ansari,
               Age: 15 Yrs., occu. Educlation

               Appellant Nos. 2 and 6 minor
      


               under Guardian ship of mother
               Appellant No.1.
   



      7)       Kitaban Noormohammad Ansari
               Age: 65 Yrs., occu. Nil
               All R/o Sonpa, Tq.Chausa





               District Baxer Bihar,
               At present MIDC, Nagapur,
               Ahmednagar                         =    APPELLANTS
                                                  (Orig. claimants)

               VERSUS





      1)       Trigun Dhanji Pawar 
               Age: 40 Yrs., occu. Business
               R/o 833, Kasba Peth,
               Ta.Mada, Dist.Solapur.       (Orig.Opponent No.1
                                             owner of vehicle)

      2)       The Manager,
               The United India Insurance Co.
               Ltd. Tilak road, Main Road,




    ::: Uploaded on - 04/05/2016                 ::: Downloaded on - 29/07/2016 22:11:46 :::
                                           2                     FA No. 824/2015

               Latur - 413531                     =        RESPONDENTS 
                                       -----




                                                                         
                                                 
      Mr.VR Autade, Advocate for Appellants;
      Respondent No.1 served;
      Mr.Sudhir V.Kulkarni,Adv. for Respondent No.2.
                                       -----




                                                
                                   CORAM :  P.R.BORA, J.
                                              th
                                   DATE  :   
                                           13     April,2016.
                                                             




                                      
                                                         
      JUDGMENT:

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

final disposal.

2) The present appeal is filed by the

original claimants in MACP No.512/2008. The

aforesaid claim petition has been decided by the

Motor Accident Claims Tribunal, at Ahmedngar (for

short, the Tribunal) on 13th September, 2012. The

Tribunal has awarded the compensation amounting

to Rs.4,55,000/- inclusive of the no fault

liability jointly and severally from the

respondent Nos. 1 and 2. The Tribunal has also

awarded interest on the aforesaid amount @ 6% per

annum from the date of filing of the claim

petition till the actual realization of the

amount. The present appeal is filed for

enhancement of the amount of compensation and for

modification of the impugned award to that

extent.

3) The learned Counsel appearing for the

appellants submitted that the learned Tribunal

has determined the compensation holding the

income of deceased - Shaukat notionally to the

tune of Rs.2,500/- per month. The learned Counsel

submitted that the appellants have specifically

pleaded in their petition that the deceased was

earning Rs.4,500/- per month from his employment

with Ramdas Ispat, situated at MIDC, Ahmednagar.

The learned Counsel submitted that the evidence

on the point of income has remained

uncontroverted since the insurance company did

not raise any objection in that regard. As such,

according to the learned Counsel, the

compensation ought to have been determined

holding the income of deceased Shaukat to the

tune of Rs.4,500/- per month.

4) Shri Kulkarni, the learned Counsel

appearing for the insurance company, has resisted

the submissions so made on behalf of the

appellants. The learned Counsel brought to my

notice that the income as pleaded of the deceased

was denied by the insurance company. The learned

Counsel further pointed out that the counsel, who

was appearing for the appellant, i.e. original

claimants before the Tribunal, himself had

submitted before the Tribunal that the

compensation may be determined by holding the

income of deceased Shaukat notionally to the tune

of Rs.3,000/- per month. The learned Counsel

further submitted that accordingly, the Tribunal

has considered the submissions and has determined

just and appropriate compensation.

5) I have gone through the discussion made

by the learned Tribunal in para 8 and 9 of the

impugned judgment. From the discussion made by

the learned Tribunal and from the record of the

case, it appears to me that though it was the

case of the appellants/claimants that deceased

Shaukat was employed with Ramdas Ispat, MIDC,

Ahmednagar and was drawing wages to the tune of

Rs.4,500/- per month, the employer or his

representative has not examined by the

appellants/claimants in order to prove the income

so pleaded by them in the claim petition. That

was the reason the Tribunal was constrained to

assess the income of deceased Shaukat on notional

basis.

6) Further, the submission was made on

behalf of the original claimants themselves

through their counsel before the Tribunal that

the income of deceased Shaukat shall be

notionally held to the tune of Rs.3,000/- per

month and accordingly, the compensation be

determined. Appellants, now, therefore, cannot

say that the income of deceased be held to the

tune of Rs.4,500/- per month and the compensation

be awarded accordingly.

7) From the further discussion made in the

impugned judgment, it appears that the Tribunal

has notionally held the income of deceased

Shaukat to the tune of Rs.2,500/-. There is no

discussion made by the Tribunal as to on what

basis the income of deceased Shaukat was

notionally held by it to the tune of Rs.2,500/-.

It appears to me that there was a very just and

reasonable suggestion from the side of the

claimants that the compensation may be determined

by notionally holding the income of deceased

Shaukat to the tune of Rs.3,000/- In such

circumstances, it appears to me that the learned

Tribunal ought to have assessed the compensation

by holding the income of deceased Shaukat

notionally to the tune of Rs.3,000/- It was a

very reasonable proposal and it ought to have

been accepted by the the Tribunal. To that

extent, it appears to me that the compensation

amount needs to be enhanced and the Award needs

to be modified to that extent.

8) The learned Counsel appearing for the

insurance company submitted that no mistake has

been committed by the Tribunal in determining the

amount of compensation, holding the income of

deceased Shaukat notionally to the tune of Rs.

2,500/-, It is difficult to agree with the

submission so advanced. In the year 2012, income

of a person notionally to the tune of Rs.3,000/-

cannot be in any way said to be unreasonable or

excessive. If the income of deceased Shaukat is

held to the tune of Rs.3,000/- per month and 30%

amount is added in the said amount towards the

future prospects of deceased Shaukat, monthly

income of deceased Shaukat has to be held

Rs.3,900/-. Having regard to the number of

dependents on the income of deceased Shaukat,

only 1/5th of his income was liable to be

deducted towards his personal expenses. That

amount comes to Rs.780/-. If that amount is

deducted from the monthly income of Rs.3,900/-,

the balance amount of Rs.3,120/- can be said to

be available to be spent by deceased Shaukat on

the welfare of his family members. Multiplied by

12, it comes to Rs.37,440/- and that is to be

held to be annual dependency of the

petitioners/claimants on the income of deceased

Shaukat. Having regard to the age of deceased,

the Tribunal has correctly applied the multiplier

of 14. By applying the said multiplier to the

amount of Rs.37,440/-, the compensation amount

comes to Rs.5,24,160/-. It further appears to me

that the Tribunal has awarded a very meager sum

of Rs.5,000/- to the claimants towards the loss

of love and affection. I enhance it to

Rs.25,000/-. I am also inclined to enhance the

amount of compensation granted towards the

funeral expenses from Rs.3,000/- to Rs.10,000/-.

The appellants/claimants are thus entitled to

receive the total compensation of Rs.5,59,160/-

(i.e. Rs.5,24,160/- + Rs.25,000/- + Rs.10,000/- =

Rs.5,59,160/-) inclusive of NFL compensation. The

amount of Award thus needs to be modified to the

aforesaid extent. Save and except, the amount of

compensation enhanced as above, the other part of

the impugned Judgment and Award shall remain

unchanged. Modified Award be prepared

accordingly. Deficit court fees, if any, be

recovered from the appellants/claimants before

preparation of the modified award.

9) The appeal stands allowed in the

aforesaid terms.

Sd/-

(P.R.BORA) JUDGE

bdv/