United India Insurance Co Ltd vs Shakuntala @ Sakhubai Laxmanrao ...
2016 Latest Caselaw 1525 Bom

                                             1                    FA NO.20 of 2005

                 




                                                                            
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                         BENCH AT AURANGABAD




                                                    
                                   FIRST APPEAL NO.20 OF 2005




                                                   
               United India Insurance Co.Ltd.,
               Through it's Divisional
               Manager and Authorised Representatives
               And Signatory, Jalgaon Divisional




                                           
               Office, Mansing Market, Opp.Atul
               Dairy, Jalgaon.ig      ...APPELLANT
                                 (Original Respondent No.3)
                                       
                            
                    VERSUS

      1.       Smt.Shakuntala alias Sakhubai
               Laxmanrao Shinde, Age 35 years,
      


      2.       Smt.Shantabai Popatrao Shinde,
   



               Age 65 years,

      3.       Mst.Amol Laxmanrao Shinde,
               Age 17 years;





      4.       Miss Vaishali Laxmanrao Shinde,
               Age 16 years,

      5.       Mst.Rahul Laxmanrao Shinde
               Age 14 years;





               All resident of Nampur,
               Tal.Satana, District Nashik.

      6.       Kashinath Laxman Khairnar
               Adult, Truck Driver,
               Resident of Ganeshwadi, Malegaon,
               Dist. Nashik;




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                                                 2                     FA NO.20 of 2005


      7.       Nihal Ahemad Abdul Rashid, Adult Truck




                                                                                
               Owner, 183, Hajihar Kholi Malegaon,
               Dist. Nashik. 




                                                        
                                 ...RESPONDENTS No.1 to 5 
                                  Original Claimants;
                                 Respondents No.6 and 7
                                 Orig.Opponent Nos. 1 & 2.




                                                       
                        ...
      Mr. A.B.Gatne, Advocate for the appellant.
      Mr.D.J.Patil, Adv., h/f Mr. N.B.Suryawanshi, Adv., for
      respondent nos. 1 to 5.




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

DATE : APRIL 15th, 2016

*** ORAL JUDGMENT:

1. The present appeal is filed by the Insurance

Company challenging the judgment and award passed in MACP

No.970/1999 by the Motor Accident Claims Tribunal, Dhule, on

5th of August, 2004. The aforesaid claim petition was filed by

the present respondent nos. 1 to 5 claiming compensation on

account of death of Laxman Popatrao Shinde, who died in a

motor accident happened on 5.10.1999 having involvement of a

Truck bearing registration No.MH-18/D-7536 owned by present

respondent no.7 and insured with the appellant Insurance

Company.

3 FA NO.20 of 2005

2. It was the contention of the original claimants that

deceased Laxman was a tractor mechanic and was running a

garage at village Nampur and was earning around Rs.5,000/-

per month. In order to prove the income of deceased Laxman,

the claimants had placed on record certificate of income issued

by Talathi of village Nampur showing therein that the annual

income of the deceased was around Rs.58,000/-. Relying on

the said certificate, the learned Tribunal held the annual income

of deceased Laxman to the tune of Rs.58,000/- and accordingly

determined the amount of compensation.

3. In the present appeal, the impugned judgment is

challenged only on the point of quantum. More specific

objection raised by the learned Counsel appearing for the

appellant Insurance Company is that, despite there being any

cogent evidence as regards to the income of deceased Laxman,

the Tribunal has erroneously held income of the deceased to

the tune of Rs.58,000/-. Learned Counsel submitted that the

Talathi was having no authority to certify the income of

deceased Laxman. Learned Counsel further submitted that

except the certificate issued by the Talathi, the claimants did

not produce on record any other cogent and sufficient evidence

so as to assess the income of deceased Laxman. Learned

4 FA NO.20 of 2005

Counsel submitted that in absence of any cogent evidence as

regards to the income of the deceased, the Tribunal at the most

could have assessed the income notionally by applying the

criteria as provided under the provisions of Section 163A of the

Motor Vehicles Act by holding the income of deceased Laxman

to the tune of Rs.15,000/- per annum. Learned Counsel

submitted that the Tribunal has awarded unreasonable

compensation by holding the income of the deceased on a

higher side

without there being any evidence therefor.

Learned Counsel, therefore, prayed for determination of the

just amount of compensation and to modify the impugned

award accordingly.

4. Learned Counsel appearing for the original

claimants submitted that the Tribunal has rightly relied upon

the income certificate issued by the Talathi certifying that the

annual income of deceased Laxman was around Rs.58,000/-

per annum. Learned Counsel submitted that even otherwise,

considering the fact that the deceased was working as a tractor

mechanic, the income so held by the Tribunal is not in anyway

unreasonable or on higher side. Learned Counsel submitted

that the amount which has been determined by the Tribunal is

just and reasonable and no interference is required in the

5 FA NO.20 of 2005

impugned judgment and award.

5. After having heard the arguments of the learned

Counsel appearing for the parties and on going through the

impugned judgment and evidence on record, the only point

which arises for my determination is whether the income of the

deceased held by the Tribunal for determination of

compensation can be said to be proved by the claimants and

whether on such basis, the compensation can be determined.

6. On perusal of the impugned judgment, it is revealed

that the Tribunal has blindly relied upon certificate of income

issued by the Talathi, certifying the income of deceased

Laxman. The Tribunal has not at all considered as to whether

Talathi was having any right or authority to certify income of

the deceased or not. No further discussion is made by the

Tribunal as to on what basis it has reached to the conclusion

that the income of the deceased Laxman was to the tune of

Rs.58,000/- per annum. I find substance in the submission

made on behalf of the learned Counsel for the appellant that

the income of the deceased could not have been certified by the

Talathi. Except the aforesaid certificate, the claimants have

not brought on record any other evidence to prove the income

6 FA NO.20 of 2005

of deceased Laxman. The assessment of the income of

deceased Laxman on the basis of certificate issued by the

Talathi, in any case, cannot be sustained.

7. In absence of any evidence brought on record by

the claimants to prove the income of deceased Laxman, the

Tribunal was expected to assess the income of deceased

Laxman notionally on the basis of the work which was being

carried out by the deceased, by applying the criteria as to what

were the minimum wages for the said work in the relevant

period. It is not disputed that the deceased was working as a

tractor mechanic. He was, thus, a skilled workman. In such

circumstances, it appears to me that, the minimum wages

being earned by a skilled workman in the relevant period, can

be appropriate base to determining the income of deceased and

accordingly to determine the amount of compensation in the

present matter. Learned Counsel for the appellant and the

learned Counsel appearing for the original claimants are

ad idem that Rs.3,000/- per month i.e. Rs.36,000/- per annum

be held as income of the deceased. Having regard to the

number of dependents on the income of deceased Laxman, only

one fourth of his income would be liable to be deducted towards

his personal expenses. Deducting the said amount, the

balance amount of Rs.27,000/- can reasonably be held to be

7 FA NO.20 of 2005

available with the deceased to be spent for on the maintenance

and welfare of his dependents. Considering the age of

deceased Laxman, the appropriate multiplier would be of 17.

By applying the said multiplier, the amount of dependency

compensation comes to Rs.4,59,000/- (27,000 x 17). The

Tribunal has awarded Rs.5,000/- towards funeral expenses,

Rs.10,000/- towards loss of love and affection and Rs.5,000/-

towards loss of consortium. I do not see any reason to cause

any interference in the amounts so awarded. The claimants

are thus found entitled to the total compensation of

Rs.4,79,000/-. Save and except modification in the amount of

compensation as aforesaid i.e. to say Rs.4,79,000/- in place of

Rs.6,27,500/-, the other part of the award shall remain as it is.

Modified award be prepared accordingly.

The appeal stands allowed in aforesaid terms.

From the amount deposited, if any, by the appellant

Insurance Company in this Court, or before the Tribunal, the

amount to the extent of Rs.4,79,000/- and the interest payable

thereon shall be paid to the original claimants in terms of the

8 FA NO.20 of 2005

impugned award, if not already paid, and the excess amount, if

any, be refunded to the appellant Insurance Company with the

interest accrued thereon.

Civil Applications, if any, stand disposed of.

(P.R.BORA)

JUDGE ig ...

AGP/20-05fa