Bombay High Court
Laxmibai @ Punyarath Bandu @ Datta ... vs Nagorao Rangnathrao Wavle And Anr on 15 April, 2016
Bench: P.R. Bora
1 FA 997 OF 2009
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 997 OF 2009
1. Smt Laxmibai @ Punyarath W/o Bandu @ Datta Giri
Age: 28 years, Occu: Household,
R/o. Surpimpri, Parbhani,
Tq. & Dist. Parbhani.
2. Ku. Komal D/ Bandu @ Datta Giri
Age: 9 years, Occu: Nil,
R/o As above.
3. Ku. Kanhopattra D/o Bandu @ Datta Giri,
Aged: 13 years, Occu: Nil,
R/o As above
Both Appellant Nos. 2 & 3 Minor under
guardianship of real Mother
Smt. Laxmibai @ Punyarath Giri,
Age : 28 years, Occu: Household,
R/o As above.
4. Devgir S/o Vithalgir Giri
(Died on 27.3.2008),
Age: 65 years, Occu: Labour,
R/o. As above.
5. Sow Sarjabai W/o Devgir Giri,
Age : 59 years, Occu: Household,
R/o As above. ..APPELLANTS
(Orig. Claimants)
VERSUS
1. Nagorao S/o Rangnathrao Wavle,
Age: 40 years, Occu: Owner & Business
R/o Udegaon, Tq. Aundha,
Dist. Hingoli.
2. The New India Assurance Co,
Through its Branch Manager,
Yashodeep Building, Parbhani,
Tq. & Dist. Parbhani.
...RESPONDENTS
(Orig. Respondent)
...
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2 FA 997 OF 2009
Mr. S.B.Agrawal, Advocate for Appellant;
Mr. M.M. Ambhore, Advocate for Respondent No.2
...
CORAM :P.R.BORA, J.
Dated: April 15, 2016
...
ORAL JUDGMENT:
1. The present appeal is filed by the original claimants
seeking enhancement in the amount of compensation awarded
by the learned Motor Accident Claims Tribunal at Parbhani in
MACP No. 192/2004 decided on 02.04.2007.
2. Learned
ig Counsel appearing for the appellant
submitted that though it was a specific case pleaded by the
claimants that deceased was working as a driver with original
respondent no.4 and was drawing the salary to the tune of
Rs.4,000/- per month, the learned Tribunal has determined the
compensation holding the income of the deceased Bandu @
Datta to the tune of Rs.2,000/- per month. Learned Counsel
submitted that respondent no.4 with whom the deceased was
working as a driver at the relevant time, had in his written
statement admitted that he was paying Rs.4,000/- to the
deceased by way of his monthly salary. In such circumstances,
according to the learned Counsel, the compensation ought to
have been determined holding the income of the deceased to
the tune of Rs.4000/- per month. He, therefore, sought
enhancement in the amount of compensation and modification
in the award to that extent.
3. Shri Ambhore, learned Counsel appearing for the
Insurance Company has supported the impugned judgment and
award. Learned Counsel submitted that the claimants have
3 FA 997 OF 2009
failed in bringing on record any cogent and sufficient evidence
as regards to the income of the deceased. Learned Counsel
further submitted that since the claim petition was filed by the
claimants under the provisions of Section 163A of the Motor
Vehicles Act, in any case, the income of the deceased could not
have been held Rs.4,000/- per month, as contended by the
claimants. Learned Counsel submitted that, had the income
of the deceased be held to the tune of Rs.4,000/- per month, as
contended by the claimants, his annual income would have
been Rs.48,000/- and, as such, the claim petition under Section
163A of the Motor
ig Vehicles Act would not have been
maintainable. Learned Counsel, therefore, prayed for dismissal
of the appeal.
4. 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
evidence on record. From the discussion made by the learned
Tribunal it is difficult to gather as to what was the basis for the
Tribunal to hold the income of the deceased to the tune of
Rs.2,000/- per month. In fact, neither the petitioner nor the
respondents have brought on record any concrete and cogent
evidence as regards to the average income of a driver, the job
which was being performed by the deceased. In the
circumstances, for determining the just and fair compensation
payable to the claimants, the Tribunal ought to have taken into
account the average income being earned by a skilled
workman. There is no dispute that deceased was working as
a Driver. It cannot be further disputed that the driver will fall
into the category of a skilled workman. At the relevant time, it
can reasonably be said that the income of the skilled workman
4 FA 997 OF 2009
was around Rs.100/- per day. Even if it is presumed that a
person may not get work for all 30 days, or on holidays, the
wages of 26 days can be deemed to be the income of a skilled
workman. The income of deceased Bandu thus can be held to
the tune of Rs.2600/- per month and, accordingly, Rs.31,200/-
per annum. Having regard to the number of family members
depending upon the income of the deceased, only one fourth of
his income will be liable to be deducted from his total annual
income. Deducting the same, the balance amount of
Rs.23,400/- ( 31,200 (-) 7800) can be said to be available to
be spent by the deceased for maintaining his family members.
The Deceased, at the time of his death, was aged about 28
years. The appropriate multiplier would be therefore 17. By
applying the said multiplier, amount of dependency
compensation comes to Rs.3,97,800/- (Rs. three lacs, ninety
seven thousand, eight hundred ) ( 23400 x 17 ).
I am further inclined to enhance the amount granted by
the Tribunal towards loss of love and affection from Rs.7500/-
to Rs.25,000/-. The total amount of compensation payable to
the claimants thus comes to Rs.4,22,800/- (Rs. four lacs,
twenty two thousands, eight hundred). According to him, this
will be the just and fair compensation to the claimants,
inclusive of the amount of No Fault Liability compensation.
5. In the result, the following order:
ORDER
1) The appeal is partly allowed with proportionate
costs.
5 FA 997 OF 2009
2) Respondent nos. 1 and 2 shall jointly or severally
pay to the appellants i.e. original claimants the aforesaid
amount of compensation to the tune of Rs.4,22,800/- ,inclusive
of amount of No Fault Liability, together with interest thereon at
the rate of six per cent per annum from the date of filing of the
claim petition till the actual realization of the amount.
3. Out of the aforesaid amount of compensation,,
Rs.1,00,000/- ( Rs. one lac), each be invested in Fixed Deposit
Receipt, in the names of appellant No.2 Ku.Komal and
appellant No.3 Ku.Kanhopattra, in any nationalized Bank till the
appellant nos. 2 and 3 attain the age of majority.
A sum of Rs.1,00,000/- ( Rs. one lac) be paid to appellant
No.5 Smt.Sarjabai widow of Devgir Giri, by account payee
cheque.
The balance amount, along with interest accrued thereon,
be paid to appellant No.1 Smt. Laxmibai by account payee
cheque.
Modified award be prepared accordingly.
(P.R.BORA)
JUDGE
...
AGP/997-09FA
