Smt.Maimunabi Wd/O Shaikh Munir ... vs Laxman Pundlik Takalkar
2016 Latest Caselaw 1539 Bom

    576-J-FA-349-07                                                                       1/6


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                  
                            NAGPUR BENCH, NAGPUR.

                                 FIRST APPEAL NO.349 OF 2007




                                                          
    1.  Maimunabai wd/o Sk. Munir 
         a/a 44 yrs, Occ. Nil. 




                                                         
    2.  Sultanabai d/o Sk. Munir,
         a/a 22 yrs, Occ. Nil 




                                               
    3.  Shaikh Mushraq s/o Shaikh Munir
         a/a 16 yrs, Occ. Student, 

    4.  Rukhsanabai d/o Shaikh Munir,
         a/a 12 yrs, Occ. Student, 
                                      
                                     
         Nos.3 and 4 are minors through 
         mother and natural guardian 
         appellant No.1 Maimunabai 
         w/o Shaikh Munir, 
              


         All r/o Malegaon Bazar, 
           



         Tq. Telhara, Dist. Akola.                             ... Appellants. 

    -vs- 





    1.  Laxman Pundlik Takalkar,
         Adult, Occ. Jeep driver, 
         r/o Jalgaon Jamod, Tq. Jalgaon Jamod, 
         Dist. Buldhana. 





    2.  Bhikarilal Hiralala Agrawal,
         Adult, jeep owner, 
         r/o Chourkhed,  Tq. Jalgaon, Jamod, 
         Dist. Buldhana, 

    3.  United India Insurance Co. Ltd.
          Branch Khamgaon, Tq. Khamgaon, 
          Dist. Buldhana, 
          Thr. Divisional Manager, 
          Old Cotton Market, 
          Rajasthan Bhavan, Alola, 


             ::: Uploaded on - 22/04/2016                 ::: Downloaded on - 29/07/2016 22:25:24 :::
     576-J-FA-349-07                                                                                    2/6


    Tq. & Dist. Akola                                                     ... Respondents. 




                                                                                               
                                                                       
    Shri C. A. Joshi, Advocate for appellants. 
    None for respondent Nos.1 and 2.  
    Shri S. N. Dhanagare, Advocate for respondent No.3. 




                                                                      
                                                  CORAM  : A.S.CHANDURKAR, J. 

DATE : April 15, 2016

Oral Judgment :

The present appeal filed under Section 173 of the Motor Vehicles

Act, 1988 (for short, the said Act) is by the original claimants who seek

enhancement in the amount of compensation.

The husband of appellant No.1 and the father of appellant Nos.2

to 4 Sk. Munir was travelling in a jeep and was proceedings to Telhara. On

22/03/2000 said vehicle in which said Sk. Munir was travelling was dashed

by another vehicle resulting in his death. His legal heirs filed claim petition

for compensation under Section 166 of the said Act. The Claims Tribunal

after considering the evidence on record held that an amount of Rs.79,000/-

was the proper amount of compensation. It however granted an amount of

Rs.39,500/- as compensation on account of composite negligence of the

vehicle in which Sk. Munir was travelling. Being aggrieved, the present

appeal has been filed.

2. Shri C. A. Joshi, the learned counsel for the appellants submitted

576-J-FA-349-07 3/6

that the Claims Tribunal was not justified in granting total compensation of

Rs.79,000/-. According to him, the multiplier applied by the Claims

Tribunal was 12 when in fact multiplier of 14 was required to be applied. He

submitted that the deduction of half the amount made by the Claims

Tribunal on account of composite negligence is not justified especially when

the other tort feasor was not joined as a party. Relying upon judgment of

Honourable Supreme Court in Khenyei v. New India Assurance company

Ltd. and Ors. 2015 SAR (Civil) 841, it was submitted that no deductions

on account of composite negligence could have been made. He then

submitted that the amounts granted for loss of consortium, loss on account of

love and affection, funeral expenses were on lower side. In that regard he

placed reliance on judgments in Neeta w/o Kallappa Kadolkar and ors. v.

Divisional Manager, Maharashtra State Road Transport Corporation,

Kolhapur (2015) 3 Supreme Court Cases 590 and Lasman alias Laxman

Mourya v. Divisional Manager, Oriental Insurance Company Ltd. and

anr. (2011) 10 Supreme Court Cases 756 and Asha Verman & Ors. v.

Maharaj Singh and ors. 2015 ALL SCR 1476. He submitted that though

the claim of the appellants was for an amount of Rs.4,00,000/-, there was

no bar to grant higher compensation in the facts of the case. He therefore

sought enhancement in the amount of compensation and submitted that total

compensation of Rs.8,50,000/- deserves to be granted.

576-J-FA-349-07 4/6

3. Shri S. N. Dhanagare, the learned counsel for the respondent No.3

opposed aforesaid submissions. According to him, the Claims Tribunal

rightly granted compensation of Rs.79,000/- and it was also justified in

reducing the amount of total compensation by 50% on account of composite

negligence. As there was no evidence with regard to income of the deceased,

the notional income was rightly taken. He submitted that the amounts

granted for loss of consortium, loss of love and affection and for funeral

expenses were proper in the facts of the case.

There was no appearance on behalf of respondent Nos.1 and 2

though the appeal was heard on 13/04/2016 and today.

4. With the assistance of the learned counsel for the parties, I have

perused the records of the case and I have gone through the impugned

judgment. The point that arises for consideration is " Whether the appellants

are entitled for enhancement in the amount of compensation ?"

It is the case of the appellants that the deceased was working as a

'broker' and was earning Rs.200/- per day. However, as there was no

evidence in that regard, the Claims Tribunal took into consideration the

notional income of Rs.15,000/- per annum. In this regard it has to be held

that the Claims Tribunal was justified in taking into consideration the

notional income of Rs.15,000/- per annum. However, the Claims Tribunal

ought to have taken into consideration certain amounts towards future

576-J-FA-349-07 5/6

prospects of the deceased. Considering the age of the deceased which was

42 years, an amount of Rs.10,000/- can be taken into consideration towards

future prospects. On that basis, the annual loss of dependency can be

considered to be Rs.25000/-. After deducting 1/4th of the amount towards

personal expenses, the annual loss of dependency would be Rs.18750/-.

5. The Claims Tribunal has applied the multiplier of 12. However,

considering the law as laid down by the Honourable Supreme Court in case

of Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121, the

proper multiplier to be applied would be 14. On that basis, the total loss of

dependency would come to Rs.2,62,500/-.

In Asha Verman (supra) as well as Neeta Kadolkar (supra), the

Honourable Supreme Court has granted the amount of Rs.1,00,000/- each

for children towards love and affection. Similarly, the amount of

Rs.1,00,000/- has been granted for loss of consortium and Rs.1,00,000/-

towards loss of estate. In the present case, as the deceased was survived by

three children, the amount for loss of love and affection will come to

Rs.3,00,000/-. Similarly, an amount of Rs.1,00,000/- each for loss of

consortium and loss of estate would be admissible. In so far as the funeral

expenses are concerned, as the accident occurred on 22/03/2000, an amount

of Rs.10,000/- is found sufficient. The total amount of compensation will

therefore come to Rs.7,72,500/- .

576-J-FA-349-07 6/6

6. In so far as the aspect of composite negligence is concerned, it has

been held in Khenyei (supra) that it would not be legally justifiable to deduct

any amount on account of composite negligence and that it will be open for

the impleaded joint tort feasor to pursue his remedy against the other joint

tort feasors who have not been impleaded. Hence the deductions as made

by the Claims Tribunal will have to be set aside.

7.

In view of aforesaid, the point as framed is answered by holding

that the appellants are entitled for total compensation of Rs.7,72,500/-

including the amount of no fault liability. Accordingly, the following order

is passed :

(a) The judgment dated 14/07/2003 passed by the Motor Accident

Claims Tribunal, Akola in M.A.C.P. No.170 of 2000 is partly modified. It is held that the appellants are entitled for total compensation of Rs.7,72,500/- including the amount of no fault

liability. The same is payable with interest @ 9% per annum from the date of filing the claim petition till realization.

(b) The first appeal is allowed in aforesaid terms. It will be open for

the respondent No.3 to exhaust its remedy against the other tort feasors in accordance with law.

JUDGE

Asmita