Bombay High Court
Kantabai Vitthalrao Ogale And Ors vs Shaikh Sattar Dastagirsab And Ors on 15 April, 2016
Bench: P.R. Bora
429-09 FA.doc
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.429 OF 2009
1. Kantabai w/o Vitthalrao Ogale
Age 42 years, Occu. Household.
2. Prashant s/o Vitthalrao Ogale.
Age 21 years, Occu. Education.
3. Anuja d/o Vitthalrao Ogale
Age 20 years, Occu. Household,
4. Indirabai w/o Bhimrao Ogale
Age 55 years, Occu.: Household
All r/o Babhalgaon Police Quarter,
Latur, Tq. & Dist. Latur. .. Appellants
Versus
1. Shaikh Sattar Dastigirsab,
Age Major, Occu. Business,
R/o. Vyankatesh Nagar,
Latur, Tq. & Dist. Latur.
2. Asad Amin Shaikh
Age Major, Occu. Driver,
Tq. & Dist. Latur.
3. United India Insurance Co. Ltd.,
Through its Branch Manager,
Latur, Tq. & Dist. Latur. .. Respondents
...
Mr. T.M.Venjane, Advocate for Appellants;
Mr. R.B.Deshmukh, Advocate for Respondent Nos. 1 and 2;
Mr. A.G.Kanade, Advocate for Respondent No.3.
...
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429-09 FA.doc
2
CORAM: P.R.BORA, J.
Dated : 15th April, 2016.
...
ORAL JUDGMENT :
1) The appellants have filed the present appeal,
taking exception to the judgment and award passed by
Motor Accident Claims Tribunal at Latur on 14.09.2007 in
Motor Accident Claim Petition No.188/2005.
2)
The aforesaid claim petition was filed by the
present appellants claiming compensation of Rs.10,00,000/-
on account of the death of Vitthalrao Bhimrao Ogale, who
died in a motor accident happened on 16.03.2005 having
involvement of tipper truck bearing registration No.
MH-12/QA-9895. Appellant No.1 is the widow of deceased
Vitthalrao, appellant Nos. 2 and 3 are the children, whereas
appellant No.4 is the mother of deceased Vitthalrao.
Appellants had claimed the compensation from the driver,
owner and the insurer of the aforesaid tipper truck, alleging
that, the alleged accident had happened because of the sole
negligence of the driver of the said tipper truck.
3) At the relevant time, deceased Vitthalrao was on
a motorcycle and was dashed by the aforesaid tipper truck.
As stated in the petition, deceased Vitthalrao was aged
about 43 years at the time of his death. Deceased Vitthalrao
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was serving as a Police Head Constable and was earning
around of Rs.10,000/- per month.
4) The claim was resisted by the owner, driver and
the insurer of the tipper truck on several grounds. The
respondents had alleged that, the accident in question had
happened because of the sole negligence of deceased
Vitthalrao, who according to these respondents was rashly
and negligently plying the motorcycle at the relevant time.
5) The appellants in order to prove the contentions
raised in the claim petition, adduced the oral evidence of
appellant No.1 Kantabai, and one Santosh Sudhakar Gole as
an eye witness of the alleged accident. The appellants had
also placed on record the relevant police papers pertaining
to the accident in question as well as the salary certificate of
deceased Vitthalrao. None of the respondents entered into
the witness box, nor any witness was examined by them.
6) The learned Tribunal on its assessment of oral
and documentary evidence brought before it, recorded a
finding that, in occurrence of the alleged accident,
deceased Gulabrao had contributed in equal proportion by
his negligence. Learned Tribunal, thus held the driver of
the tipper truck and deceased Vitthalrao negligent in equal
429-09 FA.doc
proportion for occurrence of the alleged accident. While
determining the amount of compensation payable to the
appellants the Tribunal has held the income of deceased
Vitthalrao to the tune of Rs.5,056/- per month and on the
basis of said monthly income, has assessed the amount of
compensation by deducting 1/3rd of the said amount and
multiplying the same with the multiplier of 17. Learned
Tribunal has determined the total compensation to the tune
of Rs.6,87,480/- and held the appellants entitled to one half
of the said amount i.e. Rs.3,43,740/-. Learned Tribunal has
awarded Rs.10,000/- to the appellants towards loss of love
and affection and Rs.5,000/- towards funeral expenses.
7) Shri T.M.Venjane, the learned Counsel
appearing for the appellants assailed the impugned
judgment and Award mainly on two counts; first that, the
Tribunal has wrongly held deceased Vitthalrao contributed
the occurrence of accident by his negligence, and other
that, while determining the compensation, the amounts
which were not liable to be deducted from the salary
income of deceased have been wrongly deducted.
According to the learned Counsel, from the evidence on
record, no negligence can be attributed on part of the
429-09 FA.doc
deceased in occurrence of the alleged accident. It was
alternatively submitted by the learned Counsel that even if
it is held that, there was some negligence on part of the
deceased, in any case, its proportion cannot be equal with
the negligence on part of the driver of the offending tipper
truck. Tribunal has committed an error in assessing the
amount of compensation on the basis of take home salary
of the deceased.
ig Learned Counsel submitted that, the
deductions shown in the salary certificate of deceased
Vitthalrao were towards provident fund contribution, G.I.S.
Contribution and refund of the advance obtained from the
amount of provident fund. According to the learned
Counsel, while taking into account the income of the
deceased Vitthalrao, the aforesaid amount was not liable to
be deducted and the compensation must have been
computed on the salary of Rs.8,021/- and not on the basis
of take home salary of Rs.5,056/-.
8) Mr. A.G. Kanade, the learned Counsel appearing
for the Insurance Company (Respondent No.3) supported
the impugned judgment and award. Learned Counsel
submitted that, the tribunal has passed a well reasoned
order and requires no interference. Learned Counsel
429-09 FA.doc
submitted that, in fact, the Tribunal has determined the
compensation on higher side by applying multiplier of 17,
whereas the appropriate multiplier which could have been
applied, having regard to the age of deceased, was 14.
Learned Counsel, therefore, prayed for dismissal of the
appeal.
9) 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. Though, it was
sought to be canvassed by the learned Counsel appearing
for the appellants that, in occurrence of the alleged
accident, there was no negligence on the part of deceased
Vitthalrao, on perusal of the oral and documentary
evidence on record, it is difficult to agree with the
submission so made. The alleged accident had admittedly
happened at the center of the road. From the contents of
the spot panchanama, it is quite clear that, it was head on
collusion. The witness examined by the appellants who is
stated to be an eye witness of the alleged accident, had
admitted in his cross-examination that, motorcycle dashed
against the tipper on its cleaner side. The tipper was
429-09 FA.doc
admittedly coming from the opposite direction. The
accident had occurred at the center of the road. Dashing of
the motorcycle by deceased on the cleaner side (left side)
of the tipper is thus sufficient to draw an inference that
deceased motorcyclist went on the wrong side. Though it
was sought to be canvassed by the learned Counsel for the
appellants that, the tipper had entered on the wrong side.
From the situation on the spot as has been described in the
spot panchanama, the contention is liable to be rejected.
From the material on record, it is quite evident that, instead
of plying his motorcycle by remaining at the left side of the
road and keeping adequate margin from the center of the
road, deceased Vitthalrao was plying his motorcycle from
the center of the road and thus contributed the occurrance
of accident because of his own negligence. It does not
appear to me that, the Tribunal has committed any error in
holding deceased Vitthalrao negligent in equal proportion in
occurrence of the alleged accident.
10) Now about the determination of the amount of
compensation. It is not in dispute that, deceased Vitthalrao
was receiving the salary at the rate of Rs.8,021/- per
month. The salary certificate has been duly proved and
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hence has been marked at Exhibit 29. In the salary
certificate, the deductions are shown as follows:
(i) Contribution towards Provident Fund. 1,500/-
(ii) Repayment of the advance taken 1,000/-
from the Provident Fund.
(iii) G.I.S. 60/-
(iv) Other deductions. 80/-
(v) Provident Fund Tax. 175/-
ig Total 2,815/-
The learned Tribunal has deducted the entire said amount
of Rs.2,815/- from the gross salary of Rs.8,021/- and on the
basis of take home salary of Rs.5,056/- has determined the
amount of compensation. The Tribunal has deducted 1/3rd
of the said amount i.e. Rs.1,685/- from the amount of take
home salary towards the personal expenses of deceased
Vitthalrao and has recorded that, after deduction of the
said amount, the balance amount of Rs.3,370/- was only
available for to be spent on the dependents of deceased
Vitthalrao. Accordingly, the Tribunal has assessed the
annual dependency to the tune of Rs.40,440/- (3,370 x 12
= 40,440) and thereafter had multiplied the said amount
with the multiplier of 17.
429-09 FA.doc
11) The manner in which the Tribunal has
determined the amount of compensation, apparently
cannot be sustained. The Tribunal has grossly erred in
deducting the amount of Rs.2,815/- from the gross salary of
deceased Vitthalrao. The amounts which were deducted
towards the Provident Fund contribution and towards
repayment of the advance taken from the Provident Fund
account as well as paid towards G.I.S. contribution could
not have been kept out of consideration while determining
the income of deceased Vitthalrao. The amount of
Profession Tax to the tune of Rs.175/- was only liable to be
deducted from the gross salary amount. Deducting the said
amount, the further computation ought to have been made
by the Tribunal by holding the salary of deceased Vitthalrao
to the tune of Rs.7,846/-, (8,021 - 175 = 7,846), 1/4th of the
said amount i.e. Rs.1961.50 has to be deducted towards
the personal expenses of deceased Vitthalrao. Deducting
the said amount, it ought to have been held that, the
balance amount of Rs.5,884.50 was available to be spent
on the welfare of the dependents of deceased Vitthalrao.
The annual dependency of the appellants on the income of
deceased Vitthalrao thus comes to Rs.70,614/-. The
Tribunal has further erred in applying the multiplier of 17.
429-09 FA.doc
Since the age of deceased Vitthalrao was 43 years at the
time of his death, the appropriate multiplier would be 14.
By applying the said multiplier, the amount of
compensation comes to Rs.9,88,596/-. Deducting 50% of
the same, the appellants were entitled for the
compensation of Rs.4,94,298/-. The amount awarded to
the appellants by the Tribunal towards loss of love and
affection and consortium to the tune of Rs.10,000/- also
appear to be inadequate, I enhance the same to Rs.
25,000/-. I am not inclined to cause any interference in the
amount awarded towards funeral expenses. The appellants
are thus found entitled to the total compensation of Rs.
5,29,298/-. In the result, the following order.
ORDER
a) The appeal is partly allowed.
b) Appellants are entitled for the total compensation of
Rs.5,29,298/- inclusive of the amount of N.F.L
compensation by respondent Nos. 1 to 3 jointly or
severally.
c) Respondent Nos. 1 to 3 shall jointly or severally pay to
the appellants the enhanced amount of compensation
429-09 FA.doc
amounting to Rs.1,70,558/- along with the interest
thereon at the rate of 8% per annum from the date of
filing of the petition till its actual realization of the said
amount with proportionate costs.
c) Modified award be prepared accordingly.
SPR
ig ( P.R.Bora )
Judge
