Bombay High Court
Pandit Hiraji Vairal vs Motiram Saudagar Warpe on 20 April, 2016
Bench: V.K. Jadhav
1 FA 838.2004.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 838 OF 2004
...
1. Pandit S/o Hiraji Vairal,
age 40 yrs, Occ. Labour,
R/o Poul Pimpri, Tq. Parli Vaijnath,
Dist. Beed.
2. Asnabai w/o Pandit Vairal,
age 35 years, Occ. Household,
R/o as above.
ig ..Appellants...
(orig. claimants)
VERSUS
1. Motiram S/o Saudagar Warpe,
age major, Occ. Editor, Dainik
Zunjarneta, R/o Shaniwar Peth,
Tq. Beed, Dist. Beed.
2. Sitaram s/o Laxman Kshirsagar,
age 27 years, Occ. Driver,
R/o Udanwadgaon, Tq. & Dist. Beed.
3. The National Insurance Company,
Rajendra Prasad Road,
Opp. Syndicate bank,
Tq. & Dist. Jalna. ...Respondents...
[ori respondents]
...
Advocate for Appellants : Mr Mohit Deshmukh h/f Mr. S
G Chapalgaonkar
Advocate for Respondent 3 : Mr P P Bafna
...
CORAM : V.K. JADHAV, J.
Dated: April 20, 2016
...
2 FA 838.2004.odt
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and Award dated
1.8.2003 passed by the Member, Motor Accident Claims
Tribunal, Ambajogai in MACP No.7/2001, the original
claimants have preferred this appeal to the extent of
quantum.
2. Brief facts, giving rise to the present appeal are as
under :-
a] On 21.4.2000 at about 3.30 p.m. deceased Sudam
7 years old boy was proceedings to brick-kiln from the
road Beed to Parli, where the claimants were working.
At that time, one Fiat Car bearing registration No.MH-
23-E-7000 came from Beed side and gave dash to the
deceased. In consequence of which, deceased Sudam
fell down on the road and sustained injuries. He died
on the spot. The claimants being the legal
representatives preferred Claim Petition before the Motor
Accident Claims Tribunal, Ambajogai, for grant of
compensation under various heads. The learned
Member, Motor Accident Claims Tribunal, Ambajogai, by
its impugned Judgment and award dated 1.8.2003
3 FA 838.2004.odt
partly allowed the claim petition and held that the
claimants are entitled for the compensation amount to
the extent of Rs.60,000/- from the respondents, who are
jointly and severally liable to pay the same. Being
aggrieved to the extent of quantum, the original
claimants preferred this appeal.
3. Learned counsel for the appellant submits that,
the Tribunal has not applied the Second Schedule and
multiplier specified therein to grant compensation. The
learned counsel submits that, by applying II schedule
and relevant multiplier, the claimants are entitled for
the compensation of Rs.1,50,000/-.
4. Learned counsel for the appellant in order to
substantiate his submissions place his reliance on the
case of R.K.Malik and another Vs.Kiran Pal and others
reported in AIR 2009 SC 2506.
5. Learned counsel for the Respondent No.3 -Insurer
submits that, in cases of death of young children of
tender age, in view of uncertainties abound, the
4 FA 838.2004.odt
financial loss suffered by the parents is incapable of
mathematical calculation. Learned counsel submits
that, by considering the same, the Tribunal has rightly
awarded the compensation.
6. In order to substantiate his submissions, learned
counsel has placed his reliance on following case :-
1.Oriental Insurance Co. Ltd., Vs. Syed Ibrahim and
others reported in AIR 2008 Supreme Court 103 (1).
7. The learned counsel submits that, the Supreme
Court by considering the view expressed in Lata
Wadhwa's case awarded reasonable compensation by
considering death of a child and second schedule and
multiplier mentioned therein are not taken into
consideration. Learned counsel for the Respondent-
insurer submits that, if this Court comes to the
conclusion to award enhanced compensation of
Rs.1,50,000/-, interest on the same may be awarded
from the date of this order.
8. In the case in hand, the accident had taken place
on 21.4.2000. In R.K.Malik's case (supra) relied upon by
5 FA 838.2004.odt
the learned counsel for the appellant, the date of
accident is 18.11.1997. Considering the date of accident
of the present case, the notional income mentioned in
Second Schedule and multiplier method can form basis
for the pecuniary compensation. The Hon'ble Apex
Court in the aforesaid R.K.Malik's case in paragraph
No.17 and 18 of the Judgment made following
observations:-
"17. Reverting back to the factual position of the present
case, the date of accident is 18.11.1997. Prior to this,
the Second Schedule of the Act was already introduced
w. e. f. 14.11.1994. Thus, the notional income
mentioned in the Second Schedule and the multiplier
specified therein can form the basis for the pecuniary
compensation for the loss of dependency in the
present cases. No fact and reason was highlighted
during the arguments why the Second Schedule should
not apply in the present cases. The Second Schedule
also provides for deduction of 1/3rd consideration
towards expenses; which the victim would have
incurred on himself if he had lived. As compensation
for loss of dependency is to be calculated on the basis
of notional income because the deceased was a child.
It by necessary implication takes into account future
prospects, inflation, price rise etc.
18.Therefore keeping in view of Second Schedule of the
Act, this Court do not see any reason to differ with the
6 FA 838.2004.odt
view taken by the Tribunal as well as the High Court in
so far as award of pecuniary compensation to the
dependents/claimants is concerned. We must point
out here that the learned counsel for the appellants
had argued that the notional sum of Rs. 15,000/-
should be enhanced and increased as the legislature
has not amended the Second Schedule and the same
continues to be in existence since it was enacted on
14.11.1994. We are not examining and going into this
aspect as the accident had taken place in the present
case nearly three years after the enactment of the
Second Schedule. The time difference between the
date of the enactment and the date of accident is not
substantial."
9. In the R.K.Malik's case, the Hon'ble Supreme
Court has also referred Lata Wadhawa's case. In a case
of Oriental Insurance Co. Ltd., Vs. Syed Ibrahim and ors
(supra), relied upon by the learned counsel for
respondent-Insurer, though Supreme Court relied upon
Lata Wadhawa's case, has not dealt with the Second
Schedule and multiplier mentioned therein.
10. In R K Malik's case, the Supreme Court has
referred almost all the cases to dealt with an issue of
grant of compensation in respect of death of young
child.
7 FA 838.2004.odt
11. In view of the observations of the Supreme Court
in the R.K. Maliks Case and, considering the facts and
circumstances of the present case, the notional income
as mentioned in the Second Schedule and multiplier
specified therein can form the basis of grant of
compensation. Thus, the appellants/claimants are
entitled for the compensation of Rs.1,50,000/- (Rs. One
lac Fifty Thousand). The learned counsel for the
appellant has not pressed grant of compensation under
non pecuniary heads. I do not find any reason to grant
interest from the date of this order. Hence, following
order.
O R D E R
I. First Appeal is partly allowed with
proportionate costs.
II. The Judgment and Award dated 1.8.2003
passed by the Member, Motor Accident
Claims Tribunal, Ambajogai in M.A.C.P.
No.7/2001 is hereby modified in the following
manner.
"The claimants are entitled to the amount
of Rs.1,50,000/- (Rs. One lac fifty
8 FA 838.2004.odt
thousand only) from the respondents
jointly and severally towards
compensation." Claimants are entitled to
the interest at the rate of Rs.9% p.a. from
the date of application till realization, as
per the modified award.
III. Rest of the Judgment of the Member, Motor
Accident Claims Tribunal, Ambajogai dated
1.8.2003 in MACP No.7/2001 stands
confirmed.
IV. Award be drawn up accordingly.
V. The claimants to pay the deficit court fees
within a period of six weeks from the date of
this order.
VI. Appeal is accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
...
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