Bombay High Court
Sanjay Narhar Songire & Anr vs Baban Kashinath Ingole & Anr on 25 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 856 OF 2004
1. Sanjay s/o Narhar Songire
Age 37 years, Occ. Labour
R/o. Vishnunagar, Deopur Dhule
Taluka and District Dhule
2. Sou. Lalita w/o Sanjay Songire
Age 31 years, Occ. Household,
R/o. As above ...Appellants
1.
Versus
Baban s/o Kashinath Ingole
(deleted as per order dated
9.12.2015)
2. The Maharashtra State Road
Transport Corporation Ltd. ...Respondents
.....
Mr. S.A. Nagarsoge, Advocate for the appellants
Mr. D.S. Bagul, advocate for the respondent No.2
.....
CORAM : V. K. JADHAV, J.
DATED : 25th APRIL, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the Judgment and Award dated 1.3.2004
passed by learned Member, Motor Accident Claims Tribunal, Dhule
in M.A.C.P. No.663 of 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 :-
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a] Deceased Bhuri @ Nilima aged about 3 yeas was the daughter
of claimants. On 1.11.2001 at about 1.45 p.m. she was passing in
front of S.T. Bus No. MH-12-UA-8634 at S.T. Stand, Bhadgaon
alongwith one Shantabai Narhar Songire and at that time,
respondent No.1, who was the driver of said S.T. Bus, knocked her
down. In consequence of which, deceased Bhuri @ Nilima had
sustained grievous multiple injuries and died on the spot. The
claimants being the legal representatives, preferred Claim Petition
before the Motor Accident Claims Tribunal, Dhule, for grant of
compensation under various heads. Respondent No.1-driver and
respondent No.2-M.S.R.T.C. had strongly resisted the claim petition
by filing their written statement. They have denied the claim in toto. It
is contended that the accident occurred due to negligence on the part
of deceased Bhuri who tried to cross the road in front of moving bus.
Learned Member, Motor Accident Claims Tribunal, Dhule, by its
impugned Judgment and award dated 1.3.2004, partly allowed the
claim petition and thereby awarded compensation of Rs.60,000/-
alongwith interest. The appellants-original claimants preferred this
appeal to the extent of quantum.
3. Learned counsel for the appellants submits that, the Tribunal
has not applied Second Schedule and the multiplier specified therein
to grant compensation. Learned counsel submits that, by applying
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Second schedule and relevant multiplier, the claimants are entitled
for compensation of Rs.1,50,000/-.
4. Learned counsel for the appellant in order to substantiate his
submissions placed his reliance on the decision in the case of
R.K.Malik and another Vs. Kiran Pal and others, reported in AIR
2009 SC 2506.
5.
Learned counsel for Respondent No.2 submits that, in cases of
death of young children of tender age, in view of uncertainties
abound, financial loss suffered by the parents is incapable of
mathematical calculation. Learned counsel submits that, by
considering the same, the Tribunal has rightly awarded
compensation.
6. In order to substantiate his submissions, learned counsel has
placed his reliance on the judgment in the case of 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
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consideration. Learned counsel for the Respondent No.2 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
1.11.2001. In R.K.Malik's case (supra) relied upon by learned
counsel for the appellants, the date of accident is 18.11.1997.
Considering the date of accident in the present case, the notional
income mentioned in Second Schedule and multiplier method can
form the basis for pecuniary compensation. The Hon'ble Supreme
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
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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
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 R.K.Malik's case, the Hon'ble Supreme Court has also
referred Lata Wadhawa's case. In the case of Oriental Insurance
Co. Ltd., Vs. Syed Ibrahim and ors (supra), relied upon by learned
counsel for respondent No.2, though the Supreme Court relied upon
Lata Wadhawa's case, has not dealt with the Second Schedule and
multiplier mentioned therein.
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10. In R K Malik's case, the Supreme Court has referred almost all
the cases dealt with the issue of grant of compensation in respect of
death of young child.
11. In view of the observations of the Supreme Court in R.K.
Malik's Case and considering the facts and circumstances of the
present case, notional income as mentioned in the Second Schedule
and multiplier specified therein can form the basis for grant of
compensation.
Thus, the appellants/claimants are entitled for
compensation of Rs.1,50,000/- (Rs. One Lac Fifty Thousand).
Learned counsel for the appellants have 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.
ORDER
I. First Appeal is partly allowed with proportionate costs.
II. The Judgment and Award dated 1.3.2004 passed by the
Member, Motor Accident Claims Tribunal, Dhule in
M.A.C.P. No.663 of 2001 is hereby modified in the
following manner.
"The claimants are entitled to an amount of
Rs.1,50,000/- (Rs. One Lac Fifty Thousand only)
from the respondent-MSRTC towards compensation.
Claimants are entitled to interest at the rate of 9%
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p.a. from the date of application till realization, as per
the modified award."
III. Rest of the Judgment and award passed by the Member,
Motor Accident Claims Tribunal, Dhule dated 1.3.2004 in
M.A.C.P. No.663 of 2001 stands confirmed.
IV. Award be drawn up accordingly.
V. The claimants to pay deficit court fees within a period of
six weeks from the date of this order.
VI. Appeal is accordingly disposed of.
( V. K. JADHAV, J.)
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