Madhubala Nitin Munot And Ors vs Praveen K Shevale And Anr
2016 Latest Caselaw 1856 Bom

                                     1                       fa 1143.2006.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                         
                         FIRST APPEAL NO. 1143 OF 2006




                                                 
                                      ...
         1.      Smt. Madhubala Nitin Munot,
                 age 35 years, Occ. Household,




                                                
         2.      Kum. Nupura Nitin Munot,
                 age 11 years, Occ. Education.




                                    
         3.      Kum. Nikita Nitin Munot,
                 age 8 years, Occ. Education.
                             
                 Nos. 2 and 3 are minors, through
                 Natural Guardian appellant no.1.
                            
         4.      Kachardas Birdichand Munot,
                 age 61 years, Occ. Nil.

         5.      Mrs. Pushpabai Kachardas Munot,
      


                 age 56 years, Occ. Household,
   



                 All R/o Mayur Apartment, near 
                 Zopadi Canteen, Ahmednagar.        ..Appellants..
                                                 (orig claimants)
                 VERSUS





         1.      Mr. Praveen K. Shevale,
                 age near about 40 years,
                 Occ. Business, R/o Dwarka
                 Apartment, 161/62, Mukundnagar,





                 Pune - 400 037.

                 and/or

                 at present Shevale Automobiles,
                 Chavan Nagar, Near an Arch (near
                 Kamani), Beside Shankar Mahepatra 
                 Math, Pune Satar Road,
                 Pune.




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                                        2                      fa 1143.2006.odt

         2.      The United India Insurance Co. Ltd.,
                 having its Divisional Office, at 




                                                                          
                 Kisan Kranti Building,
                 Market Yard, Ahmednagar.          ..Respondents..




                                                  
                                      ...
                   Advocate for Appellants : Mr N C Garud
                     Respondent No.1 served - absent.  
                 Advocate for Respondent 2 : Mr S V Kulkarni 




                                                 
                                      ...
                         CORAM : V.K. JADHAV, J.

Dated: April 26, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the Judgment and Award

passed by the Member, Motor Accident Claims Tribunal,

Ahmednagar, dated 23.6.2006 in MACP No. 800/2000,

the original claimants have preferred this appeal to the

extent of quantum.

2. Brief facts, giving rise to the present appeal, are as

follows :-

a] On 1.3.2000 deceased Nitin was proceeding on

motor cycle bearing registration No.MH-16-G-2979 from

MIDC to Ahmednagar. One Ramchandra Bhagwan

Jogdand was the pillion rider. On way, in front of one

Hotel, a Milk Tanker bearing registration No.MH-12-

7838 came from his back side in excessive speed, driven

3 fa 1143.2006.odt

in rash and negligent manner and gave dash to the

motor cycle. In consequent of which, both of them fell

down on road. Deceased Nitin sustained serious

injuries and died on the spot. The accident had taken

place on account of the sole negligence of the driver of

the Tanker. The L.Rs. Of deceased Nitin had preferred

claim petition before the Tribunal, Ahmednagar for grant

of compensation under the various heads. Deceased

Nitin was running business of medical shop as he was

qualified pharmacist. Besides, medical shop he was

also personally cultivating his agricultural land.

Furthermore, the deceased had invested money in

Temparate Finance Company, Ahmednagar. He was

getting remuneration of Rs.30,000/- p.a. from the said

company towards the services rendered by him.

Deceased Nitin was the only earning member from his

family and all the claimants were depending upon his

income.

b] Respondent No.1-owner, though, duly served,

failed to appear and therefore, claim petition ordered to

proceed ex-parte against him.

4 fa 1143.2006.odt

3. Respondent no.2-Insurer has strongly resisted the

claim petition by filing written statement. Respondent-

Insurer has denied that the driver of the tanker was at

fault. Respondent-insurer also denied the income of

deceased Nitin. It is also contended that, the driver of

the tanker was not holding valid and effective driving

licence and, hence, the insurance company is thus not

liable to pay the compensation. The learned Member of

the Motor Accident Claims Tribunal, Ahmednagar, by its

impugned Judgment and Award dated 23.6.2006 partly

allowed the claim petition and thereby directed the

respondents no.1 and 2 jointly and severally do pay to

the applicants compensation of Rs.10,10,000/-

(inclusive of the amount if any paid under no fault

liability) with proportionate costs and interest on the

unpaid amount at the rate of 9% p.a. from the date of

filing of the application till realization of the amount.

The appellants-original claimants preferred this appeal

to the extent of quantum.

4. Learned counsel appearing for the appellants

submits that, the Tribunal has not considered the

5 fa 1143.2006.odt

income of deceased Nitin from agricultural source.

Learned counsel submits that, the Tribunal has also not

considered addition of income by considering the future

prospectus of deceased Nitin. Learned counsel submits

that even the Tribunal has not considered the income of

deceased Nitin from the Finance Company. Learned

counsel submits that, the Tribunal has not awarded the

compensation under the non-pecuniary heads and only

awarded the lump sum compensation of Rs.38,000/- for

the non-pecuniary loss without specifying the heads.

Learned counsel submits that, in view of the decision

rendered by the Apex Court in case of Rajesh Vs. Rajbir

Singh reported in (2013) 9 SCC 54, the claimants are

entitled for 50% of addition in income by considering

the future prospects.

5. Learned counsel for the respondent-insurer

submits that, the Tribunal has considered the income of

deceased Nitin from his medical shop business as per

the documents produced on record. Learned counsel

submits that, the future prospectus can only be

considered when there is strong and positive evidence

6 fa 1143.2006.odt

on record to show that there were definite prospectus of

income. Learned counsel submits that in case of

National Insurance Company Vs. Pushpa reported in

(2015) 9 Supreme Court Cases 166 in Paragraph No.5,

and in case of Shashikala and others Vs.

Gangalakshmamma and another reported in 2015

ACJ page 1239 the Apex Court held it appropriate to

refer the matter to a larger Bench as regards the issue of

manner of addition of income for future prospects. In

case of Shashikala (supra), the request was made for

constitution of a suitable larger Bench to decide the

issue as to addition of income towards future prospect,

in case of self employed or person of fixed wages, to be

added to the compensation towards dependency.

Learned counsel submits that, the Tribunal has

awarded just and reasonable compensation by

considering income. Learned counsel submits that, the

Tribunal has also awarded just and reasonable

compensation under the non pecuniary heads. Learned

counsel further submits that, even after death of person

who was cultivating the land, corpus of the agricultural

7 fa 1143.2006.odt

land remain as it is and, in that event, there cannot be

total loss in the agricultural income.

6. Undisputedly, the accident occurred due to rash

and negligent driving of the driver of the tanker alone

and the said tanker is owned by respondent no.1 and

insured with respondent no.2. Respondent No.2-

Insurer has failed to prove that the driver of the tanker

was not holding valid and effective driving licence at the

time of accident and, respondent no.1 owner has

thereby committed breach of conditions of the policy.

Respondent-insurer has not preferred any appeal

against said finding recorded by the Tribunal nor

preferred any cross objection so far as that finding is

concerned.

7. Deceased Nitin was running a business of Medical

Shop and the claimant no.1 has deposed accordingly

and produced on record various documents in support

of her evidence before the Tribunal. Claimants have

produced on record the certificate issued by the

Commissioner Food and Drugs, Maharashtra State

8 fa 1143.2006.odt

dated 4.2.2006 and said certificate discloses that licence

has been issued for running 'Darshana Medical and

General Stores' by deceased Nitin came to be cancelled

as proprietor of this shop was expired. Admittedly,

there is no other member in the family who is qualified

Pharmacist for running a medical shop. The claimants

have produced before the Tribunal three years income

tax returns and those are marked at Exh.37 to 45

respectively. The learned Member of the Tribunal, after

considering the entire evidence in this regard has rightly

considered the yearly income of deceased Nitin by way of

medical business to the tune of Rs.71,000/- p.a.

8. So far as yearly income from the agricultural land

is concerned, learned counsel for respondent-insurer

has rightly pointed out that, corpus of the agricultural

land would remain as it is. In that way, there cannot be

any total loss from the agricultural income as such.

The claimant no.1 has also admitted in her cross

examination that, deceased Nitin was not doing any

agricultural operation, but, he was only supervising the

same. Furthermore, the Tribunal has also observed

9 fa 1143.2006.odt

that there is no evidence to show that prior to death of

deceased Nitin partition was effected between him and

his brothers in respect of agricultural land.

9. Deceased Nitin owned and possessed agricultural

land to the extent of 4 acres and 7/12 extracts to that

effect are produced on record marked as Exh.29 to 32

respectively. The learned Member of the Tribunal on the

basis of evidence adduced before it has observed that,

agricultural land business is continued as before and so

the case of the claimants cannot be accepted that

because of demise of Nitin, family is required to stop the

agricultural business and consequently, there is total

loss of income. However, the loss in the agricultural

income on account of the personal supervision is quite

apparent and the claimants are certainly entitled for the

compensation to that extent. In a given facts and

circumstances of the case, same is appropriate to be

considered as Rs.2,000/- p.m. corresponds to

Rs.24,000/- per year.

10. Deceased Nitin was rendering services to one

10 fa 1143.2006.odt

Temperate Finance Private Limited Company and he was

one of the Director of the company. He was getting

salary of Rs.2,500/- p.m. corresponds to Rs.(2,500 x 12)

Rs.30,000/- per year. Certificate has been issued by the

Managing Director to that effect and the same is marked

as Exh.36. It appears that, the Tribunal has not

considered the same. The claimants are entitled for the

loss of income on account of the untimely accidental

death of deceased Nitin.

11. So far as addition of income by way of future

prospects is concerned, in the case of New India

Assurance Co. Ltd. Vs. Smt Alpa Rajesh Shah and ors

reported in 2014 (4)ALL MR 172 (supra), this Court has

taken a view that only when there is strong and positive

evidence on record to show that there were definite

prospects of increase in the income of deceased in

future, such a case can be treated as an exceptional

case in which future prospects of increase in the

earning can be considered. It is true that, issue as to

addition towards future prospects in case of self

employment or person with fixed wages has been

11 fa 1143.2006.odt

referred to the larger Bench. Pendency of such reference

does not prevent courts from adopting such course as is

held in the case of Manager National Insurance Co.

Ltd., Vs. Sanju P. Paul and another reported in 2013

AIR SCW 609. However, in absence of any positive

evidence about the future prospects, only on the basis

of young age of deceased Nitin, addition in the income

for future prospects can be considered in the facts and

circumstances of the present case.

12. It also appears from the impugned Judgment and

award that the Tribunal has awarded lumpsum

compensation of Rs.38,000/- under the non pecuniary

loss without specifying heads. Learned counsel

appearing for the appellants/original claimants by

relying on a case of Sanobanu Nazirbhai Mirza and

Ors. Vs. Ahmedabad Municipal Transport Service,

reported in 2013 (6) ALL MR 981 (S.C.), submits that,

the Tribunal has awarded a very meagre compensation

under the non-pecuniary heads. In a case relied upon

by the learned counsel for the appellants-original

claimants is concerned, no proposition of law is laid

12 fa 1143.2006.odt

down as such and the same can be considered in light

of the facts and circumstances of each case. In the

present case, however, the Tribunal has awarded very

meagre amount of compensation under the non-

pecuniary heads. In the present case, considering the

age of the appellant/claimant no.1, loss of consortium of

Rs.15,000/- would be appropriate, Rs.10,000/- for loss

of estate, Rs.10,000/- each for minor claimants no.2 and

3 for loss of love and affection and Rs.20,000/- towards

funeral expenses would be just and proper.

13. In the case in hand, the learned Member of the

Tribunal has erroneously applied the multiplier '18'

instead of '17'. In view of the above discussion and also

by applying correct multiplier, re-calculation of the

compensation is required to be done. Thus, income of

deceased Nitin is considered as Rs.71,000/- p.a. from

the medical shop business, Rs.24,000/- p.a. from the

agricultural source and Rs.30,000/- from Finance

Company. Thus, total loss of income per annum comes

to Rs.1,25,000/-. After deducting 1/3 rd amount from

his income as personal expenses an amount of

13 fa 1143.2006.odt

Rs.83,334/- comes to loss of income/dependency and

by applying multiplier '17' total compensation comes to

Rs.14,16,678/-

14. Furthermore, the claimants are also entitled for

the compensation under the non pecuniary heads as

worked out herein before. Thus, break up of the

compensation under various heads which can be

broadly categorized, as under :-

                            
         1.      Loss of future income/
                 dependency                                Rs.14,16,678/-

         2.      Loss of Consortium                        Rs.00,15,000/-
      


         3.      Loss of Estate                            Rs.00,10,000/-
   



         4.      Loss of Love and affection                Rs.00,20,000/-
                 (minor claimants 2,3 
                 Rs.10,000 each)





         5.      Funeral charges                           Rs.00,20,000/-
                                                           =============
                                                           Rs.14,81,678/-

Thus, the claimants are entitled for the total

amount of Rs.14,81,678/- alongwith interest as awarded

by the Tribunal. Hence, the following order.

O R D E R

I. First Appeal is hereby partly allowed with proportionate Costs.

14 fa 1143.2006.odt

II. The Judgment and Award dated 23.6.2006 passed by the Member, Motor Accident

Claims Tribunal, Ahmednagar in MACP

No.800/2000 is hereby modified as under :-

"The opponents No.1 and 2 shall jointly

and severally do pay to the claimants compensation of Rs.14,81,678/- (Rs. Fourteen lacs eighty one thousand six

hundred and seventy eight only) ig ( inclusive of the amount if any paid under No Fault Liability) with

proportionate costs and interest on the unpaid amount @ 9% p.a. from the date of filing of the application till realization

of the entire amount.

III. Rest of the Judgment and Award passed by the learned Member of the Motor Accident

Claims Tribunal, Ahmednagar in MACP No.800/2000 stands confirmed.

IV. Award be drawn up in tune with the above modifications.

V. First Appeal is disposed of.

                                                             ( V.K. JADHAV, J. )
         aaa/-                                   .....