Bombay High Court
New India Assurance Company Ltd. ... vs Shilpa Ganesh Tharewal And Others on 28 April, 2016
Bench: V.K. Jadhav
1 FA 129.2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 129 OF 2014
New India Assurance Company Ltd.,
Aurangabad, Through its Divisional Manager,
Adalat road, Aurangabad.
..Appellant..
(orig respondent No.3.)
VERSUS
1. Shilpa w/o Ganesh Tharewal,
age 33 years, Occ. Household,
2. Akanksha d/o Ganesh Tharewal,
age 14 years, Occ. Education.
3. Riddhi d/o Ganesh Tharewal,
age 12 years, Occ. Education.
(Respondents No. 2 and 3 are
minors u/g of their real mother,
Respondent No.1.)
All R/o Pardeshi Galli, Bhokardan,
District Jalna. .. Resp 1 to 3 orig claimants.
4. Sk. Saida Sk. Rehman,
age major, Occ. Business,
R/o D.No.11-20-14, Hanumanpet,
Kanchikacherla, District Krishna
(Andhra Pradesh)
5. Ankamala Rao J. Venkateshwar Rao,
age major, Occ. Driver,
R/o C/o Saida, Sk. Rehman,
D.No.11-20-14, Hanumanpet,
Kanchikacherla,
District Krishna (Andhra Pradesh State)
...Respondents...
..Resp No.4 & 5 Orig Resp 1 & 2
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2 FA 129.2014.odt
...
Advocate for Appellant : Mr S G Chapalgaonkar
Advocate for Respondents 1-3 : Mr R V Gore
Respondents No.4, 5 served-absent.
...
CORAM : V.K. JADHAV, J.
Dated: April 28, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and Award dated
17.8.2013 passed by the Chairman, Motor Accident
Claims Tribunal, Jalna in MACP No.132/2012, the
original respondent no.3-Insurer has preferred this
appeal.
2. Brief facts, giving rise to the present appeal, are as
under :-
a] On 24.5.2012 deceased Ganesh was proceeding to
Sillod from Bhokardan on his motorcycle bearing
registration No.MH-12-Z-7841 and one Swapnil was the
pillion rider. On way, when they reached within the
limits of village Malkheda Pati at about 03.30 p.m., one
truck bearing registration No.AP-16-TW-5979 driven by
respondent no.2 came from opposite side i.e. Sillod and
gave dash to the motor cycle of the deceased. Said truck
was driven by respondent no.2 in rash and negligent
3 FA 129.2014.odt
manner. In consequence of which, both the riders
sustained injuries and died on the spot. The L.Rs. of
deceased Ganesh preferred claim petition for grant of
compensation under the various heads. According to
them, deceased Ganesh was holding Diploma in
Mechanical Engineering and, he was running private
coaching classes in the name and style as "Pratik
Coaching Classes". In addition to this, he was also
personally cultivating his agricultural land. Petitioners
were entirely depending upon his income.
b] Respondents No.1 and 2 have failed to appear
before the Tribunal though they have duly served and
therefore, hearing of the petition ordered to be
proceeded ex-parte against them.
c] The appellant/respondent No.3-Insurer has
strongly resisted the claim by filing written statement,
wherein the respondent no.3 denied all the material
facts right from the occurrence of the accident till its
liability to pay the compensation to the claimants. It
has further contended that deceased Ganesh had
4 FA 129.2014.odt
himself contributed negligence. The learned Chairman
of the Tribunal by its impugned judgment and award
dated 17.8.2013 partly allowed the claim petition with
proportionate costs and thereby directed the
respondents 1 to 3 jointly and severally to pay the
compensation of Rs.17,14,000/- inclusive of No Fault
Liability amount with interest @ 7.5% p.a. from the date
of petition till realization of the amount. Being aggrieved
by the same, the original respondent no.3 - insurer has
preferred this appeal.
3. Mr. Chapalgaonkar, the learned counsel appearing
for the appellant submits that, deceased Ganesh was
entirely at fault and in fact, he had gone to wrong side
and gave dash to the truck coming from the opposite
direction. Learned counsel submits that, the Tribunal
has erroneously held that, the driver of the truck had
contributed negligence to the extent of 40%. Learned
counsel submits that, in fact, deceased Ganesh was
entirely responsible for the accident and, the driver of
the truck cannot be held responsible in any manner for
the said accident. Learned counsel further submits
5 FA 129.2014.odt
that, there is no proof that deceased Ganesh was
running coaching classes and was getting income from
the same. Learned counsel submits that, so far as
income from the agricultural land is concerned, there
cannot be a total loss of income of the agricultural land,
since corpus of the land would remain as it is. Learned
counsel submits that, the claimants have not produced
on record any 7/12 extract to show that after death of
deceased Ganesh, agricultural land remained
uncultivated. Learned counsel, in the alternate, submits
that, at the most, loss of agricultural income can be
considered in terms of lack of skilled and experienced
supervision over the cultivation of the land. Learned
counsel submits that, the Tribunal has awarded
excessive and exorbitant amount of compensation.
4. Mr Gore, the learned counsel for appearing
respondents-original claimants submits that, the driver
of the truck was at fault and deceased Ganesh had not
contributed negligence. Learned counsel submits that,
the claimants have not challenged the findings recored
by the Tribunal to the extent of contribution of
6 FA 129.2014.odt
negligence on the part of deceased Ganesh. The learned
counsel submits that, deceased Ganesh was a Diploma
holder in Mechanical Engineering. He was running
private coaching classes in the name and style as
'Pratik' Coaching classes. Learned counsel submits
that, there is no question of any registration of such a
coaching classes any where. Learned counsel submits
that, original admission forms of near about 30
students have been produced before the Tribunal.
Learned counsel submits that, even the claimants have
examined two witnesses whose children were taking
coaching in the said class and, they have paid coaching
charges to deceased Ganesh. Learned counsel submits
that, deceased Ganesh was personally cultivating his
agricultural land and, the claimant no.1 being widow
and claimants no.2 and 3 being minor children, there is
nobody in the family to look after the agricultural land
after demise of Ganesh. Learned counsel submits that,
in that way, there is loss of agricultural income.
Learned counsel submits that, the Tribunal has
considered the case from all the angles and accordingly
awarded just and reasonable compensation. Learned
7 FA 129.2014.odt
counsel submits that, no interference is required and
the appeal be dismissed with costs.
5. It appears from the police papers that, deceased
Ganesh was going from Bhokardan to Sillod and the
truck was coming from his opposite side i.e. from Sillod.
On careful perusal of the contents of the spot
panchnama Exh.25, it appears that, since deceased was
going to Sillod it was expected of him to keep the left
side of the road i.e. Southern side. The truck was
coming from the direction of Sillod i.e. from West. It was
expected to keep its left side of the road i.e. towards
North (Northern side). Spot of the accident as shown in
the spot panchanam Exh.25 is at a distance of less than
1/4th of the width from Northern end of the road.
Learned Chairman of the Motor Accident Claims,
Tribunal, Jalna, has, therefore, rightly observed that
deceased Ganesh went to wrong side to great extent and
truck was rightly coming by keeping the left side of the
road. However, considering the size of the vehicles
involved in the accident, the fact that respondent no.2
could have stopped the truck when he had noticed that
8 FA 129.2014.odt
the bike was approaching towards his truck from his
front side. The learned Chairman of the Tribunal has
rightly come to the conclusion that deceased Ganesh
has contributed negligence to the extent of 60% and
40% by driver of the Truck. Furthermore, same is also
not challenged by the respondents-claimants by filing
any appeal or by filing any cross objection.
6.
So far as income of deceased Ganesh from the
coaching class is concerned, there is no direct income
proof as such of the said income. However, certificate
produced at Exh.33 shows that deceased Ganesh was
having diploma in mechanical engineering and original
admission papers of the students were placed on record
before the Tribunal unmistakenly pointed out that,
deceased Ganesh was running coaching class named
and styled as 'Pratik' Coaching Classes. Furthermore,
claimants have also examined one Shankar Sapkal, who
has deposed that his daughter a student of 10th
standard was registered with the coaching class of the
deceased and he paid Rs.4,000/- towards first
installment of her fee. Admission forms of his daughter
9 FA 129.2014.odt
signed by him and also by deceased Ganesh produced
on record and the same is marked as Exh.37.
Furthermore, one another witness Ramkishan Talekar
also deposed before the Tribunal that, his grand son
Sanket, a student of 10th standard was also registered
with the coaching class of the deceased and he paid
installment of Rs.4,000/-. The original admission
papers of his grand son is placed on record and the
same is marked as Exh.39. However, the claimants
have not produced on record income tax returns, if at all
deceased Ganesh was earning Rs.8,000/- per student of
a batch of 30 students in total. Furthermore, it appears
from the original admission papers placed on record of
the other students, the fees of Rs.8,000/- is no where
shown in any of the admission papers including the
admission papers placed before the Tribunal and proved
through the witnesses.
7. So, in view of the above, it would be just and
appropriate to consider the income of deceased Ganesh
from his coaching classes @ Rs.15,000/- per month.
Deceased Ganesh was holding diploma in mechanical
10 FA 129.2014.odt
engineering and, it appears from the admission papers
placed on record that he was getting good response from
the students for his coaching classes. Even though
there is no evidence to show that the deceased Ganesh
had future prospects, however, considering his
qualification and the fact that he was getting good
response for his coaching classes, I do not find any fault
in the order of the Tribunal by adding 30% of income
towards his future prospects.
8. The Tribunal has however, committed mistake in
considering the loss of total income from the
agricultural source. It appears that the Tribunal has
considered Rs.60,000/- per year from the land
admeasuring 1H 26 R. It is true that there cannot be
any loss so far as agricultural land is concerned for the
reason that corpus of the land would remain as it is.
However, the tribunal has considered the loss of
agricultural income at some higher side. Deceased
Ganesh was personally cultivating the land and it also
appears from the record that, widow and minor children
are not in a position to look after the lands personally.
11 FA 129.2014.odt
In view of that there can be loss in the agricultural
income by way of lack of personal, skilled and
experienced supervision, Rs.2,000/- p.m. would be just
and proper.
9. In view of the above discussion, if income of
deceased Ganesh from the coaching class is considered
as Rs.15,000/- per annum, then yearly income comes to
(Rs.15,000 x 12) = Rs.1,80,000/- per year and, if the loss
of agricultural income is considered to the tune of
Rs.2,000/- p.m, then that comes to (Rs.2,000 x 12) =
Rs.24,000/- pa. Furthermore, in the given facts and
circumstances of the case, addition of 30% income
towards future prospects can be considered and by
deducting 1/3rd income of deceased Ganesh for his
personal expenses, total loss of income/dependency
comes to Rs.1,66,400/-. If the said amount is
multiplied by multiplier '16' then total loss of income
comes to Rs.26,62,400/-. Deceased Ganesh had
contributed negligence to the extent of 60% and
therefore, 40% of the loss of income as worked out
herein above, the total compensation comes to
12 FA 129.2014.odt
Rs.10,64,960/-. The Tribunal has awarded interest @
7.5 % p.a. instead of 9% p.a.
10. I do not find any fault in the impugned Judgment
and Award granting compensation of Rs.1.00 lac under
the non pecuniary heads.
11. In view of this, the claimants are entitled for the
total compensation of Rs.11,64,960/-. Hence, following
order.
O R D E R
I. First Appeal is hereby partly allowed with
proportionate costs.
II. The Judgment and Award dated 17.8.2013
passed by the Chairman, Motor Accident
Claims Tribunal, Jalna, is hereby modified
in the following manner :-
"The Respondents No. 1 to 3 shall jointly and
severally pay the petitioners/claimants
Rs.11,64,960/-(Rs. Eleven Lacs Sixty Four
Thousand Nine Hundred Sixty only) inclusive
of 'No Fault Liability' compensation awarded
under section 140 of the Motor Vehicles Act
with interest @ 9% p.a. from the date of
petition i.e. from 6.8.2012 till realization of
the amount."
13 FA 129.2014.odt
IV. Rest of the Judgment and Award passed by
the learned Chairman, Motor Accident
Claims Tribunal, Jalna in M.A.C.P.
No.132/2012 stands confirmed.
V. In the circumstances, there shall be no
order as to costs.
VI. Award be drawn up in tune with the
modifications, as aforesaid.
VII. Appeal is disposed of accordingly.
sd/-
( V.K. JADHAV, J. )
...
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