Bombay High Court
The New India Assurance Co. Ltd. ... vs Mrs. Sunita Sunil Kangude And Ors on 8 August, 2016
Bench: R.M. Savant
(46)-FA-885-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.885 OF 2015
The New India Assurance Co. Ltd. ]
Branch Manager, Hutatma Complex, ]
Park Chowk, Solapur through Mumbai ]
Regional Office-I, New India Bhavn, ]
2nd Floor, 34/38, Bank Street, Fort, ]
Mumbai-400 023 ].. Appellant
Versus
1. Sunita Sunil Kangude, ]
Aged about 36 years, ]
2. Sumeet Sunil Kangude, ]
Aged about 12 years, ]
3. Siddhi Sunil Kangude, ]
Aged about 9 years, ]
4. Samiksha Sunil Kangude, ]
Aged about 7 years, ]
Respondent nos.2, 3 and 4 minors ]
hence through natural guardian ]
mother Respondent no.1 herein. ]
All above R/o. C/o. Rachandra ]
Mane, Kaman, Taluk-North ]
Solapur, Dist : Solapur. ]
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(46)-FA-885-15.doc
5. Chidgupkar Mohd. Arif A. Hamid, ]
R/o. 9, Ambika Nagar, ]
Majarewadi, Solapur. ]
6. Sakhubai Annasaheb Kangude, ]
Aged about 66 years, ]
7. Annasaheb Bajaba Kangude, ]
Aged about 71 years, ]
Both R/o Pangaon, Tal-Barshi, ]
Dist: Solapur ig ].. Respondents
Mr. S. S. Jinsiwale for the Appellant.
Mr. R. S. Alange for the Respondent Nos.1 to 4.
CORAM : R.M. SAVANT, J.
DATE : 8th AUGUST 2016
ORAL JUDGMENT
1 Admit. Considering the nature of the challenge raised heard
forthwith.
2 The above First Appeal raises a challenge to the judgment and
order dated 11.09.2014 passed by the Learned Member of the Motor
Accident Claims Tribunal, Solapur ("MACT" for short), by which order, the
Motor Accident Claim Petition No.122 of 2013 ("MACP" for short) came to
be partly allowed and the Opponent Nos.1 and 2 were jointly and
severally held to pay an amount of Rs.30,09,600/- alongwith interest at
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the rate of 9% per annum from the date of petition i.e. 01.08.2013 till
realization of the amount together with proportionate interest. The MACT
has thereafter apportioned the amount by issuing further directions which
are contained in clauses 3A and 3B of the operative part.
3 The facts giving rise to the above First Appeal can in brief be
stated thus :-
The deceased one Sunil Annasaheb Kangude was involved in
an accident which took place on 22.03.2013. The said Sunil Kangude was
riding a motorcycle from Pangaon to Vairag which was given a dash by
one Sumo Jeep bearing registration No. MH-13/B-2744 which was coming
from the opposite direction. Due to the said dash Sunil Kangude sustained
serious injuries and died on the spot. It seems that thereafter an FIR was
registered by the local police i.e. Vairag Police Station in respect of the said
accident. The Respondent Nos.1 to 4 who are the Claimants filed the
instant claim Petition being MACP No.122 of 2013 claiming an amount of
Rs.50,00,000/- as compensation. The said claim was founded on the fact
that said Sunil Kangude was 39 years old at the time of his death and
working as a peon in a local school and that he was getting salary of
Rs.17,531/- per month. It was also the case of the Petitioners that Sunil
Kangude was having a tractor and milching cows and she buffaloes. It was
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their case that Sunil Kangude was earning Rs.10,00,000/- per annum from
agricultural income and Rs.1,00,000/- from tractor.
4 The Opponent No.1 i.e. the Respondent No.5 though served
did not appear.
5 The Opponent No.2 i.e. the Appellant herein the New India
Assurance Co. Ltd. filed its written statement and denied the allegations
made in the MACP. It was the case of the Insurance Company that the
accident had occurred on account of the rash and negligent driving of the
said Sunil Kangude. The maintainability of the MACP was also challenged
on the ground of non-joinder of necessary parties. It was also the case of
the Insurance Company that the vehicle in question i.e. Sumo Jeep was
not having valid fitness certificate and the driver was not having effective
driving licence and therefore there was breach of the conditions of the
policy, the age of the deceased was also sought to be disputed.
6 The Trial Court on the basis of the pleadings on record framed
the following issues :-
"1. Whether the death of Sunil Annasaheb Kangude was caused
on account of accident dated 22.03.2013 arising out of the
use of Sumo Jeep bearing No. MH-13/B-2744 ?
2. Whether the accident was caused due to rash and negligent
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driving of the Sumo Jeep bearing No. MH-13/B-2744 by its
driver ?
3. Whether the petitioners are entitled to compensation ? If
yes, to what amount and from whom ?
4. What order and decree ?"
7 In so far as evidence is concerned, the Claimants adduced the
evidence of the Claimant No.1. The Claimants also produced documents in
the form of the motor accident report Exh.46, copy of the FIR Exh.47,
copy of the complaint dated 23.03.2013 filed by Police Naik Sahdeo
Machhindra Jagdale, copy of the inquest panchanama Exh.50 and copy of
the postmortem report Exh.51. The MACT on the basis of the report as
also the FIR, recorded a finding that the accident had occurred on account
of the rash and negligent driving by the driver of the Jeep on account of
which dash was given to the motorcycle of Sunil Kangude. The MACT
further recorded a finding that Sunil Kangude had died in view of the
serious injuries that he had suffered to the head.
8 In so far as the issue of compensation is concerned, the MACT
has adverted to the 7/12 extract of the agricultural lands Gat No.821, 851
and 852 situated at Pangaon which documents were marked as Exh.62 to
64. The MACT has also adverted to the evidence of one Vijay Bhagwantrao
Gaikwad at Exh.38 whose evidence was to the effect that he was serving
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as a clerk in the sugar factory in the year 2012-13 and the deceased Sunil
Kangude had sent sugarcane worth Rs.2,46,897/- to the said sugar factory.
The MACT in view of the fact that after the death of Sunil Kangude the
said lands were already inherited by the Claimants did not deem it
appropriate to consider the income from agriculture. The MACT in so far
as Sunil Kangude's income from employment is concerned by relying upon
the evidence which was on record came to a conclusion that Sunil
Kangude's net salary would be Rs.17,000/- per month and thereafter
deducting 1/4th of the amount came to a conclusion that the total loss of
salary to the Claimants is Rs.12,750/- per month and the total annual loss
of income to the Claimants is Rs.1,53,000/-. Reliance was placed on the
judgments of the Apex Court reported in 2009(6) SCC 121 in the matter
of Sarla Verma Vs. DTC as also (2013) 9 SCC 54 in the matter of Rajesh
and others Vs. Rajbir Singh and others, wherein the Apex Court has held
that for persons in the age group of 40 to 50 years, there should be
addition of 30% towards loss of future prospects. The MACT therefore on
the said basis calculated the annual loss to the Claimants as being
Rs.1,53,000/- + Rs.45,900/- = Rs.1,98,900/- and by applying the
multiplier of 14 as Sunil Kangude was in the age group of 40 to 50
calculated total dependency in the sum of Rs.27,84,600/-. In the light of
the judgment of the Apex Court in Rajesh's case (supra), an amount of
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Rs.25,000/- towards funeral expenses, Rs.1,00,000/- for loss of
consortium and Rs.1,00,000/- for loss of love and affection and guidance
for minor children have to be added and therefore, awarded the total
amount of Rs.30,09,600/- and on the said amount awarded the interest at
the rate of 9% per annum from the date of the Petition i.e. 01.08.2013 till
realization. As indicated above, it is the said judgment and order dated
11.09.2014 passed by the MACT, Solapur, which is taken exception to by
way of the above First Appeal.
9 The Learned Counsel appearing on behalf of the Insurance
Company i.e. Appellant would contend that though in the Memo of Appeal
there are various grounds, the impugned judgment and order passed by
the MACT, Solapur, is challenged on the ground that the MACT had erred
in calculating and awarding future prospects at the rate of 30% to the
Claimants. It was the submission of the Learned Counsel that the deceased
was in a private employment and therefore future prospects could not
have been taken into consideration.
10 Per contra, the Learned Counsel appearing on behalf of the
Respondent Nos.1 to 4 would support the computation on the basis of the
future prospects at 30%. It was the submission of the Learned Counsel
that having regard to the judgments of the Apex Court in Rajesh's case
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(supra) and Munna Lal Jain & anr. Vs. Vipin Kumar Sharma & ors.
reported in 2015(4) Bom.C.R. 72, even in respect of private employment
the loss of future prospects would have to be taken into account.
11 Having heard the Learned Counsel for the parties, I have
considered the rival contentions. As indicated above, the MACT, Solapur,
has on the basis of the evidence on record, came to a conclusion that it is
on account of the rash and negligent driving of the driver of the vehicle
i.e. Sumo Jeep bearing registration No. MH-13/B-2744 that the accident
had occurred and that the deceased had expired on account of the serious
injuries that he had suffered to his head in the said accident. The MACT,
Solapur, has also on the basis of the material on record which was the
salary certificate as also the oral evidence of the Headmaster of the school
has recorded a finding that the deceased Sunil Kangude was working as a
peon and was drawing salary of Rs.17,000/- per month. The MACT
thereafter in terms of Sarla Verma's case (supra) has deducted 1/4th of the
amount towards personal expenses as also added 30% towards future
prospects. As indicated above, the grievance of the Insurance Company is
as regards the Award of 30% on account of loss of future prospects and
the said challenge is sought to be justified by contending that Sunil
Kangude being employed privately, there could not have been loss of
future prospects. In the light of the judgments of the Apex Court in
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Rajesh's case (supra) as also Munna Lal Jain's case (supra), the said
contention cannot be countenanced. A useful reference could be made to
paragraph 11 in Munna Lal Jain's case (supra). The said paragraph reads
thus :-
"11. As far as future prospects are concerned, in (Rajesh
and others Vs. Rajbir Singh and others), 2013 B.C.I. (soft)
331 (S.C.): 2013(9) S.C.C. 54 a three-Judge Bench of this
Court held that in case of self-employed persons also, if the
deceased victim is below 40 years, there must be addition
of 50% to the actual income of the deceased while
computing future prospects. To quote :
"8. Since, the Court in Santosh Devi case
actually intended to follow the principle in the
case of salaried persons as laid down in Sarla
Verma case and to make it applicable also to the
self-employed and persons on fixed wages, it is
clarified that the increase in the case of those
groups is not 30% always; it will also have a
reference to the age. In otherwords, in the case of
self-employed or persons with fixed wages, in
case, the deceased victim was below 40 years,
there must be an addition of 50% to the actual
income of the deceased while computing future
prospects. Needless to say that the actual income
should be income after paying the tax, if any.
Addition should be 30% in case the deceased was
in the age group of 40 to 50 years."
The deceased being of the age of 30 years, 50% is the
required addition."
11 Hence the issue of loss of future prospects in case of self
employed persons and the percentage at which it is to be calculated is set
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at rest by the Apex Court. Since the challenge is restricted to the aforesaid
aspect, there is no merit in the above First Appeal which is accordingly
dismissed.
[R.M. SAVANT, J]
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