Bombay High Court
Devkabai Nimba Patil (Deore) vs Ravindra Kumar Agrawal And Ors on 11 August, 2016
Bench: P.R. Bora
1 FA No. 819/2012
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.819 OF 2012
Devkabai Nimba Patil (Deore)
Age: 53 Yrs., occu. Household,
R/o Fagane, Tq. Dhule,
Dist. Dhule. = APPELLANT
(orig.Claimant No.1)
VERSUS
1) Ravindra Kumar Agrawal
Age:Adult, occu.Truck Owner,
R/o 17, Ganesh Ch.Avenum,
Kolkata, Dist. Kolkata,
State - West Bangal 700 013.
2) The National India Insurance
Company Ltd. Nashikkrao Complex
2nd Floor, Near Dhule Municipal
Corporation, Dhule
Tq. And Dist. Dhule.'
Through Branch Manager,
3) Nago Budha Patil (Deore)
(Since deceased)untitled folder
4) Kamlabai Nago Patil (Deore)
Age: 68 Yrs., occu. Household,
::: Uploaded on - 11/08/2016 ::: Downloaded on - 12/08/2016 00:45:45 :::
2 FA No. 819/2012
Both R/o Fagane, Tq. And Dist.
Dhule. = RESPONDENTS
(No.1 & 2 orig.
Respondents, 3 & 4
orig.Claimants No.
2 and 3)
-----
Mr.Mahesh S.Patil, Advocate for Appellant;
Respondent No.1 is duly served through paper
publication and Resp. No. 4 is served;
Mr.S.P.Chapalgaonkar, Adv. for Respondent No.2.
ig -----
CORAM : P.R.BORA, J.
DATE OF RESERVING JUDGMENT : 3
rd
August,2016
DATE OF PRONOUNCING JUDGMENT:11
th
AUGUST,2016
JUDGMENT:
1) Heard. Admit. By consent, taken up for
final disposal. The original claimant No.1 in
MACP No.203/2008 decided by the Member, Motor
Accident Claims Tribunal, Dhule (for short, the
Tribunal) on 3rd August, 2011, has filed the
present appeal seeking enhancement in the amount
of compensation as awarded vide impugned Judgment
and Award.
2) The appellant, Respondent Nos. 3 & 4 are
the legal heirs of deceased Nimba Patil, who died
on 4.1.2008 in a vehicular accident having
involvement of a motor-cycle bearing registration
No. MH-18-Q9029 and a truck bearing registration
No. WB-23-B-2822.
3) As contended in the claim petition filed
before the Tribunal, age of deceased Nimba was 55
years on the date of accident and his monthly
income was Rs.3750. The learned Tribunal has
awarded the compensation of Rs.1,30,000/-
inclusive of the amount of No fault liability
(NFL) compensation. According to the appellants,
the Tribunal has awarded inadequate compensation
and has committed gross mistakes in determining
the amount of compensation.
4) Shri Mahesh Patil, The learned Counsel
for appellant submitted that while assessing the
amount of dependency compensation, the Tribunal
has wrongly held the take-home salary of deceased
Nimba as a base. The learned Counsel submitted
that deceased Nimba was earning gross salary to
the tune of Rs.3,739=75 per month and though from
his monthly salary, the amount towards
contribution of provident fund, ESI, LIC etc.
used to be deducted and after the said
deductions, his take-home salary was Rs.2581/-,
in fact, while considering the monthly income of
deceased Nimba, the amount which only could have
been deducted was towards profession tax
amounting to Rs.120/- and deducting the aforesaid
amount from his gross salary, his income ought to
have been held to the tune of Rs.3,619=75 for
determining the amount of dependency
compensation; whereas the Tribunal has held his
income to the tune of Rs.3,000/- and accordingly
has assessed the amount of dependency
compensation. The learned Counsel submitted that
the mistake so committed by the Tribunal needs to
be corrected and the amount of compensation needs
to be appropriately enhanced by holding the
income of deceased Nimba to the tune of Rs.
3,739=75.
5) The learned Counsel further submitted
that having regard to the age of deceased Nimba,
appropriate multiplier would have been 11 whereas
the Tribunal has assessed the amount of
compensation by applying the multiplier of 5.
The learned Counsel further submitted that in
view of the judgment of the Hon'ble Apex Court in
the case of Rajesh and Ors. Vs. Rajbir Singh and
ors. reported in (2013) 9 SCC 54, there must have
been addition of 15% to the actual monthly wages
of deceased Nimba while computing the future
prospect. The learned Counsel submitted that the
Tribunal has overlooked this aspect and has
assessed the compensation without such addition
of income.
6) The learned Counsel further submitted
that the amount awarded by the Tribunal towards
consortium, loss of estate and funeral expenses,
is also not in tune with the law laid down by the
Hon'ble Apex Court in the case of Sarla Verma Vs
DTC - (2009) 6 SCC 121 and Rajesh Vs. Rajbir
Singh (cited supra).
7) One more point is raised by learned
counsel for the appellant that though original
claimant No.2 is brother of deceased Nimba and
original claimant No.3 is wife of claimant No.2
i.e. sister-in-law of deceased Nimba, the
Tribunal has erroneously treated the original
claimant Nos.2 and 3 as the parents of deceased
Nimba and has accordingly awarded the
compensation to them also in proportion equal to
the present appellant, who is the wife of
deceased Nimba. The learned Counsel submitted
that, in fact, the petitioner Nos. 2 and 3 were
not claiming any compensation and were made
parties to the claim petition only for assistance
to petitioner No.1, i.e. wife of deceased Nimba,
and, therefore, the entire amount of compensation
ought to have been awarded to the present
appellant. The learned Counsel, therefore, prayed
for enhancing the compensation on the aforesaid
grounds and for correction of the impugned Award
in that regard also.
8) Shri Chapalgaonkar, learned Counsel
appearing for Respondent No.2 - Insurance
Company, was fair in submitting that the
compensation ought to have been assessed on the
total income of deceased Nimba, deducting there
from the amount of profession tax and to that
extent the compensation amount can be enhanced.
The learned Counsel further fairly conceded that
in the instant case, the appropriate multiplier
as provided in the case of Sarla Verma (cited
supra) would be of 11 and on that count also, the
amount of compensation is liable to be enhanced.
The other objections raised by the amendment,
according to learned Counsel are unsustainable
and deserve to be rejected.
9) On perusal of the impugned judgment, it
is revealed that the Tribunal has assessed the
amount of dependency compensation by holding the
income of deceased Nimba to the tune of
Rs.3,000/- per month. In view of the fact that
deceased Nimba was drawing monthly salary to the
tune of Rs.3739=75 and only the amount, which was
liable to be deducted from his said income, was
the amount of profession tax to the tune of
Rs.120/- while holding his monthly income, it
ought to have been held as Rs. 3,619=75 to round
it up Rs.3,620/- and accordingly, the amount of
compensation must have been assessed by the
Tribunal.
10) Though it was argued on behalf of the
appellant that addition of 15% in the income of
deceased Nimba ought to have been made while
determining the amount of compensation in view of
the law laid down by the Hon'ble Apex Court in
the case of Rajesh Vs. Rajbir Singh (cited
supra), the said contention cannot be accepted.
Reliance was placed by the learned Counsel
for the appellant on the discussion made by the
Hon'ble Apex Court in paras 8 and 9 of the
judgment in the case of Rajesh vs Rajbir Singh.
On careful perusal of the said observations,
it becomes clear that addition of 15% was
suggested in the income of the persons, who are
self-employed or on fixed wages and for whom age
of superannuation is not prescribed. In the
instant case, deceased Nimba was drawing a fixed
monthly salary on the pay scale basis and his age
of superannuation was also prescribed. As such,
in his case, the law laid down in the Case of
Sarla Verma would apply, wherein no addition is
provided in the cases of those above 50 years.
In the circumstances, as claimed by the
appellant, no addition can be made in the monthly
income of deceased Nimba while computing the
amount of dependency compensation.
11) The learned Tribunal has awarded an
amount of Rs.10,000/- towards loss of love and
affection and funeral charges. The amount so
awarded by the Tribunal is apparently inadequate.
It needs to be enhanced.
12) In view of the discussion, as above, the
amount of compensation has to be determined by
holding monthly salary of deceased Nimba to the
tune of Rs.3,620/- his annual income was, thus
Rs.43,440/-. By deducting 1/3rd of the said
income towards personal expenses of deceased
Nimba, the dependency of the claimants can be
assessed on the basis of remaining amount to the
tune of Rs.28,960/-. Having regard to the age of
deceased Nimba, appropriate multiplier will be of
11. By applying the said multiplier, the
compensation amount comes to the tune of Rs.
3,18,560/-.
13) As I earlier noted, the compensation
awarded by the Tribunal towards the loss of
estate and funereal expenses etc., is too
adequate, the claimant Nos. 3 and 4 had claimed
the compensation to the tune of Rs.5,00,000/- in
the claim petition filed by them before the
Tribunal. From the facts and circumstances on
record, which I have elaborately discussed herein
above, it appears that the claim petition must
have been allowed by the Tribunal toto. As
discussed herein above, I have held the claimants
entitled towards the dependency compensation to
the tune of Rs. 3, 18, 560/-. As such, I deem it
appropriate to enhance the compensation awarded
by the Tribunal towards loss of consortium, loss
of estate and funeral expenses from Rs. 10,000/-
to Rs.1,81,440/- in view of the judgments of the
Hon'ble Apex court in the case of Sarla Verma and
Rajesh Vs. Rajbir Singh. Thus, the claimants are
held entitled to the compensation of Rs.
5,00,000/- (Rupees five lakhs).
14) Now, about the apportionment of
compensation. The Tribunal has apportioned the
amount of compensation in three equal shares
amongst the original three claimants. There is
substance in the contention raised by the
appellant that on a wrong presumption that the
original petitioner Nos. 2 & 3 are the parents of
deceased Nimba, the Tribunal has awarded tbem the
compensation as equal to petitioner No.1.
Considering the fact that original claimant No.2
is brother of deceased Nimba and original
claimant No.3 is wife of original claimant No.2,
the apportionment of the amount of compensation,
as directed by the Tribunal, apparently appears
incorrect and unsustainable. Though brother of
deceased Nimba and wife of said brother are made
claimants in the original claim petition and
though it is also averred in the claim petition
that they all were depending upon the income of
deceased Nimba, it may be wholly unjust to grant
compensation to original claimant Nos. 2 and 3 at
par with original claimant No.1, i.e. present
appellant, who is widow of deceased Nimba and who
is much younger in age than claimant Nos. 2 & 3.
In the circumstances, the Award needs to be
modified in that regard also. It appears to me
that if 80% of the total amount of compensation
is awarded to the present appellant, i.e. widow
of deceased Nimba, and balance 20% amount is
jointly awarded to original claimant Nos. 2 and
3, it would meet the ends of justice.
13) For the reasons stated above, the
following order, -
ig ORDER
i) The appeal is allowed with costs;
ii) Respondent Nos.1 and 2 shall jointly and
severally pay to the claimants the
enhanced amount of compensation to the
tune of Rs.3,70,000/- along with interest
thereon @ 9% p.a. from the date of filing
of the application till its realization;
iii) 80% of the aforesaid amount shall be paid
to the present appellant; 50% of which
shall be deposited in Fixed Deposit
Receipt (FDR) in any Nationalized Bank in
the name of the appellant and 50% amount
be paid to her by account payee cheque.
Balance 20% amount be jointly paid to
Respondent Nos.3 and 4 by account payee
cheque.
sd/-
(P.R.BORA)
JUDGE
bdv/
fldr 5.8.16
