Bombay High Court
Anita Netaji Bhong And Ors vs Shrikrishna Construction ... on 22 August, 2016
Bench: P.R. Bora
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THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
FIRST APPEAL NO. 1714 OF 2012
1] Anita w/o Netaji Bhong,
Age : 31 years, Occ. Household,
2] Pratiksh d/o Netaji Bhong,
Age: 14 years, Occ. Education,
3] Somnath s/o Netaji Bhong,
Age: 11 years, Occ. Education,
4]
Jeevan s/o Rangnath Bhong,
Age: 61 years, Occ. Nil,
5] Indubai w/o Jeevan Bhong,
Age: 55 years, Occ. Nil.
All r/o: Jayphal, Tq. Ausa, Dist: Latur.
[Appellant 2 and 3 are since minors
under guardianship of applicant no.1
their natural mother.] ... APPELLANTS
[Original Claimants]
V E R S U S
1] Shrikrishna Construction Company,
Through its Manager, R/o: Mitra Nagar,
Near Post Office, Latur, Tq. Dist. Latur.
2] ICICI Lombard General Insurance Company,
Through its Branch Manager,
above Parijat Mangal Karyalaya,
Ausa Road, Latur. Tq. Dist. Latur. ... RESPONDENTS
...
Mr. S. S. Shinde, Advocate for the Appellant.
Mr. Abhijeet Choudhari, Advocate for Respondent No.2.
...
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2 FIRST APPEAL 1714 OF 2012.odt
CORAM : P. R. BORA, J.
DATE : 22nd August, 2016.
JUDGMENT:
. Heard.
2 Admit.
3 By consent of the learned counsel appearing for the
respective parties, the appeal is taken up for final disposal.
4 The Appellants have filed the present appeal seeking
enhancement in the amount of compensation awarded by the Motor
Accident Claims Tribunal, Latur, in Motor Accident Claim Petition
No.119 of 2011.
5 The Appellants had filed the aforesaid claim petition under
Section 163 (A) of the Motor Vehicles Act, 1988 (hereinafter referred
to as "the Act") seeking compensation on account of death of one
Netaji Jeevan Bhong, who died in a vehicular accident on 7 th March,
2011, having involvement of a Bajaj motorcycle and a Telco Tipper
bearing registration No.MH.24.A.3963. The Appellants had claimed
the compensation of Rs.4,00,000/-. As was averred in the claim
petition, the age of deceased Netaji at the time of his death was 35
2 FIRST APPEAL 1714 OF 2012.odt
years and his income was stated to be Rs.5,000/- per month. The
learned Tribunal after having assessed the oral and documentary
evidence brought before it, awarded the compensation of
Rs.2,45,000/- to the Claimants jointly and severally from the owner
and the insurer of the Tipper alongwith interest thereon at the rate of
7.5% per annum from the date of petition till the realization of the
compensation amount. Dissatisfied by the amount of compensation
so awarded, the original Claimants have filed the present appeal.
6 The following facts are not disputed by the Respondents :
i. That Netaji Jeevan Bhong died in vehicular
accident occurred on 7th March, 2011, having
involvement of Telco Tipper bearing registration
No.MH.24.A.3963.
ii That Tipper was validly insured with Respondent
No.2 - Insurance Company and the insurance
policy was in force.
7 The learned counsel for the Appellants submitted that
though there was evidence as about the income of deceased Netaji,
2 FIRST APPEAL 1714 OF 2012.odt
the learned Tribunal has failed in appreciating the evidence. The
learned counsel submitted that even in absence of any evidence as
about the income of deceased Netaji, the Tribunal ought to have
determined the amount of compensation on the basis of notional
income to the tune of Rs.36,000/- per annum. The learned counsel
submitted that the Tribunal has held the annual income of deceased
to the tune of Rs.21,000/- and had accordingly awarded the
compensation. The learned counsel further submitted that the
Tribunal has also awarded inadequate amount towards non-pecuniary
damages. The learned counsel, therefore, prayed for enhancement in
the amount of compensation and to accordingly modify the award,
impugned in the present appeal.
8 Shri Choudhari, the learned counsel for Respondent No.2
- Insurance Company supported the impugned judgment. The
learned counsel submitted that despite due opportunity given to the
Appellants, they did not produce any cogent and sufficient evidence
as about the income of deceased Netaji and also did not produce 7/12
extract of the agricultural land stated to be under cultivation of
deceased Netaji when he was alive. In the circumstances, according
to the learned counsel, whatever compensation has been awarded by
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the Tribunal is just and fair and no interference is required in the
impugned judgment. The learned counsel, therefore, prayed for
dismissal of the appeal.
9 After having heard the arguments advanced by the
learned counsel for the respective parties and on perusal of the
impugned judgment, it is apparently revealed that the amount of
compensation as awarded by the Tribunal is inadequate and cannot
be said to be just and fair compensation in the facts and
circumstances of the case. Even if it is accepted that the Claimants
could not bring on record any documentary or other evidence so as to
prove the actual income of deceased Netaji, the Tribunal must have
held the income of deceased Netaji notionally to the tune of
Rs.3,000/- per month i.e. Rs.36,000/- per annum. The Tribunal has
grossly erred in holding the income of deceased Netaji to the tune of
Rs.21,000/- per annum.
10 I hold the income of deceased Netaji to the tune of
Rs.36,000/- per annum. 1/3rd of the said amount will have to be
deducted towards the personal expenses of the deceased. It has to
be assumed that deceased Netaji must be spending the balance
2 FIRST APPEAL 1714 OF 2012.odt
amount of Rs.24,000/- per annum on the maintenance and/or welfare
of his family members. It is not in dispute that the age of deceased
Netaji was around 35 years at the time of his death. The multiplier of
17 thus will be applicable for determining the amount of
compensation. By applying the said multiplier, the amount of
dependency compensation comes to Rs.4,08,000/- (24,000 x 17 =
4,08,000). The Tribunal has awarded the compensation of Rs.7,000/-
towards non-pecuniary damages. The Appellants / Claimants are
thus entitled for the total compensation amounting to Rs.4,15,000/-.
In the facts and circumstances of the case, it appears to me that this
would be the just and fair compensation payable to the Appellants /
Claimants.
11 The Appellants had admittedly claimed the compensation
of Rs.4,00,000/- in the motor accident claim petition before the
Tribunal and have accordingly paid the Court fees on the said
amount. In view of the fact that the compensation being determined
by this Court is in excess to the amount claimed by the Appellants /
Claimants, they will have to pay the deficit Court fees on the excess
amount before preparation of the modified award. As I have noted
earlier, the Respondents have not disputed their liability to pay the
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amount of compensation. In the result, the following order is passed:
O R D E R
I. The Appellants / Claimants are held entitled for
the total compensation amounting to
Rs.4,15,000/- inclusive of N.F.L. compensation.
II. Respondent Nos.1 and 2 shall jointly and
severally pay the aforesaid amount of
compensation to the Appellants / Claimants with
interest thereon at the rate of 7.5% per annum
from the date of petition till the date of realization
of the compensation amount.
III. The amount of compensation be divided in four
equal shares and one share each be given to
Claimant Nos.1 to 3 and one share jointly to
Claimant Nos.4 and 5.
IV. The amount of compensation falling to the share
of Claimant Nos.2 and 3 be deposited in any
nationalized bank of the choice of Claimant No.1,
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till they attain majority with liberty to withdraw
accrued quarterly interest.
V. Modified award be drawn accordingly after
payment of the deficit Court fees by the
Appellants / Claimants.
VI. Appeal stands allowed in the aforesaid terms.
[ P. R. BORA, J. ]
ndm
