Bombay High Court
Manisha Namdeo Kharat And Others vs United India Insurance Co. Ltd. ... on 24 August, 2016
Bench: P.R. Bora
1 FA NO.191 OF 2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.191 OF 2016
1. Manisha Wd/o.Namdeo Kharat,
Age 28 years, Occu.Household,
R/o Naregaon, Tq. & District Aurangabad.
2. Om s/o Namdeo Kharat,
Age 6 years, Occu.Minor,
R/o. As above.
3.
Sanjana d/o Namdeo Kharat,
Age 3 years, Occu. Minor,
R/o As above.
No.2 and 3 are minors, U/G. of
Appellant No.1 Manisha Wd/o.Namdeo Kharat.
4. Sakhubai W/o. Tukaram Kharat,
Age 58 years, Occu.Household,
R/o. As above.
5. Tukaram s/o. Bala Kharat,
Age 63 years, Occu.Nil,
R/o As above.
...APPELLANTS
(Org.Claimants)
VERSUS
1. United India Insurance Company Limited,
Through its Branch Manager, Aurangabad.
(Copy to be served on Divisional Manager,
Divisional Office, House No.5/5/76,
PB-506, V.P.Chowk, New Osmanpura,
Aurangabad).
2. Habib Khan s/o Bashir Khan,
Age Major, occu. Business,
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2 FA NO.191 OF 2016
R/o. Shah Bazaar, Aurangabad.
3. Rohidas s/o Patilba Ushir,
Age : Major, Occu. Driver,
R/o. N-4, Jai Bhavani Nagar,
CIDCO, Aurangabad.
...RESPONDENTS
(Org.Respdt.Nos. 1 to 3)
...
Mr.Deshmukh Mohit R., Advocate for the appellants.
Mr.Bodade S.R., Advocate for respondent no.1.
Mr.P.C.Mayure, Adv., for respondent nos. 2 and 3.
...ig
CORAM: P.R.BORA, J.
DATE : August 24th, 2016
***
ORAL JUDGMENT:
1. Heard. Admit. With the consent of the
learned Counsel appearing for the parties, heard finally.
2. The appellants have challenged the judgment
and order passed by the Member, Motor Accident Claims
Tribunal, Aurangabad, in Motor Accident Claim Petition
No.551/2013, on 16th September, 2015. The impugned
judgment is challenged only on the ground that though the
Tribunal did assess the amount of compensation payable
to the claimants to the tune of Rs.12,04,200/- (Rs. twelve
3 FA NO.191 OF 2016
lacs, four thousand, two hundred), awarded to the
claimants the compensation only of Rs.10,00,000/- (Rs.
ten lacs) since in the claim petition the claimants have
claimed that much of compensation. Shri Deshmukh,
learned Counsel appearing for the appellants, relying on
the judgment of the Honourable Apex Court in the case of
Nagappa Vs.Gurdial Singh ( 2003 (2) SCC 274),
submitted that the Tribunal can award compensation more
than the amount claimed by the claimants if, according to
the Tribunal, the claimants are entitled to such amount.
Learned Counsel, therefore, prayed for modification of the
award to the aforesaid extent.
3. Shri Bodade, learned Counsel appearing for the
respondent no.1 opposed the submissions advanced on
behalf of the appellants. Learned Counsel submitted that
the compensation awarded by the Tribunal of
Rs.10,00,000/- (Rs. ten lacs) is also on higher side and the
Tribunal has grossly erred in awarding the said
compensation. Learned Counsel submitted that without
there being any evidence as about the income of the
deceased, the Tribunal has wrongly held the income of the
4 FA NO.191 OF 2016
deceased to the tune of Rs.4000/- and has also further
erred in adding 50 per cent of the said income towards
future prospects. Learned Counsel further submitted that
it was not the case of the claimants that they are unable to
pay the Court fees on the amount more than
Rs.10,00,000/- ( Rs. ten lacs) and hence the claim was
restricted to the amount of Rs.10,00,000/-. In such
circumstances, according to learned Counsel, no error has
been committed by the Tribunal in awarding the
compensation of the amount claimed by the claimants.
Learned Counsel, therefore, prayed for dismissal of the
appeal.
4. On perusal of the impugned judgment and more
particularly paragraph Nos.16 and 17 of the said
judgment, it is quite clear that the Tribunal has held the
appellants / claimants entitled to the total compensation of
Rs.12,04,200/- but did not award the said amount and
awarded only the amount of Rs.10,00,000/- for the reason
that the claimants had filed the claim petition claiming the
compensation of Rs.10,00,000/-.
5 FA NO.191 OF 2016
5. The view so taken by the learned Tribunal,
apparently, cannot be sustained. Section 168 of the
Motor Vehicles Act, 1988, casts a duty on the Tribunal to
assess the just and fair amount of compensation payable
to the claimants and it, therefore, follows that the Tribunal
is not powerless in making an award even in excess of the
amount of compensation claimed. As held by the
Honourable Apex Court in the case of Nagappa (cited
supra), under the provisions of the Act, there is no
restriction that compensation could be awarded only upto
the amount claimed by the claimants. It is further
observed that in an appropriate case where, from the
evidence brought on record, if the Tribunal considers that
the claimant is entitled to get more compensation than
claimed, the Tribunal may pass such award. In view of
the law laid down by the Honourable Apex Court, the
learned Tribunal must have awarded the compensation
which, according to it, was just compensation payable to
the claimants. The award impugned in the present
appeal, therefore, needs to be modified to the aforesaid
extent.
6 FA NO.191 OF 2016
6. The objections raised by the learned Counsel
appearing for respondent no.1 are without any merit. If
the respondent no.1 is of the opinion that the Tribunal has
erroneously awarded the compensation of Rs.10,00,000/-,
it was open for it to challenge the said judgment on the
said ground. Admittedly, respondent no.1 has not filed
any appeal. Secondly, merely because the claimants
have not expressly stated any reason for restricting the
claim to the tune of Rs.10,00,000/-, the same cannot be a
ground for not awarding the amount more than the said
amount if from the evidence on record, the claimants are
found entitled to the said amount.
7. For the reasons stated above, the appeal
deserves to be allowed. Hence, the following order:
ORDER
1) The appeal is allowed. The appellants /
claimants are held entitled for the total compensation of
Rs.12,04,200/- ( Rs. twelve lacs, four thousand, two
hundred only).
7 FA NO.191 OF 2016
2) Respondent nos. 1 to 3 shall jointly and
severally pay the enhanced amount of compensation
amounting to Rs.2,04,200/- ( Rs. two lacs, four thousand,
two hundred) to the claimants along with the interest
thereon at the rate of 9 per cent per annum from the date
of filing of the claim petition till realization of the amount.
3)
The enhanced amount of compensation along
with the interest accrued thereon shall be paid to appellant
No.1 Manisha widow of Namdeo Kharat out of which 50 per
cent shall be invested in Fixed Deposit Receipt in any
nationalized Bank for a period of three years and balance
50 per cent be paid to her by crossed account payee
cheque.
4) Save and except the order as above, the other
part of the order passed in MACP No. 551 of 2013 is
maintained as it is.
5) The appellants / claimants shall pay the deficit
Court fees within six weeks from the date of this order.
8 FA NO.191 OF 2016
6) The modified award be prepared after payment
of the deficit Court fees.
(P.R.BORA)
JUDGE
...
AGP/191-16fa
