Bombay High Court
New India Assurance Co.Ltd ... vs Deepali Babasaheb Nimse And Ors on 29 February, 2016
Bench: T.V. Nalawade
1 FA 375 of 2000
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.375 of 2000
* The New India Assurance Co. Ltd.
Branch Swantatrayaveer Savarkar
Udyog Bhavan, Congress Bhavan
Marg, Shivajinagar, Pune 411005,
Through the Divisional Manager,
The New India Assurance Co. Ltd.
D.O. No.I, Adalat Road, Aurangabad. .. Appellant.
Versus
1) Deepali Babasaheb Nimse,
Age 20 years,
Occupation : Household,
R/o Village Pokharwadi,
Taluka and District Ahmednagar.
2) Parubai w/o Mohan Nimse,
Age 46 years,
occupation : household,
R/o As above.
3) Sampat s/o Mohan Nimse,
Age 21 years,
occupation : Education,
R/o As above.
(respondent No.3 is abated as per
order dated 3-2-2004)
4) Raj Mohan Nimse,
Age 18 years,
Occupation & R/o As above.
5) Dadu s/o Shantaram Kadam,
Age Major,
Occupation : Driver,
R/o Laskar Bungalow No.10,
Pune.
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2 FA 375 of 2000
6) Mohan Santu Nimse
Age 50 years,
Occupation : Nil (Deleted)
7) Dinshaw M. Kama,
Age Major, Occu: Business
(Dead). .. Respondents.
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Shri. M.M. Ambhore, Advocate, for appellant.
Shri. V.P. Latange, Advocate, for respondent Nos.1,2 & 4.
Appeal abated as against respondent No.3.
Respondent No.6 - deleted.
Respondent No.7 - dead.
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CORAM: T.V. NALAWADE, J.
DATE : 29th FEBRUARY 2016
JUDGMENT:
1) The appeal is filed by the insurance company to
challenge the judgment and award of Claim Petition
No.485/1993 which was pending before the Claims
Tribunal Ahmednagar. In respect of death of one
Babasaheb, who died in a motor vehicle accident, the
Tribunal has granted total compensation of Rs.5,58,000/-
in favour of the widow and parents and so the insurance
company challenged the decision only on the point of
quantum of compensation. Heard learned counsels for
both sides.
3 FA 375 of 2000
2) It appears that the owner of the offending
vehicle, present respondent No.7, Dinshaw Kama, is dead.
Steps were not taken to bring legal representatives of the
owner on the record. Learned counsel for the insurance
company submitted that the matter was contested only by
the insurance company before the Tribunal and the owner
and driver had remained absent. In view of these
circumstances, this Court presumes that permission must
have been given by the Tribunal under section 170 of the
Motor Vehicles Act in favour of the insurance company
and so the insurance company can be allowed to
prosecute the present matter against the original
claimants.
3) The age of the deceased was 26 years.
Evidence is given by the claimants that the deceased was
making income of Rs.2600/- per month from his service
and he was making income from agriculture which was
around Rs.25,000/- per annum. Evidence is given that the
family owns 5 acres agricultural land. At the relevant
time the age of the deceased was 26 years. One Manoj is
examined by the claimants to prove that the deceased was
4 FA 375 of 2000
working in his shop and he was paid at least Rs.2600/- per
month. He gave evidence that in addition to salary, the
deceased was given commission and in the year 1992
commission of Rs.4600/- was paid by him. One Kiran is
also examined to prove the income of the deceased and he
gave evidence that the deceased was earning at least
Rs.3600 per month. Both these claimants' witnesses were
working in the shop "M/s Walvekar Brothers". There is
nothing in rebuttal.
4) The Tribunal has considered the aforesaid
evidence. The Tribunal has also considered the prospects
of making more income in future and the Tribunal has
held that the monthly income was Rs.3500/- and Rs.1000/-
is deducted towards personal expenses and the Tribunal
held that there is monthly loss of Rs.2500/-. 18 is used as
multiplier for calculating future loss of income though 17
could have been used. However, meagre amount is
granted under the heads like loss of estate, loss of
consortium and under the head of funeral expenses. Much
more amount could have been given as compensation on
the principle of fault. This Court holds that it is not
5 FA 375 of 2000
possible to interfere in the decision on the point of
quantum of compensation.
5) Learned counsel for the appellant submitted
that the insurance company has collected information
which shows that the widow of the deceased married
second time. He also submitted that during pendency of
the appeal the father of the deceased died. Theses
circumstances cannot help the insurance company in any
way. Rights which were vested in the claimant which were
there on the date of the petition need to be considered.
6) So, the appeal stands dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
