Bombay High Court
Smt.Namrata Wd/O Ashok Laddha & 5 ... vs Dadarao Madhukar Mankar & 2 Others on 29 February, 2016
Bench: Ravi K. Deshpande
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
First Appeal No.354 of 2003
1. Smt. Namrata wd/o Ashok Laddha,
Aged about 39 years,
Occupation - Household.
2. Ku. Nayan d/o Ashok Laddha,
Aged about 15 years,
Occupation - Student.
3. Ku. Kamana d/o Ashok Laddha,
Aged about 9 years,
Occupation - Student.
4. Ku. Mahima d/o Ashok Laddha,
Aged about 7 years,
Occupation - Student.
Nos.2 to 4 all minors,
through natural guardian
mother No.1.
5. Sau. Kaushalyadevi w/o
Laxminarayan Laddha,
Aged about 64 years,
Occupation - Household.
6. Laxminarayan Hardeoji Laddha,
Aged about 68 years,
Occupation - Nil.
All resident of Gurupratap Gin Mohta
Mills Road, Akola,
Tq. Distt. Akola. ... Appellants/
Ori. Claimants
Versus
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1. Dadarao Madhukar Mankar,
Aged about 34 years,
Occupation - Driver,
R/o Chohotta Bazar,
Tq. Akot, Distt. Akola.
2. Bharat Pandurag Wasnik,
Age - Adult,
Occupation - Businessman,
R/o Siddhartha Nagar,
Tar File, Akola,
Tq. and Distt. Akola.
3. The United India Insurance
Co. Ltd.,
through its Divisional Manager,
Old Cotton Market, Rajasthan
Bhavan, First Floor, Akola,
Tq. and Distt. Akola. ... Respondents
Shri S.A. Mohta, Advocate for Appellants.
Shri A.M. Ghare, Advocate for Respondent No.1.
Shri S.N. Dhanagare, Advocate for Respondent No.3.
Coram : R.K. Deshpande, J.
Dated : 29 February, 2016
th
Oral Judgment :
1. In M.A.C.P. No.164 of 2000, the Motor Accident Claims
Tribunal, Akola, has recorded the finding that the deceased Ashok
Laxminarayan Laddha, who was the rider of Hero Honda Motor Cycle
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bearing registration No.MH-31-N/8389 was negligent to the extent of
50%, and hence the liability to pay the compensation to that extent is
saddled upon the owner and rider of the offending vehicle, i.e. Luna
bearing registration No.MH-30-G/6399, along with the respondent
No.3-United India Insurance Co. Ltd., with which Luna was insured on
the date of occurrence of the accident, i.e. 22-3-2000. The Tribunal
has worked out the dependency to Rs.3,60,000/- and has added in it,
Rs.40,000/- towards loss of compensation, and out of total
compensation arrived at Rs.4,00,000/- the respondents are held liable
to pay the compensation of Rs.2,00,000/- to the dependents of the
deceased along with interest at the rate of 9% per annum from the
date of filing of the petition, i.e. 17-6-2000, till its realization. This
award of the Tribunal passed on 7-1-2003 is the subject-matter of
challenge in this appeal by the claimants seeking enhancement of
compensation.
2. Shri Mohta, the learned counsel for the appellants/claimants,
has urged that the Tribunal has committed an error in holding that the
deceased was contributory negligent in driving the vehicle to the
extent of 50%. He submits that the Tribunal ought to have held the
rider of Luna, which is the offending vehicle, to be 100% negligent
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and should have accordingly held the claimants liable to the entire
compensation. He has relied upon the decision of the Apex Court in
the case of Neeta, w/o Kallappa Kodolkar and others v. Divisional
Manager, Maharashtra State Road Transport Corporation, Kolhapur,
reported in (2015) 3 SCC 590, and has urged that the Tribunal has
failed to award funeral expenses, and compensation towards loss of
love and affection to the children and parents, loss of estate, and loss
of consortium.
3. Shri Dhanagare, the learned counsel appearing for the
respondent No.3-United India Insurance Co. Ltd., has opposed the
claim and supported the award passed by the Tribunal. He has urged
that the Tribunal has considered the evidence available on record to
arrive at a finding that the deceased was negligent to the extent of
50%, which is based on the evidence available on record. He further
submits that the Tribunal has awarded the compensation of
Rs.40,000/- over and above the dependency worked out, and that is
enough.
4. The points for determination are as under :
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(1) Whether the Tribunal has committed an error in
holding that the deceased was contributory negligent to the
extent of 50% in driving Hero Honda Motor Cycle bearing
registration No.MH-31-N/8389?
(2) Whether the claimants are entitled to enhancement in
the total amount of compensation on account of funeral
expenses, loss of love and affection to the children and
parents, loss of estate, and loss of consortium?
5.
With the assistance of the learned counsels appearing for the
parties, I have gone through the FIR at Exhibit 29, dated 22-3-2000,
and the spot panchanama at Exhibit 30 and also gone through the
evidence of witness Lalitkumar Maniyar, examined by the claimants to
consider the question of contributory negligence on the part of the
deceased. The FIR was lodged upon receipt of telephonic information
from Lalitkumar Maniyar. Although the said witness has deposed in
his examination-in-chief that he used to supply raw material to the
deceased in the factory at MIDC and was proceeding along with the
deceased on the motor cycle in question when the accident occurred,
the police authorities have not recorded his statement during the
course of investigation. The Tribunal has held that his evidence is an
afterthought. Neither the FIR nor the spot panchanama discloses that
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the said witness Lalitkumar Maniyar was a pillion rider on the motor
cycle in question. The statement of this witness that Luna was being
driven in a most rash and negligent fashion, cannot be accepted. The
Tribunal has considered all these factors, and recorded the finding of
contributory negligence to the extent of 50%, and I do not find any
reason to hold that the it has committed an error in recording such
finding. The point No.(1) is answered accordingly.
6.
The Tribunal has arrived at total dependency at
Rs.3,60,000/-, and 50% of it would be Rs.1,80,000/-, which the rider
of Luna and the respondent No.3-Insurance Company, with which the
said vehicle was insured, would be liable to pay the compensation.
The Tribunal has not granted the funeral expenses, loss of love and
affection to the children and parents, loss of estate, and loss of
consortium, to which the claimants would be entitled. The accident
occurred in the year 2000, and hence the claimants would be entitled
to funeral expenses to the extent of Rs.10,000/-. In view of the
decision of the Apex Court in Neeta's case, cited supra, the loss of love
and affection to the children would be to the extent of Rs.1,00,000/-,
to the parents R.1,00,000/-, and loss of consortium would also be
Rs.1,00,000/-. Similarly, on account of loss of estate, there would be
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compensation of Rs.1,00,000/-, and there cannot be any deduction to
the extent of Rs.50% from such amount to be awarded under these
heads. The claimants would thus be entitled to an amount of
Rs.4,10,000/-, in addition to an amount of Rs.1,80,000/-. Thus, the
claimants would be entitled to the total amount of compensation of
Rs.5,90,000/-. The Tribunal has committed an error in ignoring these
aspects. Thus, the point No.(2) is answered accordingly.
7.
In the result, the appeal is allowed. The claimants are
entitled to the total amount of compensation of Rs.5,90,000/- along
with interest at the rate of 9% per annum from the date of filing of the
claim petition till its realization. The amount, if any, paid earlier shall
be deducted. No order as to costs.
Judge.
Lanjewar
