Bombay High Court
National Insurance Co. Ltd. Thr ... vs Mohini Santosh @ Krushna Shelar ... on 25 February, 2016
Bench: T.V. Nalawade
This Order is modified/corrected by Speaking to Minutes Order dated 03/03/2016
FA No. 2335/2015
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
FIRST APPEAL NO. 2335 OF 2015
WITH
CIVIL APPLICATION NO. 11480 OF 2015
National Insurance Company Ltd.,
Divisional Office at Hazari Chamber,
Railway Station Road, Aurangabad.
Through its Divisional Manager. ....Appellant.
(Ori. Resp. No.2)
Versus
1. Mohini Santosh @ Krushna Shelar,
Age 26 years, Occu. Household,
2. Sangram Santosh @ Krushna Shelar,
Age 10 years, Occu. Nil.,
3. Shreya Santosh @ Krushna Shelar,
Age 05 years, Occu. Nil.,
4. Vachhalabai Baban Shelar,
Age 45 years, Occu. Nil.,
Respondent No. 2 & 3 being Minor's,
through their natural Guardian
mother Res. No.1, All R/o. Ravish
Housing Society, Kinetick Chowk,
Ahmednagar, Tq. & Dist. Ahmednagar.
5. Machindra Lahanu Shinde,
Age 45 years, Occu. Business,
R/o. Nepti, Tq. Ahmednagar,
Dist. Ahmednagar. ....Respondents.
(Resp. Nos. 1 to 4 - Original
Claimants, Resp. No. 5 - Ori.
Resp. 1)
Mr. S.P. Chapalgaonkar, Advocate for appellant.
Mr. S.D. Kotkar, Advocate for respondent No. 1.
CORAM : T.V. NALAWADE, J.
DATED : 25th February, 2016.
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This Order is modified/corrected by Speaking to Minutes Order dated 03/03/2016
FA No. 2335/2015
2
JUDGMENT :
1) The appeal is filed against judgment and award of
Claim Petition No. 288/2011, which was pending before the
Claims Tribunal, Ahmednagar. The Insurance Company has
challenged the decision as it is made liable to indemnify the
owner of the vehicle. Both the sides are heard.
2)
The accident took place on 2.2.2011 at about 8.30
p.m. within local jurisdiction of Ahmednagar Tahsil Police Station.
The deceased - Santosh alias Krushna Shelar was riding his
motorcycle and as the driver of Indica car stopped the vehicle all
of A sudden, without giving any indication or signal, the motor
cycle of deceased dashed against the car. He died due to injuries
sustained by him in the accident on 8.2.2011. It is the case of
claimants that the accident took place due to fault of car driver.
3) The claim was filed by the widow, two minor issues
and mother of the deceased. It is contended that deceased was
aged about 30 years and by working as a cook in the hotel of
Amrut Raskar, he was earning monthly Rs. 10,000/-. It was
contended that all the claimants were depending on the income
of the deceased for their livelihood. Under various heads, they
had claimed compensation of Rs. 17.1 lakh.
This Order is modified/corrected by Speaking to Minutes Order dated 03/03/2016
FA No. 2335/2015
4) The Insurance Company contested the matter by
filing written statement. It contended that the accident took
place due to the fault of deceased and so, claim cannot be
allowed. Other contentions of the claimants were also denied by
the Insurance Company.
5) For proving the claim, claimant No. 1 gave evidence
and they relied on copies of police papers. Copy of F.I.R. shows
that in respect of accident dated 2.2.2011, the report was given
by brother of deceased on 7.2.2011 and the crime was
registered against the driver of Indica car. Spot panchanama was
prepared by police and but that time, only motorcycle was
present on the spot. In the inquest panchanama, it was recorded
that the death had taken place due to the injuries sustained in
the accident. The record of City Care Trust Hospital was
produced, where for about six days treatment was given to the
deceased and in that record also, it was mentioned that it was a
case of accident. During investigation, panchanama of the Indica
Car was also prepared and it shows that damage was caused to
Indica car at the backside and that portion was found pressed
inside. On the basis of this record, the driver of Indica car was
blamed for the accident. No evidence in rebuttal was given
This Order is modified/corrected by Speaking to Minutes Order dated 03/03/2016
FA No. 2335/2015
before the Tribunal. As there was nothing in rebuttal, the Tribunal
has held that the claimants have proved that the accident took
place due to fault of Indica Car driver. It is not possible to
interfere in the finding of the Tribunal on that point.
6) The claimants have examined employer of deceased,
Shri. Raskar and he has given evidence that by working as a
cook in his hotel, the deceased was earning Rs. 10,000/- per
month. The record like total minimum wages fixed for skilled and
unskilled labour was produced before the Tribunal and on that
basis, the Tribunal has presumed that monthly income of
deceased was atleast Rs. 7,000/-. The accident took place in the
year 2011 and by presuming that he was unskilled employee,
the Tribunal has made such presumption. Such rate for minimum
wages was fixed by the Government for that year. 50% increase
is given in this income as per the ratio laid down in the case
reported as (2009) 6 SCC 121 [Sarla Verma Vs. DTC]. As
there were four dependents 1/3rd amount is deducted for
personal expenses and the Tribunal has presumed that there is
loss of Rs. 7,000/- per month to the claimants. 17 is used as a
multiplier in view of the age of the deceased which was around
30 years. The Tribunal has given compensation of Rs. 50,000/-
under the head of medical expenses. The deceased was alive for
This Order is modified/corrected by Speaking to Minutes Order dated 03/03/2016
FA No. 2335/2015
about six days and he was under treatment in aforesaid hospital
and so, such amount is given. The Insurance Company has
objection in respect of that amount as no bills of treatment and
medicines were produced. Even if these objections are
considered, it can be said that, under other heads more amount
of compensation could have been given by the Tribunal. Under
the head of loss of consortium, amount of Rs. 10,000/- is given
and under the head of compensation for loss of love and
affection, amount of Rs. 10,000/- is given, amount of Rs.
10,000/- is given under the head of funeral expenses. The
amount of Rs. 1,00,000/- could have been given under the head
of loss of consortium and atleast amount of Rs. 1,00,000/- could
have been given under the head of loss of love and affection.
The interest at the rate of 7.5% is given when the interest could
have been given at the rate of 9% p.a. In view of these
circumstances, this Court holds that compensation awarded is on
lower side.
7) In the result, the appeal is dismissed. Civil
Application stands disposed of.
[ T.V. NALAWADE, J. ]
ssc/
