Bombay High Court
Bajaj Allianz General Insurance ... vs Rekha Laxmanrao Devkare And Ors on 14 July, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 108 OF 2009
WITH
CIVIL APPLICATION NO. 482 OF 2009
IN FA/108/2009
Bajaj Allianz General Insurance Co. Ltd.
Through it's Branch Manager,
2nd Floor, Adalat Road,
Aurangabad. ig ... Appellant
(Orig. Resp. No.2)
Versus
1. Rekha W/o Laxmanrao Devkare,
Age : 40 years, Occu : Household,
R/o Plot No.16, Vazirabad, Nanded
At present R/o Deolgaon Raja,
Khakpurnal Colony,
District Buldhana.
2. Laxmanrao S/o Nagorao Devkare,
Age : 52 years, Occu : Service,
R/o As above.
3. Tushar Agrawal,
Age : Major, Occu : Business,
R/o Plot No. 60, Raikar Bhavan,
Sector-17, Vashi,
Navi Mumbai-400 703. ... Respondents
(Respdt.Nos.1&2-Org. Claimants,
Respdt.No.3-Org.Respdt No.1)
.....
Advocate for the appellant : Mr. S G Chapalgaonkar
Advocate for respondent Nos. 1 and 2 : Mr. D. Y. Nandedkar
.....
WITH
FIRST APPEAL NO. 36 OF 2009
1. Rekha w/o Laxmanrao Deokar,
Age 40 years, Occu. Household,
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2. Laxmanrao s/o Nagorao Deokar,
Age 52 years, Occu. Service,
Both R/o Plot No.16, Vazirabad, Nanded,
Taluka and District Nanded. ... Appellants
(Orig. Claimants)
Versus
1. Tushar Agrawal,
Age Major, Occu. Business,
R/o Plot No. 60,
Raikar Bhavan, Sector-17,
Vashi, Navi Mumbai - 400 703.
2. Bajaj Allianz General Insurance Co. Ltd.,
2nd Floor, Rajendra Bhavan,
Near L.I.C. Building,
Adalat Road, Aurangabad - 431 001. ... Respondents
(Orig. Opponents)
.....
Advocate for the appellants : Mr. D. Y. Nandedkar
Advocate for respondent No. 2 : Mr. S G Chapalgaonkar
.....
CORAM : V. K. JADHAV, J.
DATED : 14th JULY, 2016
ORAL JUDGMENT:-
1. Heard finally with consent of learned counsel for the respective
parties.
2. Being aggrieved by the Judgment and Award dated
29.08.2008 passed by learned Ad-hoc District Judge-1, Nanded in
MACP No.660 of 2006, the claimants have preferred First Appeal
No.36 of 2009 for enhancement of compensation, whereas, the
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insurer has preferred First Appeal No. 108 of 2009.
3. Since both the appeals have arisen out of the same award,
they are heard together and decided by this common judgment.
4. Brief facts giving rise to the present appeals are as under :
a) On 15.01.2006, deceased Sushilkumar, along with his friends,
was going to Sahara City at Ambewadi to observe sunset on a Bajaj
Pulser motor bike bearing registration No. MH-12-CW-2312. At 5.30
a.m., they reached near Sahara City and parked their motor bikes by
the side of the road. They were waiting for their other friends to
arrive. At that time, one Tata Indica Car bearing registration No. MH-
43-A-4520, owned by respondent No.1 and insured with respondent
No.2, came in very high speed, in rash and negligent manner and
gave dash to deceased Sushilkumar and one Pratik. In
consequence of which, both of them suffered severe injuries.
Deceased Sushilkumar was immediately shifted in one private
hospital at Lonawala, however, he succumbed to the injuries in the
said hospital while under treatment. Deceased Sushilkumar was the
only son of the claimants. He was studying in first year Law Course
in ILS Law College at Pune. He was a meritorious student and was
also possessing number of additional qualifications. He was also
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doing part-time job on monthly salary of Rs.3,000/-. The claimants,
who are the parents of deceased Sushilkumar, preferred MACP
No.660 of 2006 before the Motor Accident Claims Tribunal, Nanded
for grant of compensation under various heads.
b) Respondent/insurer resisted the claim petition by filing written
statement Exh.16. Respondent/insurer has denied the contention
raised in respect of age, occupation and monthly salary of deceased
Sushilkumar. It is also denied that the accident has occurred
because of rash and negligent driving of the said motor vehicle Indica
car. It is also contended that the driver of said motor vehicle India
car was not holding valid and effective driving license at the time of
accident, and therefore, there has been breach of policy conditions
on the part of respondent/driver. It is also contended that the claim is
highly excessive and exorbitant.
c) Respondent No.1 had not appeared before the Tribunal and
therefore, the claim petition was ordered to proceed ex-parte against
him.
d) Learned Member of the Tribunal, after considering the oral and
documentary evidence on record, partly allowed the claim petition
with proportionate costs and thereby directed the respondents to
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jointly and severally pay Rs.4,99,500/- to the claimants towards
compensation under Section 166 of the Motor Vehicles Act, with
interest at the rate of 9% per annum from the date of filing of the
claim petition till its complete realization. Being aggrieved by the
same, as aforesaid, the claimants as well as the insurer have
preferred these two separate appeals.
5. Learned counsel for the original claimants submits that the
Tribunal has not considered the income of deceased Sushilkumar.
Learned Member of the Tribunal has also not considered the future
prospects of deceased Sushilkumar. Learned Member of the
Tribunal has, therefore, failed to make an addition to the income of
deceased Sushilkumar by considering his future prospects. The
Tribunal has awarded very meager amount under the non-pecuniary
heads.
6. Learned counsel for the respondent/insurer submits that even
though deceased Sushilkumar was a non-earning member, the
Tribunal has considered his notional income as Rs.4,000/-.
Furthermore, the Tribunal has committed error in deducting 1/3rd
amount of his income towards personal expenses instead of 1/2
since deceased Sushilkumar was a bachelor at the time of accident.
There is no question of considering future prospects since deceased
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was not earning anything and he had appeared for the first year of
LL.B. course only. The Tribunal has awarded excessive amount and
therefore, recalculation of compensation is required to be done.
7. On perusal of the record and proceedings, it appears that
deceased Sushilkumar had appeared for the first year of New Five
Year Law Course (Semester Pattern) from ILS Law College, Pune,
University of Pune. He had a Diploma in MS-Office and had also
passed Elementary Grade Drawing Examination. He was also
declared to be the best Scout Student. Furthermore, he had also
passed I.T. Stars Scholarship Examination in the year 2004. In
addition to this, there are various sports certificates placed on record.
All the said certificates are marked at Exh.37 to Exh.50 respectively.
Deceased Sushilkumar was the only son of the claimants. He was
also doing part-time service at Pune on monthly salary of Rs.3,000/-.
He had secured first class in the Secondary Certificate Examination.
In light of the above, the Tribunal ought to have added amount to the
income of deceased Sushilkumar by considering future prospects.
Furthermore, it also appears that the Tribunal has committed error in
deducting 1/3rd amount towards personal expenses of deceased
Sushilkumar instead of deducting ½ of the amount as he was a
bachelor at the time of his accidental death. Learned Member of the
Tribunal has further erroneously applied multiplier 15 instead of 18 as
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deceased Sushilkumar was 19 years old at the time of his accidental
death. It further appears that the Tribunal has awarded meager
amount under the non-pecuniary heads as well. In view of the
above, recalculation of compensation is required to be done.
8. Thus, considering the income of deceased Sushilkumar and by
addition in his income towards future prospects, it would be just and
reasonable to consider the loss of future income to the tune of
Rs.5,000/- per month, corresponding to Rs.60,000/- per annum. Out
of the said amount of Rs.60,000/-, after deduction of 1/2 amount
towards personal expenses and after applying multiplier 18, the loss
of future income comes to the tune of Rs.5,40,000/-. In addition to
this, the claimants are also entitled for an amount of Rs.50,000/- for
loss of love and affection instead of Rs.15,000/- as awarded by the
Tribunal. Further, the claimants are also entitled for an amount of
Rs.10,000/- towards funeral expenses.
9. Thus, the break up of compensation under various heads,
which can be broadly categorized as under :
1. Loss of future income Rs.5,40,000=00
2. Loss of love and affection Rs.0,50,000=00
3. Funeral expenses Rs.0,10,000=00
4. Loss of estate (as awarded Rs.0,02,500=00
by the Tribunal)
------------------------------
Total Rs.6,02,500=00
------------------------------
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The claimants are thus, entitled for compensation of
Rs.6,02,500/-. Hence I proceed to pass the following order:
ORDER
I. First Appeal No. 108 of 2009 (Bajaj Allianze General
Insurance Co. Ltd. v/s Rekha w/o Laxmanrao Devkare and
others) and First Appeal No. 36 of 2009 (Rekha Laxmanrao
Devkare and another v/s Tushar Agrawal and another) are
hereby partly allowed.
II. The judgment and award dated 29.08.2008 passed by the
Adhoc District Judge-1, Nanded in MACP No. 660 of 2006
is hereby modified in the following manner:
"Respondent Nos. 1 and 2 shall jointly and severally pay
Rs.6,02,500/- to the petitioners towards compensation
under Section 166 of the Motor Vehicles Act, inclusive of
NFL amount already paid, with interest at the rate of 9%
per annum, from the date of filing of the petition till
realization of the entire amount."
III. Rest of the Judgment and Award dated 29.08.2008 passed
by the Adhoc District Judge-1, Nanded in MACP No. 660 of
2006 stands confirmed.
IV. Parties to bear their own costs.
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V. Award be drawn up in tune with the modification as
aforesaid.
VI. Both the First Appeals are accordingly disposed of.
VII. In view of disposal of First Appeals, nothing survives in
pending Civil Application No. 482 of 2009 and the same
also stands disposed of.
ig ( V. K. JADHAV, J.)
vre/
