Bombay High Court
Rohit Narhari Mundhe & Ors vs Ranjana Daulat Kodre & Ors on 6 June, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 190 OF 2006
WITH
CIVIL APPLICATION NO. 5439 OF 2016
1) Shri Rohit s/o Narhari Mundhe,
Age : 20 years, Occu : Education,
R/o. Pimpaldari, Tq. Gangakhed,
District Parbhani.
2) Shri Keshav s/o Dinkar Mundhe,
Age : Major, Occu : Service,
R/o. Sham Nagar, Latur,
District Latur. ... Appellants
(Orig. Opponents)
Versus
1) Ranjana w/o Daulat Kodre,
Age : 32 years, Occu : Household,
2) Sheetal d/o Daulat Kodre,
Age : 12 years, Occu : Education,
3) Shivganga D/o Daulat Kodre,
Age : 8 years, Occu : Education,
4) Shrinivas s/o Daulat Kodre,
Age : 6 years, Occu : Education,
5) Chakuli D/o Daulat Kodre,
Age 4 years,
Respondent No. 2 to 5 are minors,
U/G of their real mother - Respondent
No. 1
6) Rukminibai W/o Nivrati Kodre,
Age : 70 years, Occu : Household,
All R/o Tandulwadi, Tq. and District Latur.
7) Kamlakar s/o Tukaram Kodre,
Age : 30 years, Occu : Service,
R/o. C/o Police Quarters, Nanded Road,
Latur.
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8) National Insurance Co. Ltd.,
Through its Branch Manager,
Opp. Bust Stand, Main Road, Latur. ... Respondents
.....
Advocates for the appellants : Mr. V. D. Sapkal with Mr. V. B. Jagtap
Advocate for respondent Nos. 1 to 6 : Mr. V. H. Solanke
Advocate for respondent No. 8 : Mr. A.B. Gatne
.....
CORAM : V. K. JADHAV, J.
DATED : 6th JUNE, 2016
ORAL JUDGMENT:-
1.
Being aggrieved by the judgment and award passed by
learned Member, M.A.C.T. Latur dated 8.12.2005 in M.A.C.P. No.
146 of 2003, the original opponent Nos. 1 and 2 preferred this
appeal.
2. Brief facts giving rise to the present appeal are as under:-
a) On 25.2.2003, deceased Daulat was proceedings
towards his land alongwith original opponent No.3-Kamlakar on
motor cycle bearing registration No. MH-24-H-386 owned by
original opponent No.3. Deceased Daulat was the pillion rider
on said motor cycle. Original opponent No.3-Kamlakar was
riding the motor cycle by correct left side of the road. On way,
near Tandulwadi Pati, another motor cycle bearing registration
No. MH-24-B-9477 owned by the appellant/original opponent
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No.1 came from back side in high speed and gave dash to the
motor cycle on which deceased Daulat was the pillion rider. In
consequence of which, deceased Daulat fell down on the
ground and sustained grievous injuries on his person and he
died on the spot. The claimants/legal representatives of
deceased Daulat preferred claim petition before the M.A.C.T.,
Latur for grant of compensation under various heads against
both the motor cycle owners and the insurer of one of the
motor cycle involved in the accident.
b) According to the claimants, deceased Daulat was
earning Rs.4000/- p.m. from agricultural land, milk business
and also cultivating the land of others on batai basis. The
appellant/original opponent No.1 strongly resisted the claim by
filing written statement. He denied that the accident has
occurred on account of his negligence. It is contended that at
the time of accident, original opponent No.3 was driving the
motor cycle ahead of his motor cycle and he suddenly applied
brakes without giving any signal and took the vehicle towards
right side of the road, and therefore, accident had occurred. It
is contended that the accident had taken place on account of
negligence on the part of original opponent No.3 alone.
Original opponent No.2 also resisted the claim petition by filing
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written statement. It is contended that accident had not taken
place on account of negligence of opponent No.1. It is further
contended that one Narhari Darode was the owner of motor
cycle bearing registration No. MH-24-B-9477 at the time of
accident and he had sold the said motor cycle to Narhari prior
to the accident. It is therefore, contended that he is not liable
to pay compensation to the claimants. Original opponent No.3-
Kamlakar remained absent, though duly sered, and therefore,
hearing of the petition ordered to be proceeded ex-parte
against him. Opponent No.4-Insurer resisted the claim by filing
written statement. It is contended that opponent No.3 has
committed breach of terms and conditions of policy and
therefore, the insurer is not liable to pay compensation. The
claimants as well as the respondents adduced their evidence in
support of their rival contentions.
c) Learned Member of M.A.C.T., Latur, by its impugned
judgment and order dated 8.12.2005, partly allowed the petition
with costs and thereby directed the appellant/original opponent
No.1 to pay compensation of Rs.5,25,000/- inclusive of award
passed under N.F.L. to the claimants with interest. Hence, this
appeal.
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3. Learned counsel for the appellants submits that original
opponent No.3-Kamlakar was riding the motor cycle ahead of motor
cycle of appellant No.1. All of a sudden, original opponent No.3-
Kamlakar applied brakes to the motor cycle without giving any signal
and further took his motor cycle towards right side of the road.
Because of rash and negligent act of original opponent No.3-
Kamlakar alone, the accident had taken place. Learned counsel in
the alternate submits that original opponent No.3-Kamlakar has
contributed negligence to the extent of 50% and thus, he is liable to
pay compensation to that extent. The Tribunal has already recorded
finding that original opponent No.4-insurer has failed to prove breach
of terms and conditions of policy, and in view of the same, opponent
No.3 and 4 also jointly and severally liable to pay the compensation
to the extent of 50% to the claimants. There is no basic foundation to
consider the income of deceased Daulat to the tune of Rs.4000/-
p.m. Furthermore, the Tribunal has applied multiplier 16. Deceased
Daulat was more than 38 years of age at the time of accidental
death, the appropriate multiplier would be 12 instead of 16 as applied
by the Tribunal.
4. Learned counsel for the respondents/original claimants
submits that Tribunal has rightly considered negligence on the part of
the appellant/original opponent No.1 alone. A dash was given from
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back side of motor cycle being driven by original opponent No.3-
Kamlakar and that itself is sufficient to draw inference that the
appellant/original opponent No.1 alone is responsible for the
accident. Deceased Daulat was personally cultivating agriculture
land and the same is evident from 7x12 extract produced on record.
Furthermore, deceased Daulat was also selling milk in addition to his
agricultural occupation. The claimants have produced Exh. 45 to 51
regarding purchase and sale of she-buffaloes by deceased Daulat
during his life time. Furthermore, deceased Daulat was also
cultivating lands of others on batai basis. Original opponent No.3-
Kamlakar has executed one Batai patra in his favour and the same is
produced on record, duly proved by the claimants, which is marked
at Exh.65. The Tribunal has considered the income from all these
sources and accordingly, held that deceased Daulat was earning
Rs.4000/- p.m. and the same is just and reasonable. The relevant
multiplier is 15 instead of 16. The counsel has conceded that the
Tribunal has committed error in applying multiplier 16 instead of 15.
Except application of incorrect multiplier, learned counsel submits
that there is no reason to interfere in the impugned judgment and
award passed by the Tribunal.
5. I have also heard learned counsel for the respondent-insurer.
Learned counsel submits that original opponent No.3-Kamlakar was
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held to be not responsible for the accident in any manner and
therefore, the Tribunal has rightly dismissed the claim against original
opponent No.3-Kamlakar as well as respondent-insurer.
6. Deceased Daulat was the pillion rider and original opponent
No.3-Kamlakar was riding the motor cycle bearing registration No.
MH-24-H-386 at the time of accident. On way, within the limits of
village Tandulwadi, one Hero Honda Motor cycle bearing registration
No. MH-24-B-9477 came from back side in high speed. The motor
cycle being driven by the appellant/original opponent No.1 gave dash
to the motor cycle driven by opponent No.3-Kamlakar from its back
side. According to the learned counsel for the appellant, original
opponent No.3-Kamlakar suddenly applied brake and also took his
vehicle towards right side of road and therefore, accident had
occurred.
7. In the light of these submissions, I have perused the contents
of spot panchnama Exh.42 minutely and the map drawn on it. It
appears from the map drawn on the spot panchnama that the tar
road is having width of 18.5 feet and there are mud pan of 5 ft in
width on both sides of the road. It further appears from the map
drawn on the spot panchnama that vehicle being driven by opponent
No.3-Kamlakar is at the left side of the tar road and as observed by
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the Tribunal, ample space was left towards right side of the said
motor cycle. In view of the same, there was no reason for the
appellant/original opponent No.1 to give dash to the back side of the
motor cycle which was ahead of his motor cycle on tar road.
8. During the course of arguments, learned counsel for the
appellants submits that original opponent No.3-Kamlakar was police
constable and he has manipulated the contents of spot panchnama,
however, it appears from the record that the appellant/original
opponent No.1 has not pleaded to that effect and even the appellant
opponent No.1 has not deposed about the same before the Tribunal.
It is clear that dash is given from back side and that itself is sufficient
to draw an inference that the appellant/opponent No.1 alone was
responsible for the accident. Furthermore, the motor cycle owned
and driven by original opponent No.3 sustained damages on the
back side of the motor cycle and particularly on the side where
dickey is attached. This fact itself indicates that the appellant-
opponent No.1 had driven his motor cycle in such a speed that he
could not control it and gave dash to the motor cycle which was
proceeding ahead of his motor cycle. The Tribunal has rightly arrived
at the said conclusion and accordingly recorded the finding in
affirmative on issue No.1 that deceased Daulat met with an
accidental death due to rash and negligent act of driving of motor
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cycle bearing No. MH-24-B-9477 by opponent No.1.
9. In the given set of facts and the evidence adduced by the
parties to the claim petition in support of their rival contentions,
learned Member of the Tribunal has rather recorded a finding on
issue No.2 in negative and thereby held that opponent No.1 i.e. the
appellant failed to prove that the accident occurred due to rash and
negligent driving of motor cycle owned by opponent No.3.
Considering the oral evidence adduced by the parties in support of
their rival contentions and the contents of spot panchnama, it is not
possible even to draw inference that opponent No.3 is also
responsible for the accident to the extent of 50%, as argued by
learned counsel for the appellants.
10. Learned Member of the Tribunal has considered the income of
deceased Daulat from all sources. Deceased Daulat was personally
cultivating his agricultural land. Even though it is considered that the
corpus of the land remained as it is, there cannot be total loss in the
agriculture income, as such the loss towards supervisory charges are
required to be considered on account of untimely accidental death of
deceased Daulat.
11. Furthermore, the claimants have also produced on record the
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documents at Exh. 45 to 51 for purchase and sale of she-buffaloes
by deceased Daulat during his life time. This supports the contention
of the claimants that deceased Daulat was also doing milk business.
Deceased Daulat was also cultivating the lands of others on batai
basis. Original opponent No.3-Kamlakar executed one Batai patra in
favour of deceased Daulat and the same is produced on record and
marked at Exh.65. Even it has come in the pleadings of claimants
and even in the police papers that at the time of accident, deceased
Daulat was pillion rider on the motor cycle of opponent No.3-
Kamlakar and he was proceeding towards agriculture land. Learned
Member of the Tribunal has considered the income of deceased
Daulat from all the aforesaid sources and correctly held that
deceased Daulat was earning Rs.4,000/- p.m. I do not find any error.
It appears that the Tribunal has however, committed error in applying
multiplier 16 instead of 15. I do not find any reason in applying
multiplier 12 as argued by learned counsel for the appellants. In view
of this, recalculation of the compensation amount is required to be
done to that extent only.
12. In view of the above discussion, the break up of compensation,
which can be broadly categorized under various heads is as follows:-
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I) Loss of dependency/
future income Rs.4,80,000.00
(Rs.32,000X15)
II) Loss of love and affection Rs. 5,000.00
III) Loss of consortium to Rs. 5,000.00
claimant No.1
IV) For funeral expenses Rs. 3000.00
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Rs.4,93,000.00
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Thus the claimants are entitled for compensation of
Rs.4,93,000.00 (Rupees four lacs ninety three thousand only)
13. In view of the above, I proceed to pass the following order:-
ORDER
I. The appeal is hereby partly allowed.
II. The impugned judgment and award dated 8.12.2005
passed by the Ex-officio Member, M.A.C.T. Latur, in
M.A.C.P. No. 146 of 2003, is hereby modified in the
following manner:-
"The opponent No. 1 Rohit Narhari Mundhe do pay the
compensation of Rs.4,93,000/- (Rupees Four lacs ninety
three thousand only) inclusive of N.F.L. Award, to the
claimants with interest @ 7.5% per annum from the date
of petition till its realization".
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III. Rest of the judgment and award stands confirmed.
IV. Award be drawn up in tune with the modification, as
aforesaid.
V. Appeal is accordingly disposed of.
VI. The amount deposited by the appellant original opponent
No.1 before this Court shall be paid to the claimants.
VII.
In view of disposal of appeal, pending civil application
No. 5439 of 2016 is also disposed of.
( V. K. JADHAV, J.)
rlj/
