Bombay High Court
Yuvraj Hiralal Patil And Others vs Paratbhai Bhimabhai Godhaniya ... on 16 June, 2016
Bench: V.K. Jadhav
1 FA 600.2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 600 OF 2016
1. Shri Yuvraj Hiralal Patil
age 40 yrs, Occ. Nil,
2. Shri Yogesh Hiralal Patil,
age 39 yrs, Occ. Nil.
3. Shri Narendra Hiralal Patil,
age 37 yrs, Occ. Nil.
4. Sau. Urmila Shyam Patil,
age 38 yrs, Occ. Nil,
R/o Aurangpura, Tq. Shahada,
Dist. Nandurbar. ...Appellants...
(orig claimants)
VERSUS
1. Paratbhai Bhimabhai Godhaniya,
age major, Occ. Truck owner,
R/o Khambhor, Tq. Porbandar,
Dist. Porbandar, Pin 360575.
Gujarat.
2. TATA AIG General Insurance Co. Ltd.,
202/A, The orion, 2nd Floor,
Koregaon Park Road, Pune. ..Respondents..
(orig respondents.)
...
Advocate for Appellants : Mr Shrikant S Patil
Advocate for Respondents : Mr. S.S. Patil
...
CORAM : V.K. JADHAV, J.
Dated: June 16, 2016
...
ORAL JUDGMENT :-
1. Heard finally, with the consent of the parties.
2 FA 600.2016.odt
2. Being aggrieved by the Judgment and Award dated
21.11.2014 passed by the learned Additional Member,
Motor Accident Claims Tribunal, Shahada in M.A.C.P.
No.70/2011, the original claimants preferred this appeal
to the extent of quantum.
3. Brief facts, giving rise, to the present appeal are as
under :-
a]
On 29.10.2010 at about 4.00 p.m. deceased Hiralal
was proceeding from Sulwada to Surat alongwith his
wife by driving his Indigo Car bearing registration
No.MH-39-D-2349. Truck owned by respondent No.1
bearing registration No.GJ-25-T-6023 was coming from
opposite direction. The driver of the truck was driving it
in excessive speed and in rash and negligent manner.
Thus, said truck gave dash to the indigo car from the
front side within the limits of village Virpur. In
consequence of which, deceased Hiralal had sustained
multiple injuries and died on the spot. Claimants
preferred claim petition before the Motor Accident
Claims Tribunal, Shahada for grant of compensation
under various heads. It has contended that, deceased
3 FA 600.2016.odt
Hiralal was healthy, hard worker agriculturist. He was
cultivating agricultural land personally. He was also
doing milk business. He was having a tractor and other
agricultural equipments. His total annual income from
all sources was about Rs.6.00 lacs. According to the
claimants, respondents No.1 and 2 are responsible to
pay compensation of Rs.20.00 lacs.
b] Though, respondent no.1 was duly served, failed to
appear before the Tribunal and therefore, claim petition
ordered to proceed ex-parte against him. Respondent
No.2 insurer has strongly resisted the claim by filing
written statement at Exh.11. Respondent Insurer has
denied the income of deceased, cause of action and
liability to pay the compensation. It is also contended
that, the driver of the truck was not having valid and
effective driving licence at the time of accident and said
truck was piled without permit and fitness. It is
therefore contended that there is breach of terms and
conditions of the policy. It has also denied that, the
driver of the truck was responsible for the accident. It
has also contended that, owner, driver and insurer of
4 FA 600.2016.odt
the vehicle Indigo Car involved in the accident are not
added as party to the petition and, therefore, the
petition is bad for non-joinder of necessary parties.
Respondents also raised a plea of contributory
negligence on the part of deceased Hiralal. Learned
Member of the Tribunal after considering rival pleadings
of the parties to the claim petition and evidence on
record partly allowed the claim petition with
proportionate costs and thereby directed the
respondents to pay jointly and/or severally the
compensation of Rs.4,47,000/- inclusive of the amount
under 'No Fault Liability' alongwith interest from the
date of institution of the petition till realization of the
entire amount. Being aggrieved by the quantum of
compensation, the original claimants have preferred this
appeal.
4. Learned counsel for the appellant submits that,
the Tribunal has not considered income of deceased
Hiralal. Learned counsel submits that, deceased Hiralal
was personally cultivating his agricultural land and he
used to give agricultural equipments on rent to other
5 FA 600.2016.odt
agriculturists of that area. Deceased Hiralal was giving
tractor and trailer on hire basis. He used to plough and
sow the lands of other agriculturist and was getting
daily income from the agriculturist. After his death,
said business has been stopped. Learned counsel
submits that, the Tribunal has only considered loss of
skilled management and guidance of deceased regarding
cultivation of the land and management of the business.
Learned counsel further submits that, the Tribunal has
awarded very meager amount under the non-pecuniary
heads, such as, loss of estate, funeral expenses and
further Tribunal has not awarded compensation for loss
of love and affection.
5. Learned counsel for respondent no.2-Insurer
submits that, the Tribunal has rightly considered that
there is no loss of future income as such and, the
appellants-claimants being major sons have lost skill of
management and guidance of deceased Hiralal regarding
cultivation of land and management of business.
Learned counsel submits that, even after death of
deceased Hiralal, corpus of the land remained as it is,
6 FA 600.2016.odt
and, so also the agricultural equipments. Further,
claimant no.1 has admitted in his cross-examination
that, after death of his father, he alongwith his other
brothers cultivating the agricultural land and further
also carrying the business of giving agricultural
equipments on rent to agriculturists. Learned counsel
submits that, in the backdrop of these admissions, the
Tribunal has rightly considered loss of supervisory
charges though on hire side. Learned counsel submits
that the Tribunal has rightly awarded just and
reasonable compensation considering the facts and
circumstances of the case. Learned counsel submits
that, no interference is required. There is no substance
in the appeal and the appeal is thus liable to be
dismissed with costs.
6. The owner and respondent No.2-insurer have not
preferred any appeal nor they filed any cross objection
to the findings recorded by the Tribunal. It is thus clear
that the claimants have succeeded in proving that
accident had taken place on 29.10.2010 on account of
negligence of the driver of the truck bearing registration
7 FA 600.2016.odt
No.GJ-25/T-6023 and deceased Hiralal died on account
of the injuries sustained by him in the said accident.
Further, the Tribunal has also recorded findings that
respondent no.2 insurer has failed to prove breach of
the policy conditions on the part of respondent no.2-
insurer of the truck. In view of this, present appeal is
restricted to the extent of quantum alone.
7.
According to the claimants, deceased Hiralal was
earning from his agricultural land, from the business of
giving agricultural equipments on hire and from the
milk business. So far as earnings of deceased Hiralal
from milk business is concerned, admittedly, there is no
evidence to that effect. Learned Member of the Tribunal
has, therefore, rightly discarded the same. So far as
agricultural income and income from the said business
is concerned, even after death of deceased Hiralal,
corpus of the land and said agricultural equipments
remained as it is. Even claimant no.1 has also admitted
in his cross examination that, after death of his father,
he started cultivating the land personally owned and
possessed by deceased father Hiralal with the help of his
8 FA 600.2016.odt
other brothers. He has further admitted in his cross
examination that, even the claimants are giving said
agricultural equipments on hire basis to the
agriculturists as it was prior to the accidental death of
their father. In view of the above, there is no total loss
of future income as such. Learned Member of the
Tribunal has rightly observed that the claimants have
lost skilled management and guidance of deceased
regarding cultivation of land and carrying out business
of agricultural implements. I do not find any fault in the
impugned judgment and award to the extent that
Tribunal has considered loss of future income in the
form of supervisory charges to the extent of Rs.6,000/-
p.m. However, it appears that the Tribunal has awarded
meager amount of compensation under the non
pecuniary heads, such as, loss of estate, funeral
expenses etc. It further appears that the Tribunal has
not awarded the compensation under the head of loss of
love and affection. The learned Member of the Tribunal
has awarded only Rs.5,000/- for loss of estate.
Considering the management skill and other activities
being carried out by deceased Hiralal during his
9 FA 600.2016.odt
lifetime, it would be just and appropriate to award
Rs.20,000/- for loss of estate instead of Rs.5,000/-.
Furthermore, deceased Hiralal met with an accidental
death on Sulwada to Surat road. After accident he was
taken to PHC Chapawadi by private vehicle where
Medical Officer declared him dead on arrival. After
postmortem, dead body of Hiralal was handed over to
the claimants and thereafter it was brought to his
native. It is obvious that, the claimants incurred
expenses for transportation of the dead body as well as
funeral. The claimants have claimed Rs.30,000/- on
account of the same. I am inclined to award the same.
So far as loss of love and affection is concerned, the
appellants-claimants are major sons and daughter.
Considering their age, it would be just and appropriate
to award Rs.5,000/- each for loss of love and affection.
So, in view of the above, re-calculation of the
compensation to that extent is required to be done.
8. Thus, break up of compensation under the various
heads, which can be broadly categorized, is as under :-
10 FA 600.2016.odt
( * amount awarded by the Tribunal)
Loss of future income/dependency Rs.4,32,000/- (*)
Loss of Estate. Rs.0,20,000/-
Funeral expenses Rs.0,30,000/-
Loss of love and affection Rs.0,20,000/-
(Rs.5,000/- each x 4) ===========
Rs.5,02,000/-
9. In view of the above findings and observations, the
claimants are entitled for the compensation of
Rs.5,02,000/- with interest as awarded by the Tribunal.
Hence, I proceed to pass the following order.
O R D E R
I. Appeal is hereby partly allowed with
proportionate costs.
II. The Judgment and Award passed by the
Additional Member, Motor Accident Claims
Tribunal, Shahada dated 21.11.2014 in
MACP No.70/2011, is hereby modified in
the following manner :-
"Respondents No.1 and 2 are hereby
directed to pay jointly and severally the
compensation of Rs.5,02,000/- (Rs. Five
lacs two thousand only) inclusive of 'No
Fault Liability' amount received by them
11 FA 600.2016.odt
under Section 140 of the Motor Vehicles
Act to the claimants along with interest at
the rate of 9% p.a. from the date of
institution of the petition i.e. from
12.5.2011 till realization of entire amount.
III. Rest of the Judgment and Award passed by
the Tribunal stands confirmed.
IV. Award be drawn up in tune with the
modifications, as aforesaid.
V. Appeal is accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
...
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