Bombay High Court
Trimbak Yeshwant Gore And Ors vs Dattatrya Nathu Jadhav And Ors on 2 March, 2016
Bench: T.V. Nalawade
966
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4084 OF 2008
1] Trimbak Yeshwant Gore
Age 65 years, Occ-Nil
2] Ushabai Ashok Gore
Age 33 years, Occ-Household work
3] Pravin Ashok Gore
Age 15 years, Occ-Education
4] Priyanka Ashok Gore
Age 13 years, Occ-Education
5] Pallavi Ashok Gore
Age 11 years, Occ-Education
No.3 to 5 minor, through their mother
natural guardian Appellant No.2.
All R/o Rui Chattishi, Tal. Nagar
Dist.Ahmednagar
Malanbai Trimbak Gore (deleted)
Ori.Claimant No.2, died during the
pendency of the MACT, hence, her
name has been deleted in the MACT
itself. .. APPELLANTS
::: Uploaded on - 10/03/2016 ::: Downloaded on - 31/07/2016 07:32:55 :::
966
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[ORIG.CLAIMANTS]
VERSUS
1] Dattatraya Nathu Jadhav
Age Major, Occ-Business
R/o Ozar, Tal.Junnar,Dist.Pune
2] United India Insurance Co. Ltd.
Ahmednagar Divisional Office
Market Yard, Kisan Kranti
Building, At and Post Ahmednagar
Dist.Ahmednagar. .. RESPONDENTS
[no.1 & 2 ori.opp.no.1&2]
...
Mr.S.P.Brahme, Adv. for appellants
Mr.V.D.Hon,Adv. for respondent no.1
Mr. S.V.Kulkarni, Adv. For respondent no.2.
...
CORAM : T.V.NALAWADE
DATED : 2ND MARCH,2016
ORAL JUDGMENT :-
The Appeal is filed to challenge the judgment and award of
Claim Petition No.231/2003 which was pending before Claims
Tribunal Ahmednagar. Original claimants have challenged the
decision on the point of quantum of compensation. Both sides are
heard.
2] The accident took place on 16/5/2003 within local jurisdiction of
Ahmednagar Taluka police station. Deceased Ashok was aged
about 35 years at the relevant time. The vehicle owned by
respondent Dattatraya which was insured with respondent no.2
insurance company was involved in the accident. Ashok died on the
spot in the accident.
3] The claim was made by widow aged about 28 years, 3 minor
sons and parents of the deceased. During pendency of the
proceeding mother of the deceased died and she came to be
deleted. It is the case of the claimants that by working as a clerk in
State Transport Cooperative Bank Ltd. Mumbai, Branch Ahmednagar
and by doing milk business, the deceased was earning atleast
Rs.10,000/-per month. It is contended that the deceased was getting
Rs.10,000/- per year as bonus from the employer. It is the case of
the claimants that they were totally depending for their livelihood on
the income of deceased.
4] The claim was contested by insurance company by denying
aforesaid contentions.
5] To substantiate the claim, widow gave evidence which is in
accordance with the aforesaid contentions. School leaving certificate
was produced to show that date of birth of the deceased was
23/6/1975. Copy of appointment order of the deceased in aforesaid
bank was produced. One employee of the aforesaid bank was
examined to prove the salary certificate for the month of April, 2003.
His gross salary was Rs.9678/- and from this amount the
professional tax of Rs.175/- could have been deducted as standard
deduction. They examined one employee of milk dairy to prove the
certificate given by milk dairy to the effect that per month milk worth
Rs.4000/- to 4500/- was being supplied by the deceased and the
deceased was member of cooperative milk dairy. However, no
record like register maintained by the cooperative society, the
payment received by the deceased or even the book of milk supplied
which is generally maintained by the suppliers was produced. In
respect of this case, the tribunal has presumed that deceased was
making some income from milk business.
6]
Place of employer of the deceased was Ahmednagar and his
family was living at other place like Rui-Chattisi. In view of this
circumstance and as nothing is produced on record to show that the
deceased was commuting between Rui-Chattisi and Ahmedngar
every day, it is not possible to believe that he was personally doing
milk business or personally cultivating his land. This Court holds that
income from the salary can be considered for ascertaining the loss of
dependency.
7] After making standard deductions of professional tax etc. the
salary of the deceased comes to Rs.9500/- per month. In view of the
age of the deceased, which was below 40 years, 50% increase can
be given in the salary income towards future prospects. Thus it can
be presumed that at the relevant time, monthly income of deceased
was Rs.14,250/-. From this amount 1/3rd amount can be deducted
towards personal expenses of the deceased and so the loss of
depencency per month comes to Rs.9500/-. In view of the age of the
deceased, 15 can be applied as multiplier for calculation of total loss
of dependency. This amount comes to Rs.17.10 lakh (9500x12x15).
The amount of Rs.50,000/- can be given to the widow under the head
of loss of consortium. The amount of Rs.50,000/- can be given to the
minor issues and parents of the deceased under the head of loss of
love and affection. The amount of Rs.15,000/- can be given towards
funeral expenses and the amount spent on taking the dead body to
native place. Thus the total amount of compensation comes to
Rs.18.25 lakh.
8] The tribunal has awarded the compensation of Rs.5,20,500/-.
The tribunal has not given sufficient amount under the heads of loss
of consortium, loss of love and affection etc. Further the tribunal has
held that it is the case of contributory negligence and 50% of the
amount is reduced by the tribunal.
9] The police papers and the substantive evidence show that
deceased was pillion rider on motor cycle and dash was given to the
motor cycle by one jeep. Rider of the motor cycle had given
information to police and on that basis, report was given by police
officer against jeep driver and the crime was registered against jeep
driver only. Charge sheet was filed against the jeep driver.
Babasaheb the rider of the motor cycle has given evidence before
tribunal that the accident took place due to fault of the jeep driver.
Thus there is substantive evidence against the jeep driver of eye
witness and there are aforesaid circumstances like police blamed
jeep driver for the accident. When there is direct evidence, in
ordinary circumstances, the doctrine of res-epsa-loquitor cannot be
used. Evidence is given that some construction work of the road was
going on at the relevant time and due to that there was one diversion.
Due to this circumstance, the dash between two vehicles took place
on other side of the road. Only due to this circumstance, the tribunal
has held that there was contributory negligence of the rider of motor
cycle.
10] The claim was made against the owner and insurance
company of jeep only. When it is case of composite negligence, the
victim can go against one of the two joint tortfeasors. It was not case
of contributory negligence of the deceased. The tribunal has however
held that it is case of contributory negligence. This finding of the
tribunal cannot sustain in law.
11] The learned counsel for appellants placed reliance on many
cases as under : (1) AIR 2003 SC 4182 (Municipal Corporation of
Greater Bombay V/s Shri Laxman Iyer and Anr; (2) (2008) 3 SCC
748 (T.O. Anthony V/s Karevarnan & Ors); (3) (2015) 9 SCC 273,
(4) AIR 2014 SC 1052 (Syed Sadiq V/s Divisional Manager, United
India ; (5) (2013) 9 SCC 54 Rajesh & Ors Vs. Rajbir Singh; (6) AIR
2009 SC 3104 (Sarla Verma V/s Delhi Transport Corporation; (7)
AIR 2003 SC 3696 (State of Haryana and Anr V/s Jasbir Kaur and
Ors; (8) AIR 2008 SC 845 (National Insurance Co. Ltd. V/s Indira
Srivastava and Ors.).
12] In these cases, Apex Court has discussed right of the victim to
proceed against one of the joint tortfeasors. In the case of Sarla
Verma, cited supra, the manner of ascertaining loss of dependency is
discussed by the Apex Court. The income of the deceased was
fixed, which was salary income. The multiplier which can be used for
particular age group is also mentioned in this case. All these
propositions are considered by this Court while using the multiplier,
for giving increase in the salary, loss of future prospects and also
more amount is being given now under the heads of loss of
consortium and loss of love and affection. In the result, the following
order :
13] The tribunal has given interest at the rate of 8% p.a. As
nationalised banks were giving interest at the rate of 9% p.a. in the
year 2008, this Court holds that interest at the rate of 9% p.a. needs
to be given. So the appeal is allowed. The judgment and award of the
tribunal is modified to make total amount of compensation as
Rs.18.25 lakhs. Interest at the rate of 9% p.a. is payable on the
compensation amount and the interest will be payable from the date
of the Petition till realisation of the amount. If any amount is paid on
principle of no fault it is to be deducted from total amount and
remaining amount is to be paid by respondents jointly and severally.
14]
The disbursement of the amount is to be made amongst the
claimants in the same proportion in which the tribunal has made the
disbursement.
(T.V.NALAWADE,J.)
umg/
