Bombay High Court
Nagarbai Vithal Gofane & Ors vs Babu Kisan Gangurde & Ors on 3 March, 2016
Bench: T.V. Nalawade
1 FA 1825/2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.1825 of 2010
With
Civil Application No.1697 of 2016
1) Nagarbai w/o Vithal Gofane,
Age 25 years,
Occupation: Household,
R/o Jeur, Taluka Karmala,
District Solapur.
2) Samadhan S/o Vithal Gofane,
Age 24 years,
Occupation: Nil,
R/o As above.
3) Sagar s/o Vithal Gofane,
Age 25 years,
Occupation: Nil,
R/o As above.
4) Prayagbai W/o Rajaram Gofane
(Died on 23-7-2003). .. Appellants.
Versus
1) Babu S/o Kisan Gangurde,
Age Major, Occu: Driver,
R/o Bhavani Nagar,
Gulbarga (Karnataka State)
(Appeal is dismissed as against
respondent No.1 vide Court
order dated 13-1-2010)
2) Subhash S/o. Virasngappa Bhimnale,
Age Major,
Occupation : Business,
R/o Dongargaon,
Taluka Gulbarga (K.S.).
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2 FA 1825/2010
3) National Insurance Co. Ltd.
Javali Complex,
Super market, Gulbarga,
Through its Divisional
Manager, Shubhray Towers,
Datta Chowk, Solapur. .. Respondents.
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Shri. V.C. Solshe, Advocate, for appellants.
Appeal is dismissed as against respondent No.1.
Shri. Sagar S. Phatale, Advocate, for respondent No.2.
Shri. P.P. Bhafna, Advocate, for respondent No.3.
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CORAM: T.V. NALAWADE, J.
DATE : 3rd MARCH 2016
JUDGMENT:
1) The appeal is filed by the original claimants to
challenge the quantum of compensation awarded to them
in Claim Petition No.82/1998 which was pending before
the Claims Tribunal Osmanabad. Civil Application
No.1697/2016 is filed by the original claimants, who were
minor to show them as major and to allow them to
prosecute the matter as major persons. This Civil
Application is allowed. Necessary amendment is to be
made in the appeal memo. Both the sides are heard.
3 FA 1825/2010
2) Claim was filed under section 166 of the Motor
Vehicles Act in respect of death of one Vithal. Original
claimants are widow, two issues and mother of the
deceased. After decision of the Claim Petition, the mother
died and so the present matter is prosecuted by the two
sons and the widow of the deceased.
3)
It is the case of the claimants that deceased
Vithal was working as mechanic in one garage and he was
making income also by cultivating his land. It is their case
that the monthly income of the deceased was Rs.2500/-.
Compensation of Rs. 5 lakh was claimed. The claim was
contested by the insurance company.
4) To substantiate the claim, widow gave evidence
which is as per the aforesaid contentions. For proving the
age of the deceased she placed reliance on death
certificate which shows that age of the deceased was 30
years. The claimants examined one Vilas Dengle, owner of
one garage, workshop, and he has given evidence that he
was giving Rs.2500/- per month to the deceased and the
deceased was working as mechanic with him. No record
4 FA 1825/2010
whatsoever is produced by the employer or the claimant
in respect of this employment.
5) The accident took place in the year 1996 but
the Tribunal presumed that annual income of the
deceased was Rs.15,000/-. From this, 1/3rd amount is
deducted by the Tribunal and the compensation is
calculated which is Rs.1,55,000/-. Meagre amount is given
under the head of loss of consortium and amount spent on
funeral expenses.
6) At least four persons were dependent for
livelihood on the income of the deceased. In the year 1994
under the schedule provided for use of section 163A of the
Motor Vehicle Act notional income was given as
Rs.15,000/- per annum. Four years after fixing this
notional income, the accident took place. In view of the
facts of the present case and the period which had expired
after fixing of the notional income, this Court holds that it
needs to be presumed that income was at least Rs.2,000/-
per month. In view of the size of the family only 1/5th
amount could have been deducted towards personal
5 FA 1825/2010
expenses. Thus, there is monthly loss of Rs.1500/- to the
claimants. In view of the age mentioned in the certificate
of death, which was between 30 and 35 years, 16 can be
used as multiplier for calculation of total loss of
dependency. Amount of loss of dependency come to
Rs.2,88,000/- (Rs.1500×12x16). This Court holds that
amount of Rs.25,000/- needs to be given to the widow
under the head of loss of consortium. Amount of Rs.5,000/-
needs to be given under the head of amount spent for
funeral expenses. Thus, total amount of compensation
comes to Rs.3,18,000/-.
7) The learned counsel for the insurance company
submitted that in the year 1996 under the Minimum
Wages Act, 1949, minimum wages were given and for
unskilled worker of village, in Zone IV minimum wages
were given as Rs.1100/- per month. He submitted that on
that basis the income needs to be presumed. Reliance
was placed on a case reported as 2010 AIR SCW 5601
(Leela Gupta v. State of Uttar Pradesh) and it was
submitted that the multiplicand cannot be changed after
so many years. On the other hand, learned counsel for the
6 FA 1825/2010
original claimants placed reliance on a case reported as
2016 (1) ALL MR 818 (Nitadevi v. National Insurance
Company Ltd.). It is true that in the 1998 Courts were not
considering future prospects and the claims as on the
date of the accident on the basis of actual income of the
deceased were considered. In the present matter also
this Court holds that aforesaid notional income can be
considered and the multiplier needs to be adopted as per
the case of (2009) 6 SCC 121 (Sarla Verma v. Delhi
Transport Corporation). The Minimum Wages Act cannot
be used in the case like present one if there is evidence to
show that deceased was getting more income. In view of
these circumstances this Court holds that compensation
amount needs to be enhanced.
8) In the result, following order is made :-
9) The appeal is allowed. The judgment and award
of the Tribunal is modified to make total amount of
compensation as Rs.3,18,000/- (Rupees Three Lakh &
Eighteen Thousand Only). Interest at the rate of 9% per
annum is payable on the amount from the date of petition
7 FA 1825/2010
till the date of realization. If any amount is already paid
under the principle of no fault, it is to be deducted and the
interest is to be given on the remaining amount.
10) The amount of compensation is to be
distributed amongst the three claimants like widow and
two issues as follows. 50% amount is to be given to the
widow by account payee cheque and the remaining 50%
amount is to be equally distributed between the two
issues.
11) Civil Application is allowed and amendment is
to be carried out in the appeal to show the minors as
major.
Sd/-
(T.V. NALAWADE, J. )
rsl
