Bombay High Court
Mrs Shantabai Balchand Chavan & ... vs Taherkhan Tejkhan(Deleted) & Ors on 17 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 884 OF 2005
WITH CA/7205/2005 IN FA/884/2005
1. Shantabai w/o Balchand Chavan,
Age 40 years, Occupation Nil,
R/o. Verul Tanda, Taluka Khultabad,
District Aurangabad.
2. Ramesh s/o Balchand Chavan,
Age 22 years, Occupation Student,
R/o. as above.
3. Vikram s/o Balchand Chavan,
Age 18 years, Occupation Student,
R/o. as above.
4. Baby d/o Balchand Chavan,
Age 20 years, Occupation Student,
R/o. as above.
5. Bakaji s/o Raosaheb Chavan,
Age 68 years, Occupation Nil,
R/o. as above.
6. Godibai w/o Bakaji Chavan,
Age 66 years, Occupation Nil,
R/o. as above. ... Appellants
(orig. Claimants)
Versus
1. Taherkhan s/o Tejkhan (deleted)
2. Sunita Panditrao Sonawane,
Age 40 years, Occupation Business,
R/o. 86, Police Lane,
Kranti Chowk, Aurangabad.
3. Devchand s/o Bakaji Chavan,
Age 66 years, Occupation Agriculture,
R/o. Verul, Taluka Khultabad,
District. Aurangabad.
4. The Manager,
United India Insurance Co. Ltd.,
Kohli Motor Buildings,
Seven Hills, Aurangabad. ... Respondents
(orig. Respondents)
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.....
Advocate for the Appellants : Mr. Anil A. Joshi
Advocate for Respondent No.2: Mr. R.T. Nagargoje
Advocate for respondent No.4: Mr. S.V. Kulkarni
.....
CORAM : V. K. JADHAV, J.
DATED : 17th MARCH, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award passed by
learned Member of M.A.C.T. Aurangabad, dated 13.12.2004 in
M.A.C.P. No. 372 of 2000, the original claimants have preferred this
appeal to the extent of quantum of compensation.
2. Brief facts, giving rise to the present appeal are as under:-
On 13.1.2000 at about 3.00/4.00 p.m. on Kannad -
Aurangabad road, the accident took place. Deceased Balchand was
driving a tractor bearing Registration No. MH-20-C-1310 with its
trailer. The trolley was loaded with sugarcane. On the way, one
truck bearing registration No. MH-20-W-5501 driven by respondent
No.1, owned by respondent No.2 and insured with respondent No.4
came in high speed and gave dash to the tractor being driven by
deceased Balchand. In consequence of which, deceased Balchand
had sustained injuries and while under treatment, succumbed to
those injuries. The appellants-original claimants filed M.A.C.P. No.
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372 of 2000 before learned Member, M.A.C.T. Aurangabad claiming
compensation on account of accidental death of deceased Balchand,
who was 40 years old at the time of his death. Learned Member,
M.A.C.T. Aurangabad, by impugned judgment and award, partly
allowed the claim petition and thereby directed respondent Nos. 2
and 4 jointly and severally to pay compensation of Rs.1,84,500/- to
the claimants. Thus, original claimants have preferred this appeal for
enhancement of compensation amount.
3. Learned counsel for the appellants submits that deceased
Balchand, besides cultivating agricultural land, used to drive tractor
and his monthly income from both sources was Rs.25,000/-. Even
though the 7x12 extract of landed property Exh.41 was produced
before the Tribunal, the same was not considered. The Tribunal has
considered the notional income of deceased Balchand as
Rs.15,000/- p.a. treating him as non earning member of the family
and accordingly, awarded meager amount of compensation to the
claimants, who were entirely dependent on the earnings of deceased
Balchand. Learned counsel submits that the Tribunal has also
erroneously applied multiplier 16 instead of 17. Learned counsel
submits that in the postmortem report, age of deceased Balchand
was shown as 35 years and the Tribunal ought to have applied the
multiplier as 17 in this case. Learned counsel further submits that
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the Tribunal has awarded meager amount under the head of non
pecuniary loss and also awarded interest at the rate of 6% instead of
9%.
4. Learned counsel for respondent No.4-Insurer submits that in
absence of income proof, the Tribunal has rightly considered the
income of deceased Balchand as Rs.15,000/- p.a. Learned counsel
submits that claimant No.1 has shown her age as 40 years in the
claim petition and she has also deposed about the age of her
deceased Husband Balchand as more than 40 years. Learned
counsel submits that the Tribunal has therefore, rightly applied
multiplier 16. Learned counsel submits that the Tribunal has
correctly awarded compensation for non pecuniary loss. Learned
counsel submits that no interference is called for. The appeal is
liable to be dismissed.
5. I have also heard learned counsel for respondent No.2-truck
owner.
6. Following points arise for my determination and I have
recorded my findings thereon for the reasons given below:-
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POINTS FINDINGS
1. Whether the Tribunal has assessed In the negative.
the compensation and awarded just
and reasonable compensation?
2. Whether the impugned judgment In the
and award calls of any interference? Affirmative.
3. What order? As per final
ig order?
REASONS
7. It is not disputed that deceased Balchand while driving tractor
met with an accident and truck driver is mainly responsible for
causing his accidental death.
8. So far as the quantum of compensation is concerned, 7x12
extract of the landed property at Exh.41 shows that deceased
Balchand owned and possessed land admeasuring 4 H 4 R and the
crops grown up therein are cotton, Jawar etc. Thus, it is not the case
that deceased Balchand was a non-earning member of the family.
Learned Member of M.A.C.T. has erroneously considered his
notional income as Rs.15,000/- p.a. by treating him as non-earning
member of the family. So far as the landed property is concerned,
the corpus remain as it is even after death of the person who was
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cultivating it. It also appears that claimant Nos. 2 and 3 are major
sons of deceased Balchand. Thus, the notional income of the
deceased could be considered as Rs.3000/- p.m. and by addition of
Rs.1000/- as the loss on account of lack of supervision by an
experienced person because of untimely death of deceased
Balchand, total income is considered as Rs.4000/- p.m.. The original
claimant Nos. 2 and 3 are major sons, claimant No.4 is unmarried
daughter and claimant Nos. 5 and 6 are the old aged parents. The
Tribunal should have considered the same and deduction on account
of personal expenses should have been made as 1/4 th instead of
1/3rd. It also appears that the Tribunal has awarded very meager
amount for loss of consortium, for love and affection, loss of estate
and towards funeral expenses. It also appears that the learned
Tribunal has awarded interest @ 6% p.a. instead of 9% p.a.
Deceased Balchand was admitted in hospital for three days after the
accident and he succumbed to the injuries. Thereafter, the dead
body was brought to his residence and accordingly, funeral was
performed. Considering the same, the Tribunal has awarded very
meager amount for funeral expenses.
9. In view of the above discussion, the break of compensation as
per the modification, can be broadly categorized as under:-
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I) Loss of dependency/income
(Rs.3000X12X16) - Rs.5,76,000.00
ii) Loss of consortium - Rs. 15,000.00
iii) Loss on account of love and
affection - Rs. 20,000.00
iv) Loss of estate - Rs. 10,000.00
v) Funeral expenses - Rs. 15,000.00
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ig Total - Rs.6,36,000.00
============
(Rupees Six lacs thirty six thousand only)
Thus, the claimants are entitled for Rs.6,36,000.00 with
interest @ 9% p.a. from the date of application till realization of entire
amount.
10. With this modification, the appeal is required to be allowed
partly. Hence, the following order.
ORDER
I. The appeal is hereby partly allowed.
II. The judgment and award dated 13.12.2004 passed by the
Member, M.A.C.T. Aurangabad in M.A.C.P. No. 372 of
2000 is hereby modified to the following effect.
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The claimants are entitled for an amount of Rs.6,36,000/-
inclusive of 'No Fault Liability' from respondent Nos. 2 and
4. Respondent Nos. 2 and 4 jointly and severally do pay
an amount of Rs.6,36,000/- to the claimants with
proportionate costs with interest @ 9% p.a. from the date
of application till realization of the amount.
III. The rest of the judgment and award stands confirmed.
IV.
Award be drawn up accordingly.
V. Appeal is disposed of in the above terms. No costs.
VI. Civil application No. 7205 of 2005 stands disposed of
accordingly.
( V. K. JADHAV, J.)
rlj/
