Bombay High Court
Venkatrao Limbaji Kamble & Ors vs Tukaram Ambaji Ghule & Ors on 29 March, 2016
Bench: V.K. Jadhav
fa1413.04
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1413 OF 2004
1. Venkatrao s/o Limbaji Kamble,
Age 51 years, Occ : Nil,
R/o Hadoli, Taluka Chakur,
District Latur.
2. Hawsabai w/o Venkatrao Kamble,
Age 46 years, Occ : Household,
R/o Hadoli, Taluka Chakur,
District Latur. ... Appellants
Versus
1. Tukaram s/o Ambaji Ghule,
Age 55 years,
Occ : Owner of the vehicle,
R/o. Hingangaon, Taluka Ahmedpur,
District Latur.
2. Sambhaji s/o Shankar Bade,
Age 36 years, Occ : Driver,
R/o Hadoli, Taluka Chakur,
District Latur.
3. The National Insurance Company Ltd.,
Through its Branch Manager,
Hanuman Chawk,
Latur. ... Respondents
.....
Advocate for Appellants : Mr. S. S. Shinde
Advocate for Respondent No.2 : Mr. V. D. Gunale
Advocate for Respondent No.3 : Mr. P. P. Bafna
Respondent No. 1 served.
.....
CORAM : V. K. JADHAV, J.
DATED : 29th MARCH, 2016
fa1413.04
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and award passed by
learned Member, MACT, Latur, dated 31.03.2004 in MACP No. 490
of 2002, the original claimants have preferred this appeal.
2. Brief facts giving rise to the present appeal are as follows:
On 02.10.2002, deceased Sanjay was on way to his native
place from Kingaon in a jeep bearing registration No. MH-24-C-1524.
Respondent No.2 was driving the said jeep in rash and negligent
manner and on the way, he suddenly applied breaks of the jeep, in
consequence of which, deceased Sanjay fell down on the road from
the jeep. He had sustained several injuries and succumbed to the
same in hospital. The claimants, who are the parents of deceased
Sajnay, preferred MACP No. 490 of 2002 before learned Member,
MACT, Latur. Original respondent Nos. 1 and 2 i.e. the owner and
the driver of the vehicle involved in the accident, though duly served,
had not contested the claim petition. Respondent No.3-insurer
strongly resisted the claim by filing written statement at Exh.23.
Learned Member of the tribunal, by impugned judgment and award
dated 31.03.2004, partly allowed the claim petition with proportionate
costs and thereby directed the respondents to pay, jointly and
fa1413.04
severally, total amount of compensation of Rs.2,17,000/-, inclusive of
"No Fault Liability", with interest at the rate of 9% per annum on the
unpaid amount of compensation of Rs.1,67,000/-. Being aggrieved
by the same, the claimants have preferred this First Appeal to the
extent of quantum of compensation.
3. Learned counsel for the appellants-original claimants submits
that learned Member of the tribunal has not considered the income of
deceased Sanjay from his milk business. Learned counsel submits
that even though deceased Sanjay was getting Rs.50/- per day from
his milk business and also getting wages for doing labour work,
learned Member of the tribunal erroneously considered the income of
deceased Sanjay as per the normal wages for a labour. Learned
counsel submits that the tribunal has committed mistake in applying
multiplier by considering the age of claimants-parents. Learned
counsel submits that the tribunal ought to have considered multiplier
18 by taking into account the age of deceased Sanjay at the time of
his accidental death. Learned counsel submits that the tribunal has
awarded meager amount under the heads of non-pecuniary loss.
Learned counsel submits that even the tribunal has not awarded any
compensation on account of "loss of estate".
4. Learned counsel for respondent No.3-insurer submits that
fa1413.04
there is no pleading to the effect that deceased Sanjay was getting
Rs.50/- per day from his milk business. Learned counsel submits that
in absence of any pleading to that effect, the evidence, if any,
adduced by the claimants in this regard, cannot be considered.
Learned counsel submits that claimant No.1 has deposed in his
examination-in-chief itself, that deceased Sanjay was earning Rs.60/-
per day as wages for doing labour work. Learned counsel submits
that the tribunal has therefore, rightly considered the income of
deceased Sanjay as Rs.60/- par day, corresponding to Rs.1,800/-
per month. Learned counsel submits that the tribunal has further
committed mistake by deducting 1/3rd amount instead of 1/2 towards
personal expenses as deceased Sanjay was unmarried. Learned
counsel submits that considering the age of parents, the tribunal has
rightly applied multiplier 14. Learned counsel submits that the tribunal
has considered non-pecuniary loss and accordingly awarded just and
reasonable compensation. Learned counsel submits that no
interference is called for and the appeal is this, liable to be
dismissed.
5. I have also heard learned counsel for respondent No. 2.
6. The following points arise for my determination and I have
recorded my findings to those points for the reasons mentioned
below :
fa1413.04
POINTS FINDINGS
1. Whether the tribunal has correctly Partly in the
assessed the compensation? negative.
2. Whether the impugned judgment Partly in the
and award calls for an interference? Affirmative.
3. What order ? As per final
order.
REASONS
7.
So far as income of deceased Sanjay from his milk business is
concerned, there is no pleading to that effect. Moreover, there is no
material on record to establish that deceased Sanjay was carrying
out business of selling milk. Claimant No.1-Venkatrao has deposed
that deceased Sanjay was doing labour work and getting Rs.60/- per
day. I do not find any fault in the finding recorded by the tribunal that
deceased Sanjay was earning Rs.60/- per day, corresponding to
Rs.1,800/- per month.
8. So far as 1/3rd deduction on account personal expenses of
deceased Sanjay is concerned, it is well settled that the deduction of
50% towards personal expenses in case of unmarried son is proper.
In the case in hand, the tribunal has committed mistake in deducting
1/3rd amount from the income as personal expenses.
9. So far as the selection of multiplier is concerned, it appears
fa1413.04
that the tribunal has committed mistake in applying multiplier 14
instead of 18. Claimant No.1-Venkatrao has deposed that deceased
Sanjay was 20 years old at the time of his accidental death. As per
the postmortem notes, age of deceased Sanjay is 22 years. The
claimants have not produced any documents on record to show the
age of deceased Sanjay. Even considering the age of deceased
Sanjay as 22 years at the time of his accidental death, the
appropriate multiplier would be 18 instead of 14 as selected by
learned Member of the tribunal. Learned Member of the tribunal has
not awarded any compensation for "loss of estate". Claimant No. 1
was 50 years of age when claim petition was filed before the tribunal.
Deceased Sanjay was the eldest son. Claimants have three more
sons and one daughter, who are presently taking education. In these
circumstances, the tribunal should have considered "loss of estate"
on some higher level. On the other hand, the tribunal has not
awarded anything under this head. Considering the facts and
circumstances appearing in this case, I deem it appropriate to award
Rs.25,000/- towards "loss of estate". The tribunal has awarded total
amount of Rs.15,000/- as "loss of love and affection" and "funeral
expenses". The tribunal should have awarded separate
compensation for "loss of love and affection" and for "funeral
expenses". In my opinion, the "loss of love and affection" in the
present case should be Rs.15,000/- each for both the claimants and
fa1413.04
Rs.10,000/- as "funeral expenses".
10. Thus, the break up of compensation can be broadly
categorized as under:
1. Loss of dependency/income Rs.1,94,400/-
(1800-1/2 towards personal
expenses=900X12X18)
2. Loss of estate Rs.25,000/-
Loss of love and affection
(Rs.15,000/- each for both
Rs.30,000/-
the claimants)
4. Funeral expenses Rs.10,000/-
----------------------------------
TOTAL Rs.2,59,400/-
----------------------------------
Thus, the appellants-claimants are entitled for total
compensation of Rs.2,59,400/-. I answer point Nos. 1 and 2
accordingly and proceed to pass the following order:
ORDER
I. The First Appeal is hereby partly allowed with proportionate
costs.
II. The judgment and award dated 31.03.2004 passed by
learned Member, MACT, Latur in MACP No.490 of 2002 is
hereby modified in the following manner:
Opponent Nos. 1 to 3, jointly and severally, shall pay total
amount of compensation of Rs.2,59,400/-, inclusive of
fa1413.04
interim amount of compensation, along with interest at the
rate of 9% per annum from the date of filing claim petition
till realization of entire amount.
III. Rest of the judgment and award passed by learned
Member, MACT, Latur in MACP No. 490 of 2002 stands
confirmed.
IV. Award be drawn up accordingly.
V. The First Appeal stands disposed of.
( V. K. JADHAV, J.)
...
vre/-
