Bombay High Court
Asha Kishan Badne And Ors vs Subhash Baburao Navale And Ors on 2 May, 2016
Bench: P.R. Bora
1 FA No. 25/2003
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.25 OF 2003
1. Asha W/o Kishan Badne,
Age: 24 years, Occu: Nil
2. Soni D/o Kishan Badne,
Age: 5 years, Occ : Nil
Through Natural Guardian
Asha Kishan Badne
3. Baburao S/o Namdeo Badne,
Age: 48 years, Occu: Agri.
4. Namdeo Krushnaji Badne,
Age: 69 years, Occu: Nil,
5. Bhimabai W/o Namdeo Badne
Age: 66 years, Occu: Nil.
All R/o Deokara, Tq. Ahmedpur,
District :- Latur. ... APPELLANTS.
VERSUS
1. Subhash S/o Baburao Navale
Age: 30 years, Occu: Driver,
C/o Narayan Sadhu Gaikwad,
Sukhwani residency, Adinathnagar,
Bhosari, Pune - 39.
(Deleted as per leave granted by
Hon'ble Court vide order dated
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2 FA No. 25/2003
01.03.2016)
2. Narayan S/o Sadhu Gaikwad,
Age: 35 years, Occu: Business,
R/o Sukhwani Residency,
Adinath-nagar, Bhosari,
Pune -39.
3. The Oriental Insurance Co. Ltd.
Arjun Towers, IIIrd floor,
Gokhle Road, Nampada, Thane,
Through its Branch Manager,
Branch office in front of Bus Stand
Latur.
4. New India Insurance Co. Ltd.
Sharda Center, 11/1, Erandwane,
Pune - 411 004
Through its, Branch Manager,
Branch Office Chandranagar,
Latur. ... RESPONDENTS
...
Mr. B.R. Kedar, Advocate for Appellant;
Mr.Dhananjay Deshpande, Advocate for Respondent No.3;
Mr. Mandar Deshmukh, Advocate h/f Mr. S.G. Chapalgaonkar,
Advocate for Respondent No.4
-----
CORAM : P.R.BORA,J.
DATE OF RESERVING JUDGMENT : 30
th
March,2016
DATE OF PRONOUNCING JUDGMENT: 2
nd
MAY, 2016
JUDGMENT
1) Heard. Original claimants have filed
the present appeal seeking enhancement in the
amount of compensation granted by the Motor
Accident Claims Tribunal, at Latur (for short,
the Tribunal) in MACP No.640/1997, decided on 28 th
February, 2001. The appellants are herein after
referred to as the claimants.
2) The claimants had filed the aforesaid
claim petition seeking compensation on account of
death of one Kishan Baburao Badne, who died on
4.12.1996 in a motor accident having involvement
of a tempo bearing registration No. MH-14-F-1475
and a jeep bearing registration No. MVM 9155.
The claimants had claimed the compensation of Rs.
4,00,000/-. claimant No.1 - Aasha is the widow;
claimant No.2 - Soni is the daughter, claimant
No.3-Baburao is father, whereas claimant No.4 -
Namdeo and claimant No. 5 - Bhimabai are grand-
parents of deceased Kishan.
3) It was the contention of the claimants
before the Tribunal that while deceased Kishan
was proceeding by driving his jeep from Pune to
Nashik near Borwadi Math, the tempo bearing
registration No. MH-14-F-1475 coming from the
opposite direction in a high speed, gave a dash
to the jeep being driven by deceased Kishan and
in the accident so happened, Kishan suffered
serious injuries and ultimately succumbed to the
said injuries. The claimants had alleged that the
accident in question happened because of the rash
and negligent driving of driver of the offending
tempo. The claimants had, therefore, claimed
compensation from the driver, owner and insurer
of the offending tempo. The offending temp was
owned by Respondent No. 2 - Narayan s/o Sadhu
Gaikwad and was insured at the relevant time with
Respondent No.3 - Oriental Insurance Co.Ltd. The
claimants had also impleaded the insurance
company of the jeep as Respondent No.4. However,
no relief was claimed against the said insurance
company.
4) As stated in the claim petition, age of
the deceased was around 24 years on the date of
the accident. As further stated in the petition
the deceased was serving as a mechanic and was
earning Rs. 2,500/- per month as the wages and
Rs.500/- by doing extra work. The claimants had
also claimed the compenation for damages caused
to the jeep in the alleged accident..
5)
The claim petition was contested by
Respondent No.3 - Oriental Insurance Company. It
was the contention of the Oriental Insurance
Company that in occurrence of the alleged
accident, there was negligence on the part of the
deceased also. The insurance company had also
disputed the averments as regards to the age and
income of the deceased.
6) In order to prove the contentions raised
in the claim petition, widow of the deceased,
viz. Aasha deposed before the Tribunal and one
Shivaji Dnyanoba Chate also examined on behalf of
the claimants to prove the income of the
deceased. The respondents did not adduce any
oral evidence.
7) The learned Tribunal on its assessment
of the oral and documentary evidence brought
before it, held the claimants entitled for the
total compensation of Rs. 2,65,000/- inclusive of
NFL compensation jointly and severally from the
driver, owner and insurer of the tempo. The
claim petition wad dismissed against Respondent
No.4, i.e. New India Insurance Company.
8) Shri Kedar, learned counsel appearing
for the appellants-claimants submitted that the
Tribunal has failed in awarding a just and fair
compensation. The learned Counsel submitted that
the income of the deceased was duly proved by the
claimants and in absence of any contrary
evidence, the Tribunal ought to have assessed the
compensation on the basis of the said proved
income. The learned counsel further submitted
that considering the number of dependents on the
income of the deceased, only 1/5 th of the total
income of the deceased was liable to be deducted
while computing the amount of dependency
compensation, whereas the Tribunal has deducted
1/3rd of the total income of the deceased towards
the personal expenses. The learned counsel
further submitted that the Tribunal has not taken
into account the future prospects of deceased
Kishan while determining the amount of
compensation. The learned counsel further
submitted that the compensation awarded by the
Tribunal towards the loss of consortium is
inadequate. The learned counsel submitted that
the Tribunal must have awarded separate
compensation to the minor daughter and the
parents of the deceased towards loss of love and
affection. It was further argued by the learned
counsel that the Tribunal has failed in not
awarding the damages caused to the jeep in the
alleged accident. The learned counsel, therefore,
prayed for enhancement of the amount of
compensation and to modify the Award to that
extent.
9) Shri Dhananjay Deshpande, learned
counsel appearing for Oriental Insurance Company
(Respondent No.3), opposed the submissions
advanced on behalf of the claimants. The learned
Counsel submitted that the Tribunal has awarded
the just and fair compensation and no
interference is required in the impugned Judgment
and Award.
10) I have carefully considered the
submissions advanced on behalf of the claimants
and the contesting insurance company. I have
also perused the impugned judgment and evidence
adduced before the Tribunal. In order to prove
the income of the deceased the claimants have
examined the employer of the deceased viz.
Shivaji Dyanoba Chate. In his evidence, the said
witness has deposed that he used to pay
Rs.2,500/- per month to deceased Kishan by way of
his monthly salary. The salary certificate issued
by said Shivaji Chate was duly proved during the
course of his evidence and was marked as Exhibit-
34. It is true that in the cross-examination of
said Shivaji, it has come on record that he did
not keep any muster of his employees and that he
had not brought with him any Account Register in
the Court. However, according to me, the
aforesaid facts were not sufficient to discard or
disbelieve the evidence of the said witness. It
has not been denied by the contesting insurance
company that deceased Kishan was working as
Mechanic. In the circumstances, the learned
Tribunal ought to have held the income of the
deceased to the tune of Rs.2,500/- per month. In
so far as the other contentions of the claimants
that he used to earn Rs.500 extra per month by
doing the mechanic work privately, since there
was no evidence at all, the Tribunal was right in
not considering the said income. However, there
was no reason for the Tribunal to hold the income
of the deceased to the tune of Rs.2,000/- per
month when through evidence of PW 2 - Shivaji
Chate, the claimants had sufficiently proved the
income of the deceased to the tune of Rs. 2,500/-
per month. Secondly, having regard to the number
of dependents on the income of the deceased, only
1/4th of the total amount of his income was liable
to be deducted towards the personal expenses of
the deceased. It is thus evident that the amount
of compensation is liable to be enhanced to the
aforesaid extent. Having regard to the fact that
the income of the deceased was Rs.2,500/- per
month, i.e. Rs.30,000/- per annum, if 1/4 th of the
same is deducted towards the personal expenses of
the deceased, the balance amount of Rs. 22,500/-
can be said to be available with the deceased to
be spent on the maintenance and welfare of his
dependents. It is not in dispute that the
deceased was 24 years old at the time of his
death. The appropriate multiplier would be thus
18. By applying the said multiplier, the amount
of dependency compensation comes to Rs.4,05,000/-
(22,500/- X 18).
11) It was sought to be canvassed by the
learned Counsel for the claimants that future
prospects of the deceased ought to have been
considered while determining the amount of
compensation. It was urged by the learned
counsel that having regard to the age of the
deceased, 50% of the income ought to have been
added in his proved income while determining the
amount of compensation. In support of his
contentions, the learned counsel has relied upon
the Judgments of the Hon'ble Supreme Court in the
cases of Smt. Sarala Verma and Ors. Vs. Delhi
Transport Corporation and Ors. - AIR 2009 SC 3104
and Rajesh and Ors. Vs. Rajbir Singh and Ors. -
2013 (6) Scale 563. There cannot be a dispute
that the future prospects of the deceased are to
be taken into account while computing the amount
of compensation. However, as has been held by
the Division Bench of this Court in the case of
The New India Assurance Co. Ltd. Vs. Smt. Alpa
Rajesh Shah and Ors. - 2014 (4) ALL.M.R. 172, the
claimants must produce satisfactory evidence to
show that there were genuine prospects of
increase or enhancement in the earnings of the
deceased. The Division Bench has further held
that only when there is a strong and positive
evidence on record to show that there were
definite prospects of increase in the income of
the deceased in future, such a case can be
treated as an exceptional case in which future
prospects of increase in the earning can be
considered by the Tribunal. In the instant
matter, the claimants have not brought on record
any such evidence. In the circumstances, the
submission made on behalf of the claimants, for
enhancement of the amount of compensation,
considering the prospects of the deceased and
consequent increase in his income, does not
deserve any consideration.
12) It was also sought to be canvassed that
the Tribunal has failed in not awarding the
damages caused to the jeep in the alleged
accident. The Tribunal in para 9 of the judgment
has given elaborate reasons for not granting any
amount towards the damages caused to the jeep.
It is stated that the claimants had not placed on
record any document showing ownership of the
deceased over the said jeep. It is further stated
that the expenses for repairs of the jeep were
incurred by the claimants. It is also stated
that there was evidence on record showing that
the jeep was repaired by Shivaji Chate and not by
any of the claimants. It has also come on record
that the said jeep was subsequently sold by said
Shivaji Chate and not by any of the claimants.
In view of the material on record, as above, it
does not appear to me that the Tribunal has
committed any error in not awarding any amount
towards the damages caused to the jeep.
13) The claimants have also raised the
grievances that the Tribunal has awarded
inadequate amount towards loss of consortium and
has not awarded any compensation towards the
funeral expenses and towards the loss of love and
affection to the daughter and parents of the
deceased. The Tribunal has awarded a sum of
Rs.15,000/- to the widow of the deceased towards
loss of consortium. It appears inadequate. I
enhance the said amount to Rs.35,000/-. I am
also inclined to award further sum of Rs.25,000/-
to the other claimants towards loss of love and
affection. Amount of Rs.5,000/- also deserves to
be granted to the claimants towards the funeral
expenses. The claimants are thus entitled to the
total compensation of Rs.4,65,000/-.
14) In the facts and circumstances of the
case, it appears to me that this would be the
just and fair compenation payable to the
claimants. The impugned Judgment and Award thus
needs to be modified to the aforesaid extent. It
be modified accordingly. It is directed that
Respondent Nos. 2 and 3 in the present appeal
shall jointly or severally pay to the appellants
enhanced amount of compensastion together with
interest thereon @ 6% p.a. From the date of
filing of the petition till actual realization of
the amount. It is further directed that the
aforesaid amount of enhanced compensation be paid
to appellant Nos.1 and 2 in equal proportion.
15) The First Appeal stands disposed of in
aforesaid terms.
sd/-
(P.R.BORA)
ig JUDGE
bdv/
fldr 27.4.2016
