Manda Wd/O Shankar Awchar vs Shaturghna S/O Pralhad Guddhe And ...
2016 Latest Caselaw 2230 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                       
                                 NAGPUR.

                       FIRST   APPEAL     NO.   1120     OF     2015




                                                               
    Manda wd/o Shankar Awchar




                                                              
    aged 48 yrs. Occu. Housewife,
    R/o AT Agikhed, Post Khanapur,
    Tq. Patur, Distt. Akola.                                                APPELLANT.




                                               
                                               VERSUS
                             
    1] Shatrughna Pralhad Guddhe,
    aged Adult, Occu. Owner of 
    Autorikshaw bearing no. MH-30
                            
    P-6741, R/o At Agikhed, Post
    Khanapur, Tq. Patur, Distt. Akola. 

    2] United India Insurance Company
    Limited, Akola through Divisional
      


    Manager, R/o Old Cotton Market,
    Rajasthan Bhawan, Akola.                                                RESPONDENTS.

Shri S. D. Chopde, Advocate for the appellant.

Smt. Mrinal Naik, Advocate for the respondent no. 2.

                                     CORAM:     A. S. CHANDURKAR  J.
                               
                                      Dated    :   MAY  04, 2016.





    ORAL JUDGMENT: 

In view of notice for final disposal issued on 04.01.2016 the

learned counsel for the parties have been heard at length by admitting the

appeal.

2] The appellant is the claimant who had filed an application under

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Section 163-A of the Motor Vehicles Act, 1988 (for short, the said Act)

seeking compensation on account of fatal accident of Arvind Shankar

Awchar. On 09.04.2012 said Arvind was travelling in an autorikshaw which

was owned by the respondent no.1 and insured with the respondent no.2.

Said autorikshaw was dashed by a truck due to which it fell down from the

bridge resulting in aforesaid fatal accident. It is the case of the appellant that

said Arvind was doing labour work and was earning Rs.3000/- per month.

On that basis compensation of an amount of Rs. 3,50,000/- was sought in

proceedings under Section 163A of the said Act. The respondent no.1 did not

file any written statement. The respondent no.2 filed its written statement

and did not dispute that an un-identified truck had given a dash to the

autorikshaw. It was pleaded that the accident occurred due to negligence of

the truck driver and there was no negligence on the part of the autorikshaw

driver. It was then pleaded that it was a case of hit and run and therefore

provisions of Section 163-A of the said Act were not applicable.

Before the Claims Tribunal the appellant examined herself. The

Insurance Company examined the Clerk from the Regional Transport Office

as well as its Investigator. The Claims Tribunal vide judgment dated

14.01.2015 partly allowed the claim and granted compensation of Rs.

2,38,500/-. The appellant not being satisfied with the amount of

compensation has filed the present appeal.

3] Shri S. D. Chopde, the learned counsel for the appellant

submitted that the appellant was entitled for higher compensation.

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According to him as per Schedule II to the said Act, 1/3rd amount was

required to be deducted towards notional personal expenses. However,

Claims Tribunal deducted half amount in that regard. According to him the

proper multiplier ought to have been 17 as the deceased was aged about 24

years. He then submitted that additional amounts were required to be

granted on account of love and affection. He therefore sought for

enhancement in the amount of compensation.

4] Mrs. Naik, learned counsel for respondents opposed the prayer

for enhancement of compensation. According to her claim under Section

163A of the said Act itself was not tenable. She submitted that as the

accident was caused by an un-identified truck it was a case of hit and run. It

is submitted that as the authorikshaw was duly insured, the claim was

satisfied by the Insurance Company. She submitted that the appeal is liable

to be dismissed.

5] The following point arises for consideration:

Whether the appellant is entitled for higher compensation?

6] With the assistance of the learned counsel for the parties I have

perused the impugned judgment and I have given due consideration to their

respective submissions. The fact that the autorikshaw was insured with the

respondent no.2 is not in dispute. The Claims Tribunal has considered the

defence raised by the Insurance Company that the accident was a case of hit

and run but has not accepted the same as said Arvind was travelling in the

autorikshaw which was dashed by the truck. The defence with regard to

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breach of policy was also considered by the Claims Tribunal and was turned

down. The award as passed by the Claims Tribunal has not been challenged

by the Insurance Company. In fact, it is urged on behalf of the respondent

no.2 that as the autorikshaw was duly insured the claim as awarded has

already been satisfied. Thus in absence of any challenge whatsoever on the

part of the Insurance Company to the award of the Insurance Company, the

defence as raised in the written statement cannot be permitted to be re-

agitated.

7] The only aspect that requires consideration is the determination

of the amount of proper compensation. As the proceedings are under

provisions of Section 163-A of the said Act, Schedule II to the said Act would

have to be taken into consideration. The ratio of the judgment in Abati

Bezbaruah Vs. Deputy Director of General Geological Survey of India AIR 2003

Supreme Court 1817, relied upon the the learned counsel for the respondent

no.2 can be followed while determining the amount of compensation.

8] The Claims Tribunal has recorded a finding that Arvind was aged

about 24 years when the accident took place and was unmarried. The

income taken per month is Rs. 3000/-. The statutory deductions would be to

the extent of 1/3rd towards the amounts that would have been spent by the

victim. The multiplier applicable would be 17. On that basis the annual

earning would have to be taken at Rs. 36,000/-. After deducting 1/3 rd of the

amount towards personal expenses, the loss of dependency would be Rs.

24,000/- per annum. By applying the multiplier of 17 the total loss of

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dependency would come to Rs. 4,08,000/-. Further amounts towards loss of

love and affection and funeral charges can be taken at Rs. 42,000/- and on

that basis the compensation payable would be Rs. 4,50,000/-. The point as

framed is answered by holding that the appellant is entitled to higher amount

of compensation.

9] In view of aforesaid discussion the following order is passed:

The judgment dated 14.01.2015 in Motor Accident Claim Petition

No. 166 of 2012 is partly modified and the appellant is entitled to receive

total compensation of Rs. 4,50,000/- from the respondents who are jointly

and severally liable to pay the same. The amount of compensation is payable

with interest at the rate of Rs. 6% P. A. from the date of the application till

its realisation. The amounts already paid to the appellant shall be taken into

account.

After deducting the requisite amount of court fees, the balance

amount shall be paid by the respondent no.2 to the appellant within a period

of three months from today. The First Appeal is allowed in aforesaid terms

with no order as to costs.

JUDGE

svk

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