Bombay High Court
National Insurance Company Ltd vs Chaitali Samir Parekh & Ors on 5 May, 2016
Bench: A.S. Oka
rpa 1/23 fa-999-12_with_cross_objection-final.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.999 OF 2012
WITH
CROSS OBJECTION (ST.) NO.30505 OF 2012
National Insurance Company Ltd. ]
12, J.T. Road, Churchgate, ]
Mumbai - 400 020 ]
Policy No. 04071 valid from ]
15/01/2001 to 14/01/2002
(Policy of Motor Vehical No.
MH-04-AW-8373)
]
]
].. Appellant
(Wagon-R Met E2 VXI) ] Orig. Opp. Party No.2.
Versus
(1) Mrs. Chaitali Samir Parekh ]
(Widow of the deceased) ]
Residing at 206, Manish Park]
'A' Wing, 2nd Floor, ]
Parsi Panchayat Road, Pump House]
Andheri (E), Mumbai - 400 058. ].. Orig. Claimant
(2) Shri Prabhjot Singh Chandok ]
R/at. Flat No.2, Ground Floor, ]
Senham Hall Lane, ]
Dr. D. D. Sathe Marg, ]..Orig. Owner of Sumo
Mumbai 400 004. ].. Orig. Opp. Party No.1.
(3) Mrs. Varsha K. Advani, ]
R/at. Sai Anand Co.op.Hsg. Society ]
Bunglow No.3, S.No.38, ].. Orig. owner Wagon-R
Valvi, Taluka Vasai, Dist.Thane ].. Orig. Opp. Party No.2.
(4) The United India Insurance Co.Ltd.]
D.O. No.14, Mehta House,3rd floor, ] .. Insurer of Orig.
::: Uploaded on - 05/05/2016 ::: Downloaded on - 30/07/2016 00:59:05 :::
rpa 2/23 fa-999-12_with_cross_objection-final.odt
B.S. Marg, Mumbai - 400 001. ] Opp. Party No.1.
(5) Shri Chandrakant J. Parekh ]
(Deceased) ]
Smt.Hasumati Chandrakant Parekh]
R/at. 301, Kumud Mansion, ]
Forjette Stree, Mumbai 36 ].. Respondents
......
Mr. Rahul Mehta i/b. KMC Legal Venture, Advocate for the
Appellant in F.A.
Mr. Avinash M. Gokhale, Advocate for Respondent No.1 in FA and
for Appellant in OXBST No.30505 of 2012.
Mr. Amol Gatne, Advocate for Respondent No.4 in FA.
......
CORAM : A.S. OKA AND
C.V. BHADANG, JJ.
RESERVED ON : FEBRUARY 22, 2016.
PRONOUNCED ON : MAY 5, 2016.
(As per Rule 1 of Chapter XI of the Appellate Side Rules, 1960,
signed Judgment is pronounced by Shri A.S. Oka, J. at Bombay as
Shri C.V. Bhadang, J. is sitting at the Bench at Goa.)
ORAL JUDGMENT (Per. C.V. Bhadang, J.)
Samir Parekh aged 29 years met with an
unfortunate death, in a freak accident, which occurred on 26 th April,
2001 involving three vehicles.
2 Mrs. Chaitali Samir Parekh, widow of the deceased,
filed application no.255 of 2002 before the Motor Accident Claims
Tribunal at Mumbai under section 166 of the Motor Vehicles Act,
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1988 (for short, "the Act"), claiming compensation of
Rs.3,00,00,000/- (Rupees Three crores). In the said application,
apart from the owners of the two vehicles namely a Tata Sumo Jeep
bearing registration No.MH-01-S-8355 and a Wagon-R bearing
registration no. MH-04-AW-8373, the insurers of these two vehicles
were made parties. The original respondent nos.1 and 2 namely
Chandrakant Parekh (since deceased) and Smt.Hasumati Parekh,
are the parents of the deceased. The compensation was claimed
jointly and severally against the opposite party nos.1 and 2 and the
insurers.
3 It would be necessary to briefly set out the manner in
which the accident occurred. On the fateful day of 24 th April, 2001,
deceased Samir Parekh was driving his Hyundai Santro Car bearing
Registration No.MH-01-Y-2267 and was proceeding towards Mahim
causeway from Bandra. When the deceased reached near Mahim
signal at about 00.15 hrs., a Tata Sumo Jeep (No. MH-01-S-8355)
came from the opposite side, crossed the road divider and dashed
against the Santro Car driven by the deceased. In the meantime, a
Wagon-R (No. MH-04-AW-8373) came from behind the Santro Car
and rammed into the Santro Car (No.MH-01-Y-2267). As a result of
the accident, the deceased was stuck inside the car behind the
steering wheel. The deceased was removed from the car and was
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admitted to the Leelavati Hospital at Bandra where he succumbed
to the injuries.
4 At the relevant time, the deceased was aged 29 years
and was dealing in the stock markets and was also said to be
engaged in export business. According to the original claimant, the
deceased was earning more than Rs.1.23 crores per year. The
deceased was enjoying good health and would have lived up to
more than 75 years, considering the longevity in the family. On
account of his untimely death, the original claimant and the
respondent nos.1 and 2 being the parents of the deceased have
suffered loss of dependency. The original claimant has also
suffered a loss of consortium. It was in these circumstances, a
claim of Rs.3,00,00,000/- (Rupees Three crores) as compensation
was made.
5 The owner as well as the insurers contested the
petition. It was contended by the opposite party no.1 that the
deceased was guilty of contributory negligence, in the occurrence
of the accident. It was contended that there was no physical road
divider on the spot and the Santro Car driven by the deceased had
drifted towards the right side (western side of the road). It was
contended that seeing the Tata Sumo Jeep coming from the
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opposite direction, the deceased lost control as a result of which
the Santro Car dashed against the Tata Sumo Jeep. Subsequently,
the Wagon-R rammed in the Tata Sumo car from behind.
6 The owner of the Wagon-R (opposite party no.2)
remained absent and the petition was proceeded ex-parte against
her.
The United India Insurance Company Limited, the
insurer of the Tata Sumo Jeep-respondent no. 4 herein contested
the petition on similar grounds as raised by the opposite party no.1.
It was specifically contended that the accident occurred due to
composite negligence of the deceased and the driver of the Wagon-
R. A contention about breach of policy condition namely, the driver
of the Tata Sumo Jeep not having a valid driving license was also
raised.
8 The National Insurance Company Limited (insurer of
the Wagon-R) contended that the accident occurred due to
negligence of the deceased. It was contended that the driver of the
Wagon-R car had no role to play in the accident.
9 On the basis of the rival pleadings, the Tribunal raised
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three issues. The original applicant/claimant led evidence, in which
the original applicant examined herself apart from (AW-2) Ms.
Shobha Vaity, Rajkumar Malhotra (AW-3), Tukaram Mane (AW-4),
Shivratan Chhabaria (AW-5) and Ravindra Marchant (AW-6). She
also produced the record pertaining to investigation of the offence
by the police and the copies of the insurance policies. The opposite
parties (owners) and the insurers have not led any evidence.
The learned Tribunal came to the conclusion that the
accident occurred on account of the negligence of the drivers of the
Tata Sumo Jeep and the Wagon-R car. The Tribunal found that this
was a case of composite negligence of the drivers of the Tata Sumo
Jeep and the Wagon-R car which was apportioned at 70% : 30%,
respectively. In so far as the quantum is concerned, the
Tribunal came to the conclusion that the monthly contribution of
the deceased out of the income from the business and as a share
speculator could be assessed at Rs.24,000/- p.m. The Tribunal
further deducted 1/3rd amount towards the personal and living
expenses of the deceased. Thus, the loss of dependency was found
to be Rs.16,000/- per month i.e. Rs.1,92,000/- p.a. Applying a
multiplier of 17, the Tribunal assessed compensation towards loss
of dependency at Rs.32,64,000/-, apart from Rs.5,000/- towards loss
of consortium to the applicant, Rs.2,000/- towards funeral expenses
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and an amount of Rs.2,500/- towards loss of estate. Thus, the
Tribunal awarded a total compensation of Rs.32,73,500/- jointly and
severally against the opposite party nos.1 and 2 and the insurer
nos.1 and 2.
As the Tribunal held that it was a case of
composite negligence, it was found that there was no need to
apportion the liability inter se between the joint tortfeasors. The
Tribunal also awarded interest at the rate of 7.5% per annum on
the amount of compensation from the date of application till
realisation. The Tribunal further directed to pay an amount of
Rs.15,73,500/- with proportionate interest to the original
applicant/widow and an amount of Rs.8,50,000/- with proportionate
interest, each to original respondent nos.1 and 2, being the parents
of the deceased.
11 Feeling aggrieved, the National Insurance Co. Ltd.
(insurer of the Wagon-R) has filed First Appeal No.999 of 2012 in
which the original applicant has filed Cross-Objection Stamp
No.30505 of 2012.
12 We have heard the learned counsel appearing for the
parties. With the assistance of the learned counsel for the parties,
we have perused the record and the impugned judgment.
rpa 8/23 fa-999-12_with_cross_objection-final.odt
13 The learned counsel for the appellant strongly urged
that having regard to the manner in which the accident has
occurred, no negligence could be attributed, to the driver of the
Wagon-R. The learned counsel has taken us through the oral
evidence led and in particular that of (AW-2) Shobha Vaity who is
the sole eye witness, examined on record, in order to submit that it
was the Tata Sumo Jeep which after mounting the road divider
came on the wrong side of the road and dashed against the Santro
Car. It was contended that thus, the fact that the Santro Car was
dashed from infront in which the deceased was stuck behind the
wheels and was required to be extricated with the help of the fire
brigade, the death of the deceased cannot be attributed to the
impact of the Wagon-R car from behind. It was also contended that
the deceased was removed from the car after about one and half
hours from the accident and the death cannot be directly
attributed, to the injuries suffered as valuable time was lost, before
the deceased could get medical aid. The learned counsel has also
referred to the panchanama in order to submit that no liability can
be fastened on the appellant in the absence of proof of any
negligence by the driver of the Wagon-R.
14 A perusal of the grounds of Appeal would show that
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according to the appellant, the learned Member has erred in
apportioning the negligence to the tune of 30:70 between the driver
of the Wagon-R and Tata Sumo vehicle. The learned counsel has
taken, exception to the finding as to quantum which according to
the learned counsel is excessive.
15 The learned counsel appearing for the respondent no.4-
United India Insurance Company Limited has contended that there
was contributory negligence by the deceased in which the Santro
Car had drifted towards the right side as a result of which it dashed
against the Tata Sumo Jeep. It is contended that the Tribunal failed
to address itself on the issue of the contributory negligence by the
deceased. On behalf of respondent no.4 (United India Insurance
Company Limited) written notes of arguments have been filed on
record. It is also contended that in view of non-impleadment of the
tortfeasors i.e. the drivers of either of the vehicles and in the
absence of any evidence, the issue of apportionment of negligence
could not have been gone into. In so far as the quantum is
concerned, it is contended that there is no evidence to support the
correctness of the facts and figures as mentioned in the income tax
return (Exhibit-42). It is pointed out that in the Financial Year
2000-01 (Assessment year 2001-02), the deceased was shown to
have suffered a loss of Rs.9,61,060/- and had thus no income
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available to support the family.
16 The learned counsel for the original applicant/cross
objector has supported the finding of the learned Tribunal on the
point of composite negligence. It is submitted that in the manner in
which the accident occurred, no contributory negligence could be
attributed to the deceased. Reliance is placed on the decision of
the Hon'ble Apex Court in the case of Khenyei Vs. The New India
Assurance Company and Others1, in order to submit that in a
case of composite negligence the inter se liability of joint
tortfeasors need not be worked out, separately. It is submitted that
in any event, it is a matter inter se between the joint tortfeasors
and insofar as the claimant is concerned, the joint tortfeasors can
always be called upon to pay the compensation by way of a joint
and several liability. The learned counsel has also placed reliance
on the decision of the Hon'ble Apex Court in the case of Municipal
Corporation of Greater Bombay Vs. Laxmam Iyer & Anr. 2 and
on the point of interest, the decision in the case of Jitendra
Khimshankar Trivedi & Ors. Vs. Kasam Daud Kumbhar &
Ors.3
1 (2015) 9 SCC 273;
2 (2003) 8 SCC 731;
3 (2015) 4 SCC 237;
rpa 11/23 fa-999-12_with_cross_objection-final.odt
17 As regards quantum of compensation is concerned, the
learned counsel has placed heavy reliance on the income tax return
for the assessment year 2001-02 (FY 1999-2000) which shows that
the deceased had a business income to the tune of Rs.1,21,00,000/-
and had paid an advance tax on 14 th March, 2000 to the tune of
Rs.20,00,000/-. It is submitted that the said return was filed prior
to the death and thus would have great probative value in
determining the income of the deceased. The learned counsel has
taken exception to the manner in which the learned Tribunal has
arrived at the income of Rs.24,000/- per month by drawing an
average. He, therefore, submitted that the compensation needs to
be appropriately enhanced.
18 The learned counsel appearing for the cross-objector as
also the respondent no.4 (United India Insurance Company limited)
has taken us through a letter dated 22nd July, 2008 from the Income
Tax Officer, Mumbai which shows that in the Assessment Year 2001-
2002 (FY 2000-01), which was filed on 24 th September, 2001, the
deceased had declared a loss of Rs.9,61,060/-. It is contented that
thus the income tax return can not form a basis to arrive at the
income as claimed on behalf of the applicant. It was also pointed
out that in the earlier Income Tax Return for the Assessment Year
2000-01, the deceased had earned capital gains which cannot be a
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regular feature and a source of regular income.
19 We have given our anxious consideration to the rival
circumstances and submissions made. At the outset, it may be
mentioned that the occurrence of the accident, the involvement of
the three vehicles therein and the coverage of insurance of the Tata
Sumo Jeep and the Wagon-R and the death of Samir Parekh in the
accident is not in dispute. It would be first necessary to deal with
the question of negligence, both composite and/or contributory, if
any. In this regard, it would be appropriate to make a reference to
the evidence of Mrs. Shobha Vaity (AW-2). She has stated that
Mahim Sagar Sanidhya Rahiwasi Sangh is on Mahim Causeway.
The distance between her house and the road is about 20 feet. The
accident took place around midnight when she was returning from
using the common toilet and was standing near the road when one
Tata Sumo Jeep was proceeding from Dadar side to Bandra side.
The Tata Sumo Jeep mounted the divider, came on the wrong side of
the road and dashed against the Santro Car. On her raising shouts,
people gathered there. She also claimed that two vehicles which
came from Bandra side dashed against the Santro Car. She
specifically stated that the accident took place on the part of the
road which was leading from Bandra to Dadar. The road divider
was not much high. The road divider consisted of blocks. The Sumo
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Car was completely damaged.
There is nothing much in the cross-examination of this
witness, except she was confronted with the portion in the FIR in
which this witness expressed her inability to explain as to why it is
mentioned in the FIR that she saw the spot of the incident after
hearing the sound of impact. It is trite that standard of proof
required to prove negligence in a claims petition, is not as high as
is required in a criminal case. In a case of the present nature,
negligence can be proved on the basis of preponderance of
probability. It is (AW-2) Shobha Vaity who had lodged the FIR on
the basis of which an offence was registered. She appears to be a
natural witness who explained the manner in which the accident
had occurred. Her evidence is substantially corroborated in
material particulars by the FIR.
20 (AW-4) API Tukaram Mane had investigated the offence
being Crime No.129 of 2001, PS Mahim. He has stated that Shobha
Vaity was the informant of the accident which involved three
vehicles. He further stated that the Tata Sumo vehicle had crossed
the divider and had entered into the traffic flow coming from
Mahim. The Wagon-R which was following the Santro Car dashed
against its rear side. He further stated that the Santro Car got
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sandwiched between the Sumo and Wagon-R. The injured who was
the driver of the Santro Car was taken to the Leelavati hospital
which took about one hour where the driver of the Santro Car was
declared dead. The evidence of this witness has not at all been
challenged. The spot panchanama would further substantiate the
evidence of (AW-2) Shobha Vaity. The spot panchanama shows that
the road on either side is 80 feet in width. The Tata Sumo Jeep
was found to have crossed the road divider and entered the traffic
flow coming towards Mahim. Front portion of the Santro Car was
found to be entirely damaged in which the front portion including
radiator, bonnet and engine were pushed till driver's seat. It can,
thus, clearly be seen that the accident was triggered on account of
the Tata Sumo Jeep crossing the road divider and ramming into the
Santro Car from infront. It is true that the Wagon-R car was
coming from behind and it is possible that on account of the sudden
occurrence of the impact between the Tata Sumo Jeep and the
Santro Car, the Wagon-R dashed the Santro Car from behind.
However, it is necessary to note that a driver of any vehicle is
expected to take due care and caution while driving the vehicle on
a public road. Even assuming that the driver of the Wagon-R would
have abruptly found the Santro infront being rammed by the Tata
Sumo, the fact remains that the driver of the Santro Car failed to
avert the impact from behind. We further find from the evidence of
rpa 15/23 fa-999-12_with_cross_objection-final.odt
(AW-2) Shobha Vaity that the Santro Car had not drifted towards
the right, as claimed. Thus, no contributory negligence can be
attributed to the deceased. It is not possible in such cases to decide
the issue of negligence on mathematical precision. The Court is
required to take a pragmatic view of the broad possibilities of the
case, in consonance with the evidence on record. Having perused
the record and the impugned judgment, we are not inclined to
interfere with the finding of the learned Tribunal holding that the
accident was caused due to the composite negligence of the driver
of the Tata Sumo Jeep and the Wagon-R car as also the
apportionment of the negligence as 70:30 percent, respectively. We,
accordingly affirm the said finding.
21 There is a distinction between composite negligence
and contributory negligence. The Hon'ble Apex Court in the case of
Khenyei Vs. The New India Assurance Co. Ltd. and Ors
(Supra) has inter-alia held in paragraph 15 of the Judgment as
under:
"15. There is a difference between contributory and
composite negligence. In the case of contributory
negligence, a person who has himself contributed to
the accident cannot claim compensation for the injuries
sustained by him in the accident to the extent of his
own negligence; whereas in the case of composite
rpa 16/23 fa-999-12_with_cross_objection-final.odt
negligence, a person who has suffered has not
contributed to the accident but due to the outcome of
combination of negligence of two or more other
persons. This Court in T.O. Anthony v. Karvarnan has
held that in case of contributory negligence, the
injured need not establish the extent of responsibility
of each wrongdoer separately, nor is it necessary for
the court to determine the extent of liability of each
wrongdoer separately, nor is it necessary for the court
to determine th extent of liability of each wrongdoers
separately. It is only in the case of contributory
negligence that the injured himself has contributed by
his negligence in the accident."
Thus, in view of the fact that this is a case of composite
negligence, it is not necessary to apportion the liability inter se
between the joint tortfeasors. In so far as the applicant and the
original respondent no. 2-Smt. Hasumati Parekh are concerned, the
opponents/insurers would be jointly and severally liable to pay the
compensation.
22 This takes us to the issue of quantum. The cross-
objector who is the original applicant mainly relies upon the income
tax return (Exhibit-42) for the financial year 1999-2000 (AY 2000-
01). Indisputably the said income tax return is filed prior to the
date of accident which is 26th April, 2001. However, in our opinion
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that alone may not be decisive, although in a given case it is a
material circumstance to be reckoned. The applicant has stated in
her evidence that the deceased belonged to an affluent family and
they lived a lavish life. She stated that she along with the deceased
and his parents were staying at a house at Altamount Road,
Mumbai while the brother of the deceased was staying separately
at Nepeansea Road, Mumbai. The applicant further stated that they
had four motor vehicles including one Honda City which was for the
exclusive use of the applicant. She has stated that the income of
the deceased for the financial year 1999-2000 on the basis of the
ITR at Exhibit-42 was declared at Rs.1,23,12,140/- and the
deceased had paid an advance tax of Rs.20,00,000/-. She has
further stated that the deceased was dealing in stocks and had also
a proprietory export business, under the name and style as Chaitali
Exports.
23 We first propose to deal with the evidence about the
income tax return. (AW-3) Rajkumar Malhotra is the inspector from
the income tax department. He states that the income tax return
for the assessment year 2000-01 is not traceable in the office. (AW-
5) Shivratan Chhabria is stated to be a common friend of the
deceased and used to help him in filing his income tax return. This
witness claimed that he had filed the tax return at Exhibit-42. He,
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however, stated that he is not the Chartered Accountant of the
deceased. He further stated that except his bare words there is no
evidence to show that the facts and figures as mentioned in Exhibit-
42 are correct. He claimed that the facts and figures in the return
are mentioned on the basis of audited accounts given by the
deceased. He further stated that he was not aware whether the
deceased had that much income in the earlier years.
At this stage, it is necessary to mention that the copy of
the Income Tax Return (Exhibit-42) is not accompanied by any
profit and loss account and/or a balance sheet. As noticed earlier,
(AW-3) Rajkumar Malhotra who is the inspector of income tax states
that the return for the assessment year 2000-01 is not traceable in
the office. (AW-6) Ravindra Merchant is the father of the applicant
Chaitali. He cannot be said to have any personal knowledge about
the contents of the Income Tax Return except that this witness has
approached the brother of the deceased who had agreed to help in
the matter. He further claims that he had obtained the original
income tax return acknowledgment from the Chartered Accountant
of the deceased. What is significant is a letter dated 22 nd July, 2008
from the Income Tax office Mumbai. It appears from the paper
book (which was submitted by the applicant) that a summons was
sought to be issued at the instance of the applicant and in
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pursuance thereof the said letter was sent by the income tax
authorities. The said letter would make it clear that as per the
computer data, the return for the year 2001-02 of the deceased was
filed on 24th September, 2001 declaring a loss of Rs.9,61,060/-. The
said letter also states that the old record pertaining to the year
2000-01 was weeded out. However, no return of income was filed
in the concerned Income Tax Office as per the computer data for
the said year. It further appears that as per the computer record,
the PAN number of the deceased was shown as ACJPP 3155G while
in the tax return Exhibit-42, it is AAGPP 2148A.
24 It is trite that unlike a salaried person the income in a
business or a profession would fluctuate to a certain extent. This
would be more so in respect of business/profession which are
susceptible to volatility. The business of dealing in stocks as also
the export business in which the deceased was said to be engaged
are susceptible to a certain amount of volatility and for all these
reasons, we are unable to place implicit reliance on the Income Tax
Return Exhibit-42 particularly in view of the discrepancy in the PAN
number as also the letter dated 22nd July, 2008 which shows that for
the accounting year 2001-02, a loss of Rs.9,61,060/- was declared
by the deceased. In order to place reliance on the income tax
return it has to be consistently shown that for a reasonable period,
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the income as claimed, was infact earned by the deceased. We are,
therefore, not inclined to place reliance on the Income Tax Return
(Exhibit-42). The Tribunal after having discarded the evidence in
the form of Income Tax Return has then proceeded to assess the
income at Rs.24,000/- per month. It may be mentioned that in the
matter of assessment of compensation, particularly in absence of
any acceptable evidence, a reasonable guess work is necessary, if
not inevitable. The question is whether the income as reckoned at
the rate of Rs.24,000/- per month would be reasonable. It may be
mentioned that Section 166 of the Act envisages determination of
"just compensation", by the Tribunal. Thus, the compensation
should neither be meager nor excessive, so as to lead to enrichment
at the cost of the accident.
25 Going back to the evidence of (AW-1) Chaitali Parekh,
we find that it was brought on record and in fact in the cross-
examination, that the deceased was paying Rs.40,000/- per month
to the applicant for expenses. Considering the overall
circumstances and the evidence on record, we find that the income
as reckoned by the learned Tribunal at the rate of Rs.24,000/- per
month would be on the lower side. We are inclined to reckon the
income of the deceased at Rs.50,000/- per month. The Hon'ble
Apex Court in the case of Sarla Verma & Ors. Vs. Delhi
rpa 21/23 fa-999-12_with_cross_objection-final.odt
Transport Corporation & Anr.4, has inter-alia held that the
deduction towards the personal and living expenses where the
deceased was married and the dependents are 2 to 3 can be
reckoned as 1/3rd. We propose to deduct Rs.17,000/- towards the
personal and living expenses of the deceased. Thus, the loss of
dependency would be Rs.50,000/- less Rs.17,000/- which comes to
Rs.33,000/- per month i.e. Rs.3,96,000/- p.a. Considering the age of
the deceased as also the applicant, and the multiplier as set out in
the decision in the case of Sarla Verma & Ors. Vs. Delhi
Transport Corporation & Anr. (Supra), the Tribunal has rightly
employed the multiplier of 17. Thus, the compensation would be
Rs. 3,96,000/- x 17 = Rs.67,32,000/-. We are inclined to grant
Rs.15,000/- towards funeral expenses and another Rs.50,000/-
towards loss of consortium to the applicant and the loss of estate.
Thus, the total compensation would be Rs.67,97,000/-.
26 The learned counsel appearing for the applicant has
placed reliance on the decision of the Apex Court in the case of
Jitendra Khimshankar Trivedi & Ors. Vs. Kasam Daud
Kumbhar & Ors. (Supra), in order to submit that the Hon'ble
Apex Court has granted interest at the rate of 9% per annum.
Considering the prevailing rate of interest, we are inclined to
4 2009 ACJ 1298
rpa 22/23 fa-999-12_with_cross_objection-final.odt
modify the interest to 9% p.a. from the date of application till
realisation. We further hold that the applicant and the original
respondent no.2-Smt.Hasumati Parekh shall be entitled to 50% of
the compensation each along with proportionate interest. The
learned Member of the Tribunal shall pass appropriate order as
regards the investments/ distribution of the amounts payable to the
original applicant and the original respondent no.2. Consequently,
we proceed to pass the following order:
:: O R D E R ::
(i) First Appeal No.999 of 2012, is hereby
dismissed;
(ii) Cross-objection Stamp No.30505 of 2012 is
partly allowed. The amount of compensation awarded
is enhanced to Rs.67,97,000/-;
(iii) The amount of compensation shall carry interest
at the rate of 9% per annum, from the date of
application, till realisation;
(iv) The additional amount shall be deposited by the
rpa 23/23 fa-999-12_with_cross_objection-final.odt
concerned Respondents with the Tribunal within four
months from today;
(v) The original applicant Chaitali and the original
respondent no. 2-Smt. Hasumati Parekh, shall be
entitled to 50% of the compensation each, along with
proportionate interest. The Tribunal shall pass
appropriate order of investments/disbursement after
hearing the parties;
(vi) In the circumstances, there shall be no order as
to costs;
(C. V. BHADANG, J.) (A.S. OKA, J.)
