Reliance General Insurance ... vs Sangita Ravindra Joravar And Ors
2016 Latest Caselaw 6061 Bom

                                           1                         937 fa 3209.16.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                        
                           FIRST APPEAL NO. 3209 OF 2016




                                                
                                       WITH
                         CIVIL APPLICATION NO. 12106/2016

            Reliance General Insurance Company,




                                               
            Through its Manager,
            C/o Reliance General Insurance Company,
            Adalat Road, Aurangabad               ...             Appellant




                                        
                     Vs.

    1.      Sangita Ravindra Joravar,
                             
            Age: 28 yrs, Occ. Household,

    2.      Vrushali D/o Ravindra Joravar,
                            
            Age: 9 yrs, Occ. Nil

    3.      Vaishali D/o Ravindra Joravar,
            Age: 7 yrs, Occ. Nil
      


    4.      Bhaskar Somaji Joravar,
   



            Age: 67 yrs, Occ. Nil

    5.      Suman Bhaskar Joravar,
            Age: 61yrs, Occ. Household,
            No.2 and 3 are minors under





            guardianship of their mother
            Ori.claimant no.1.
            All R/o Newasa, Tq. Newasa,
            Dist. Ahmednagar.





    6.      Bhiku P. Agrawal,
            Age: Major, Occ. Business,
            R/o Plot No. 355, Ward No. 12/B,
            Gandhidham, Kutch, Gujarat.

    7.    Chadraman Kumar Gopalsinha (Deleted) ... Respondents
                                      ----
    Mr. S.S. Patil, Advocate for the Appellant.
    Mr. Ram B. Deshpande, Advocate for the respondents.
                                      ----




    ::: Uploaded on - 20/10/2016                ::: Downloaded on - 21/10/2016 00:25:35 :::
                                          2                             937 fa 3209.16.odt




                                             CORAM : P.R. BORA, J.

DATE : 15-10-2016.

ORAL JUDGMENT :

1. The present appeal is filed against the judgment and

award passed by the Motor Accident Claims Tribunal at Newasa in

M.A.C.P. No. 172 of 2014 on 06.05.2016.

2. The aforesaid claim petition was filed by respondent

nos. 1 to 5 (hereinafter referred to as claimants) herein claiming

compensation on account of the death of Ravindra Joravar in a

vehicular accident happened on 20.08.2010, having involvement of

a tanker bearing registration no. GJ-12-Y-8951 owned by present

respondent no.6 and insured with the present appellant. The

learned tribunal after having considered the oral and documentary

evidence brought on record before it awarded the compensation of

Rs. 10,02,600/- to the claimants jointly and severally from the

owner and insurer of the offending tanker. Aggrieved by the

insurance company has filed the present appeal.

3. Mr. Swapnil Patil, the learned counsel appearing for the

appellant-insurance company assailed the impugned judgment

mainly on two grounds. According to the learned counsel, the

claimants have not brought on record any cogent and sufficient

evidence as about the income of deceased Ravindra. The learned

counsel inviting my attention to certain observations made by the

tribunal submitted that, even the tribunal has observed that there

3 937 fa 3209.16.odt

was no concrete evidence as about the income of deceased

Ravindra. The learned counsel submitted that, though, it was the

contention of the claimants that deceased Ravindra was carrying

the business of selling milk, they did not bring on record any cogent

evidence to prove the income of the deceased. Learned counsel

submitted that, placing on record the account extract of the bank

account in the name of deceased was not sufficient to prove the

income of the deceased. The learned counsel submitted that, the

tribunal has erred in holding the income of the deceased Ravindra

to the tune of Rs. 4,000/- per month.

4. On the basis of such evidence, the learned counsel

further submitted that, when the income of the deceased itself was

not proved satisfactorily and there was no concrete evidence as

about the income of the deceased there was no reason to increase

the income of the deceased on notional basis on account of the

future prospects. Learned counsel submitted that, unless there is a

very specific and concrete evidence from the side of the claimants

proving the prospects of the deceased the income of the deceased

cannot be increased even notionally on the count of future

prospects and no compensation can be determined on the basis of

such increased income. The learned counsel further submitted that,

as per the age of deceased Ravindra i.e. 26 years the appropriate

multiplier is of 17, whereas, the tribunal has applied the multiplier

of 18. The learned counsel submitted that, on this count also the

4 937 fa 3209.16.odt

impugned award needs to be modified.

5. Shri Deshpande, the learned counsel appearing for the

original claimants, supported the impugned judgment and award.

The learned counsel submitted that, by examining an employee

from the bank in which the deceased was maintaining his account

and used to deposit the payment received to him by way of sale of

milk. The claimants have sufficiently proved the income of the

deceased. The learned counsel submitted that, as per the evidence

so produced on record by the claimants infact the tribunal ought to

have held the income of deceased on higher side. The learned

counsel submitted that, deceased Ravindra was having bright future

prospects in the business of selling milk. The learned counsel

submitted that, considering these aspects, the tribunal has rightly

increased the income of the deceased by 20% and has accordingly

determined the amount of dependency compensation on the basis

of the said income.

6. As about another objection raised by the insurance

company about the application of multiplier, the learned counsel

was fair enough in submitting that, the compensation was liable to

be calculated in the present matter by applying multiplier of 17 and

to that extent the claimants may not have any objection if the

award is modified.

7. I have carefully considered the submissions advanced

5 937 fa 3209.16.odt

by the learned counsel appearing for the respective parties. On

perusal of the judgment it is revealed that, the tribunal, though,

has observed that the claimants did not produce on record any

concrete evidence as about the income of deceased Ravindra. The

tribunal, has further observed that, the bank entries of the account

maintained in the name of deceased Ravindra sufficiently

demonstrate the average income of the deceased Ravindra.

Considering the evidence as aforesaid, the tribunal, has held the

income of deceased Ravindra to the tune of Rs.4,000/- per month.

It does not appear to me that, the income of the deceased so held

by the tribunal can be in any case said to be arbitrary or on higher

side.

8. The tribunal has further observed that, considering the

age of deceased it was likely that in the future he would have

developed his business of selling milk and, as such, the tribunal has

increased the income of deceased by 20% while determining the

amount of dependency compensation. Though, the learned counsel

for the insurance company was very persuasive in submitting that,

in absence of any evidence as about the income, future prospects

could not have been considered by the tribunal, having regard to

the evidence on record, it does not appear to me that, the tribunal

has committed any error in notionally increasing the income of the

deceased considering his future prospects. On the contrary what I

noticed is that the tribunal has very moderately increased the

6 937 fa 3209.16.odt

income of deceased by considering the future prospects. I,

therefore, do not see any reason to cause interference in the finding

so recorded and the income so determined of the deceased for the

purpose of determining the amount of dependency compensation.

9. The other objection raised on behalf of the appellant-

insurance company as about the application of wrong multiplier

certainly deserves consideration and the award certainly needs to

be modified to that extent. The learned counsel for the claimants

was fair enough in conceding that, in the present matter multiplier

of 17 ought to have been applied.

10. The tribunal has held the income of the deceased to the

tune of Rs. 4,000/- and, accordingly, held the dependency of the

claimants on the income of the deceased to the tune of Rs.

36,000/- per annum. By applying the multiplier of 18 to the said

amount, the tribunal, had determined the amount of dependency

compensation to the tune of Rs. 6,48,000/-, as stated herein above

the appropriate multiplier to be applied in the instant case was of

17, by applying the said multiplier the amount of dependency

compensation comes to Rs. 6,12,000/-, by adding 20% amount in

the said compensation considering the future prospects of deceased

Ravindra the amount gets increased to Rs. 7,34,400/-. In so far as

the compensation awarded by the tribunal towards non pecuniary

damages is concerned, I do not see any reason to cause any

7 937 fa 3209.16.odt

interference n the amount so awarded. The claimants are, thus,

held entitled for the total compensation of Rs. 9,59,400/- instead of

Rs. 10,02,600/- as awarded by the tribunal in the impugned award.

11. The impugned award, therefore, needs to be modified to

the aforesaid extent. Save and except the modification in the

amount of compensation as aforesaid the other part of the order

passed by the tribunal is maintained as it is. The appeal, thus,

stands allowed to the aforesaid extent, modified award be prepared

accordingly. The original claimants are permitted to withdraw the

amount as per the modified award in terms of the original award.

Balance amount be refunded to the appellant-insurance company.

Pending civil application, if any, stands disposed of.

(P.R. BORA) JUDGE

mub