Smt Mohini Ganehs Lonkar And Anr vs Mr Dnyaneshwar Maruti Waghmare ...
2016 Latest Caselaw 6231 Bom

    Dixit
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                                        CIVIL APPELLATE JURISDICTION

                                        FIRST APPEAL NO.65 OF 2016




                                                             
            1. Mohini Ganesh Lonkar                               ]
               Aged about 34 years, Occ. Nil,                     ]
               C/o. Ajay Madhukar Jangam,                         ]




                                                            
               Shivaji Chowk, Jangam Galli,                       ]
               A/P Rahuri, Taluka - Rahuri,                       ]
               Dist. Ahmednagar - 413 705.                        ]
                                                                  ]
            2. Sai, d/o. Ganesh Lonkar                            ]




                                                  
               Aged about 10 years, Student,                      ]
               C/o. Mohini Ganesh Lonkarig                        ]
               C/o. Ajay Madhukar Jangam,                         ]
               Shivaji Chowk, Jangam Galli,                       ]
               A/P Rahuri, Taluka - Rahuri,                       ] .... Appellants /
                                      
               Dist. Ahmednagar - 413 705.                        ]    Org. Claimants
                           Versus
            1. Dnyaneshwar Maruti Waghmare                        ]
               R/o. Near Police Station, Alandi,                  ]
              


               Taluka - Khed, Dist. Pune.                         ]
                                                                  ]
           



            2. Narayan s/o. Samar Sav,                            ]
               R/o. Nandu Korade Chawl,                           ]
               Alandi, Dist. Pune.                                ] .... Deleted
                                                                  ]





            3. Shashikala w/o. Laxman Lonkar                      ]
               Aged about 50 years, Occ.: Household               ]
                                                                  ]
            4. Laxman s/o. Tatyasaheb Lonkar                      ]
               Aged about 56 years, Occ. : Nil,                   ]





                                                                  ]
            All residents of Shivam, Plot No.5,                   ]
            Survey No.19/4, Sainath Colony,                       ]
            Hinjwadi Road, Dange Chowk,                           ]
            Thergaon, Pune.                                       ] .... Respondents




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            FA-65-16.doc




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     Ms. Susan Abraham for the Appellants-Original Claimants.




                                                                               
    Mr. S.V. Sadavarte for Respondent No.1.

    Mr. Sachin Dhakephalkar for Respondent Nos.3 and 4.




                                                       
                             CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                             DATE    : 20TH OCTOBER 2016.

    ORAL JUDGMENT :




                                        
    1.       Heard learned counsels for the parties.


    2.
                               

This First Appeal is preferred by the original claimants challenging

the Judgment and Award dated 9th April 2013 passed by the Motor

Accident Claims Tribunal, Pune in M.A.C.P. No.687 of 2009. The Award

was passed on the basis of the 'Settlement' dated 16th March 2013,

arrived at before the Mediator. It is submitted that the compensation

awarded by the Tribunal to the appellants, considering that appellant No.1

is the widow and appellant No.2 is the minor daughter of ten years age, is

unfair, inequitable and against the principles of natural justice. It is also

urged that the Tribunal has erred in passing the impugned Award merely

for half of the claim amount. It is submitted that the appellants had

claimed the total amount of Rs.35,00,000/- towards the compensation.

However, the impugned Award is only for the amount of Rs.18,00,000/-.

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3. The main contention raised is that of the apportionment made by

the Tribunal in dividing the compensation amount in four parts; three equal

shares of Rs.4,00,000/-, each, for appellant No.1-widow, the mother and

father of the deceased, i.e. respondent Nos.3 and 4 herein, and appellant

No.2-minor child was awarded only Rs.5,50,000/-, thereby depriving the

appellants from their lawful share. It is urged that appellant No.1, along

with the minor child, was driven out of the matrimonial house by

respondent Nos.3 and 4. Respondent No.3 has already received the

personal insurance claim of deceased Ganesh from M/s. Bajaj Alliance

Limited, Pune. Respondent No.4 has inherited the landed property of 0.66

acres of agricultural land at Village Bhagwatipur, Kolhar, Taluka Rahata,

Dist. Ahmednagar, from his father and he is drawing income from the

same. The elder brother of the deceased Ganesh, namely, Pramod

Lonkar, is a Central Government employee, who has appropriated

Insurance Policy in the name of the deceased from M/s. Yashwant Co-

operative Credit Society Ltd., Kolhar, Taluka Rahata, Dist. Ahmednagar.

He is also a salaried Central Government employee having Government

residential quarters and, thus, it is urged that respondent Nos.3 and 4 had

already received the benefits on account of untimely death of deceased

Ganesh. Despite that, the Tribunal has awarded them equal amount of

compensation, like, that of appellant No.1 and, hence, as appellant No.2,

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being the minor child of the deceased, was entitled to get substantial sum

from the compensation amount. She being deprived of the same, this

Court should interfere and award the appellants the compensation amount

which can be just and reasonable.

4. By way of amendment in the Appeal Memo, the Consent Terms filed

before the Mediator are also challenged by submitting that appellant No.1

was only a 12th Standard passed lady, bringing up a small daughter, who

was not staying at her matrimonial home, or, that respondent Nos.3 and 4,

at the time of signing Consent Terms before the Mediator, pressurized

appellant No.1 to sign the Consent Terms. She was misguided by her

lawyer to the effect that she would get for herself and minor child the

amount of Rs.18,00,000/- and the Consent Terms were only in respect of

her and her child's entitlement and not in respect of the entitlement of

respondent Nos.3 and 4. It is submitted that, in view thereof also, it has

become necessary to set aside the entire Award as such.

5. This Appeal came to be resisted by learned counsel for respondent

No.1 by submitting, inter alia, that, when the Consent Terms are filed

before the Mediator, then, they must have some sanctity and at the time of

filing of the Consent Terms, it was clearly agreed that the compensation

amount of Rs.18,00,000/- will be given in lump-sum towards the claim of

the present appellants and respondent Nos.3 and 4. There was no

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question of any misrepresentation or the appellant No.1 being misled by

her lawyer. The reliance is placed on the copy of the 'Settlement' arrived

at before the Mediator; especially, the third clause in the Settlement

Terms, which clearly shows that this amount of Rs.18,00,000/- was to be

given as compensation towards the claim of all the claimants and thus it is

urged that there is no question as to challenging or setting aside the

Settlement Terms. As regards the apportionment of the compensation

amount, learned counsel for respondent No.1 has fairly conceded that he

has nothing to say, because it is the dispute amongst appellant No.1 and

respondent Nos.3 and 4 interse.

6. As regards respondent Nos.3 and 4, they have resisted the request

made by appellant No.1 by submitting that, there is no question of

changing the apportionment of the amount of compensation at this stage,

as the Tribunal has rightly awarded the same. At one stage, respondent

Nos.3 and 4 had also tried to contend that they were also under

impression that amount of Rs.18,00,000/- was awarded as compensation

in the Settlement Terms to appellant Nos.1 and 2 only and not towards the

claim of all the claimants. However, as no cross-objection was filed on

behalf of respondent Nos.3 and 4 taking objection to the Award, on 1 st

September 2016, an adjournment was also granted for two weeks, as

learned counsel for respondent Nos.3 and 4 had undertaken to file such

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cross-objection within two weeks. However, today, it is fairly submitted by

learned counsel for respondent Nos.3 and 4 that they are not filing any

cross-objection challenging the Award.

7. In view thereof, the only question, which can arise and may arise,

before this Court now is, 'whether the apportionment of the compensation

amount, as made by the Tribunal, is just, legal and correct? Because,

though appellant No.1 has challenged the 'Settlement' arrived at before

the Mediator, on which the Tribunal has passed the Award, on the count

that appellant No.1 was misled and though learned counsel for

respondent Nos.3 and 4 has also submitted that the Settlement Terms do

not bear the signature of respondent Nos.3 and 4 and, therefore, such

settlement cannot be binding on them, the fact remains that such

contention should have been raised immediately before the Award was

passed on the basis of the said settlement. Some sanctity needs to be

attached to the settlement, which is arrived at before the Mediator.

Otherwise, the entire mediation process, as such, will become fruitless

and will loose its significance. If it was so, that respondent Nos.3 and 4

had not consented for the settlement, then, as rightly submitted by learned

counsel for respondent No.1, they should not have withdrawn the amount

of compensation, but challenged the Award and Settlement itself.

However, it is clear that they have not done so.

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8. Even as regards the appellants, as can be seen from the contents

of the 'Settlement', the amount of Rs.18,00,000/- was accepted towards

the full and final settlement of the entire claim of Rs.35,00,000/-. It is

pertinent to note that, the settlement was arrived at before the Mediator on

16th March 2013 and the Award in terms thereof has been passed by the

Tribunal on 9th April 2013. Therefore, there was sufficient period of one

month, in between, for either appellant No.1 or even for respondent Nos.3

and 4 to challenge the said 'Settlement'. They have not done so.

Otherwise also, it becomes difficult to accept that respondent No.1 would

agree for the settlement with appellant Nos.1 and 2 only, and, that too, for

the half of the claim amount. It follows that respondent No.1 would not

have agreed for the same, if it was not the settlement of the total claim.

Hence, looked at It from any angle, this Court is not convinced to accept

the contention that the settlement was only between the appellant Nos.1

and 2 on the one part and respondent No.1 on the other part.

9. Now remains only the question of the apportionment of the

compensation amount. As stated above, the Tribunal has awarded the

equal share of Rs.4,00,000/-, each, to appellant No.1 and respondent

No.3-mother and respondent No.4-father of the deceased. While, the

appellant No.2, the minor child of appellant No.1 and the deceased, was

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awarded only Rs.5,50,000/- from the total compensation of

Rs.18,00,000/-. It is clear that appellant No.1, being the widow, and

appellant No.2, being the minor child of the deceased, they need to be

awarded more share and not the equal share like that of the parents;

especially, when one considers the fact that the deceased had one more

brother, who was Central Government employee, and also considering the

fact that respondent No.3-mother of the deceased had already received

the personal insurance claim of the deceased from M/s. Bajaj Alliance Ltd.

It is also brought on record that respondent No.4 had the landed property,

from which he is deriving income. Therefore, it is clear that the

apportionment of the compensation amount, as made by the Tribunal, is

not at all correct and definitely calls for the interference.

10. In this respect, learned counsel for the appellants has relied upon

various decisions of this Court and the Hon'ble Apex Court; especially, the

decision of Division Bench of this Court in First Appeal No.872 of 2012,

in the case of Smt. Archana Sandip Purandare & Ors. Vs.Dawoodsab

Ladlesab Walikar & Ors., dated 12th December 2013 [Coram : S.C.

Dharmadhikari and R. Y. Ganoo, J.J.], in which the claimants were the

widow and the daughter of the deceased, along with parents of the

deceased, and while apportioning the said claim, this Court has awarded

20% of the total amount of compensation to the parents, 60% of the total

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amount of compensation to the minor child and 20% of the total amount of

compensation to the widow.

11. Considering the facts of the present case, in this Appeal also, it has

become necessary to quash and set aside the apportionment of the

compensation amount, as done by the Tribunal, and to that extent, the

Appeal needs to be allowed.

12. This First Appeal is, therefore, allowed partly.

13.

The impugned Award of the Tribunal granting compensation of

Rs.18,00,000/- is maintained. However, the apportionment is changed and

modified as follows :-

14. Out of the total amount of compensation, 60% of the compensation

amount be paid to appellant No.2 - the minor child of appellant No.1 and

the deceased. The said amount, with proportionate interest accrued

thereon, be deposited in any Nationalized Bank till the appellant No.2

attains the age of majority. However, appellant No.1 - the mother of

appellant No.2, will be entitled to withdraw the interest accruing thereon

for bearing education and maintenance expenses of appellant No.2.

15. The Tribunal is directed to award 20% of the total amount of

compensation to appellant No.1 and to pay remaining 20% of the total

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amount of compensation to respondent Nos.3 and 4 with proportionate

interest thereon.

16. This First Appeal is, accordingly, disposed of.

17. Tribunal is directed to do the needful within a period of two months

from the date of receipt of a copy of this order. Registrar (Judicial-II) is

directed to communicate this order to the concerned Tribunal forthwith.

18. As Ms. Susan Abraham, learned counsel for the appellants, is

appointed from the Panel of Legal Services Authority, the Legal Services

Authority is directed to pay her fees, which are quantified @ Rs.5,000/-.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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