Minakshi Prabhakar Joshi And Ors vs Executive Engineer Project Pwd ...
2016 Latest Caselaw 5413 Bom

                                         1                     FA No.825/2002

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                       BENCH AT AURANGABAD

                            FIRST APPEAL NO.825 OF 2002




                                               
      1.       Smt.Minakshi w/o. Prabhakar Joshi,
               Age:45 years, Occu.: Household,




                                              
      2.       Miss Yogita D/o. Prabhakar Joshi,
               Age:21 years, Occu.: Student,

      3.       Ravindra S/o. Prabhakar Joshi,




                                      
               Age:19 years, Occu.: Studend,

      4.       Narendra S/o. Prabhakar Joshi,
                             
               Age:17 years, Occu.: Student,
               under guardian - mother i.e.
               Appellant No.1
                            
               All residents of Matruchhaya Niwas
               Maliwada, Begumpura, Aurangabad.
      

                                      ...APPELLANTS
                                     (Orig. Petitioners) 
   



                    VERSUS             

      1.       Executive Engineer,
               Road Project, P.W.D. Jalna,





      2.       Deputy Engineer,
               Road Project Division,
               Public Works Department,
               Padampura, Aurangabad,





      3.       Sub Divisional Engineer,
               Road Project Sub-Division
               Aurangabad,

      4.   Raju S/o. Narayan Ghati,
           Age: 30 years, Occu.: Driver,
           Public Works Dept. Jalna.   
                                       ...RESPONDENTS
                                      (Ori. Respondents)




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                                              2                       FA No.825/2002

                           ...
         Mr. D.V. Soman, Advocate for Applicants.




                                                                             
         Mr. G.O. Wattamwar, AGP for Resp.Nos.1 to 3. 
         Respondent No. 4 served.   




                                                     
                                       -----
                                   CORAM :  P.R.BORA, J.

DATE :

20 th

September,2016.

ORAL JUDGMENT:

1) Heard. The claimants in

M.A.C.P.No.427/1997 decided by the Motor Accident

Claims Tribunal, at Aurangabad (for short, the

Tribunal) on 31st January, 2001, have preferred

the present appeal seeking enhancement in the

amount of compensation awarded by the Tribunal.

2) The appellants - claimants had filed the

aforesaid claim petition seeking compensation on

account of death of one Prabhakar Joshi in a

vehicular accident happened on 7.11.1997, having

involvement of a jeep bearing registration No.

MH-21-A-9005, owned by present Respondent No.1.

3) Appellant No.1 is widow of deceased

Prabhakar Joshi, whereas appellant No.2 to 4 are

children of deceased Prabhakar.

4) In the claim petition, it was the

contention of the claimants that the alleged

accident had happened because of negligence on

part of the driver of the offending jeep. As

further averred in the petition, when deceased

Prabhakar was proceeding on his bicycle, he was

dashed by the offending jeep from his behind and

in the accident so happened, Prabhakar received

severe injuries and though he was immediately

hospitalized, ultimately succumbed to the

accidental injuries on 16.11.1997 while

undergoing the treatment in the hospital.

. As averred in the claim petition, age of

deceased Prabhakar was 47 years at the time of

the alleged accident and he was drawing monthly

salary to the tune of Rs.3,503/-. It was further

averred that beyond the office hours, deceased

Prabhakar used to do some private work and out of

the said work, used to earn around Rs.1200/- per

month. The claimants had, therefore, claimed the

compensation of Rs.7,00,000/- from the

respondents.

5) In order to substantiate the claim so

made, appellant No.1 - Meenakshi had deposed

before the Tribunal and the relevant police

papers pertaining to the accident in question

were also filed on record. The salary

certificate of deceased Prabhakar was also filed.

. The claimants had also examined one Anil

Pandurang Thatte in order to prove that deceased

Prabhakar was working as part-time worker with

him in his workshop and was earning around

Rs.1200 to 1300 per month by way of remuneration.

No evidence was adduced by the respondents.

6) The learned Tribunal, after having

assessed the oral and documentary evidence

brought on record by the claimants, awarded the

compensation of Rs.3,36,384/- inclusive of NFL

compensation. Aggrieved by the judgment

delivered by the Tribunal, the claimants have

preferred the present appeal seeking enhancement

in the amount of compensation.

7) Shri Soman, The learned Counsel for

appellants has assailed the impugned judgment on

various grounds. The learned Counsel submitted

that the Tribunal has grossly erred in not

considering the income being earned by deceased

Prabhakar by way of part-time work, which he was

doing in the welding workshop. The learned

Counsel further submitted that the claimants had

adduced convincing evidence to establish that

deceased Prabhakar was doing part time work

beyond the office hours and was earning around

Rs.1200 to 1300 per month.

. The learned Counsel further submitted

that there was no reason for the Tribunal to

disbelieve and discard the evidence of PW 2 -

Anil Pandurang Thatte since in the cross-

examination of the said witness also, no such

material has come on record so as to disbelieve

his testimony. The learned Counsel further

submitted that the Tribunal has failed in not

considering the future prospects of deceased

Prabhakar while determining the amount of

compensation.

. Placing reliance on the two judgments of

the Hon'ble Apex Court, first in the case of Smt.

Sarla Verma and Ors. Vs. Delhi Trnsport

corporation and Anr. - AIR 2009 SC 3104 and other

in the case of Rajesh & Ors. vs Rajbir Singh and

Ors. - (2013) 9 SCC 54, the learned Counsel

submitted that deceased Prabhakar was in the

permanent government employment and was entitled

for regular increments and as such, the Tribunal

must have considered the said aspect and have

determined the amount of compensation

accordingly.

8) The learned Counsel further submitted

that the Tribunal has also erred in applying the

multiplier of 12 when in view of the judgment

delivered by the Hon'ble Apex Court in the case

of Sarla Verma (cited supra), the appropriate

multiplier would have been of 13 considering the

age of deceased Prabhakar. The learned Counsel

further submitted that the Tribunal has also

erred in deducting 1/3 of the income of the

deceased towards personal expenses. The learned

Counsel, therefore, prayed for enhancement in the

amount of compensation on the aforesaid grounds

and to modify the impugned award to the said

extent.

9) Though the respondents are duly served,

have not entered their appearance in the matter.

10) In the light of the submissions made by

learned Counsel appearing for the appellants, I

read the impugned judgment. It is apparently

revealed that the amount of compensation needs to

be enhanced in the present matter on some counts.

Admittedly, deceased Prabhakar was in the

Government employment as a Welder and on the date

of death, he was earning the monthly salary of

Rs.3,503/-. It is further not in dispute that at

the time of his death, age of deceased Prabhakar

was of 47 years.

. Considering the aforesaid facts, in view

of the law laid down in the case of Sarla Verma

as well as Rajesh Vs. Rajbir Singh (cited supra),

while computing the amount of dependency

compensation, the actual income of deceased

Prabhakar will have to be enhanced by 30%.

Admittedly, deceased Prabhakar was drawing salary

to the tune of Rs.3,503/- at the time of his

death. Thus, 30% of the same comes to Rs.1051/-,

which amount will have to be added in his monthly

salary and thus the income of deceased comes to

Rs.4554/- and the compensation will have to be

assessed on the said amount.

11) In view of the law laid down by the

Hon'ble Apex Court in the case of Sarla Verma,

only 1/4th of total income of the deceased was

liable to be deducted towards his personal

expenses. The Tribunal has deducted 1/3rd of such

amount while determining the amount of

compensation. Considering the monthly income of

the deceased to the tune of Rs.4554/-, as

determined herein above by adding the prospective

income in the monthly income, if 1/4th amount is

deducted, the amount of Rs.3,415=50 ps, which

annually comes to Rs.40,986/- can be said to be

available to be spent by the deceased on the

maintenance and welfare of his dependants.

12) Having regard to age of deceased

Prabhakar, the appropriate multiplier will be of

13. By applying the said multiplier, the amount

of dependency compensation comes to Rs.

5,32,818/-.

13) The Tribunal has awarded a sum of

Rs.10,000/- towards non-pecuniary damages, i.e.

loss of consortium, loss of estate, funeral

expenses etc. The amount so awarded is quite

inadequate. I deem it appropriate to enhance it

to the tune of Rs.50,000/-. Thus, the

appellants are entitled for the total

compensation to the tune of Rs.5,82,818/-. In

the facts and circumstances of the case, it

appears to me that this will be just and fair

compensation payable to the appellants.

14) Though it was canvassed by learned

Counsel for the appellants that the Tribunal has

not considered the income, which deceased

Prabhakar was earning by doing extra work, I do

not see any substance in the submission so made

since the said fact has not been duly proved by

the appellants.

15) In the result, the following order, -

ORDER

i) The appellants are held entitled to the

total compensation of Rs.5,82,818/-,

inclusive the amount of no fault liability

compensation;

ii) Respondent Nos. 1 to 4 shall jointly and

severally pay the aforesaid amount of

compensation, deducting there from the

amount of compensation already paid under

NFL, together with interest thereon @ 7 ½

% per annum from the date of application

till its realization;

iii) The Award be modified accordingly;

iv) The appeal stands partly allowed in the

aforesaid terms. Pending Civil

application, if any, stands disposed of.

(P.R.BORA)

JUDGE

title - Kodgire bdv/Jt.