Bombay High Court
Rukhminibai Govind Yemunwad And ... vs Sayed Chand Pasha Sayed Azam Sab ... on 23 September, 2016
Bench: P.R. Bora
1 FA NO.2711 OF 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2711 OF 2016
1. Rukhminibai w/o Govind Yemunwad,
Age 25 years, Occ. Household.
2. Ankush s/o Govind Yemunwad,
Age 7 years, minor, u/g of appellant no.1.
3. Gangabai w/o Vithalrao Yemunwad,
Age 61 years, Occ: Household.
All r/o. Khanapur Tq. Degloor, Dist.Nanded
At present Maganpura, Nanded.
...APPELLANTS
(Orig.Claimants)
VERSUS
1. Sayed Chand Pasha s/o Sayed Azam Sab,
Age major, Occ. Business and owner of
Truck No.MH 26/H-5008,
R/o. Mohalla Begban Colony,
Near Omar Colony, Nanded.
2. The Oriental Insurance Company Ltd.
Through its Branch Manager,
Branch Office at sant krupa market,
G.G.Road, Nanded.
...RESPONDENTS
(Orig.Defendants)
...
Mr.Janakwade Shivsamb N., Advocate for the appellants.
Mr.A.N.Phatale, Adv., for respondent no.1.
Mr.Malte Uday S., Adv., for respondent no.2.
...
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2 FA NO.2711 OF 2016
CORAM : P.R. BORA, J.
Dated: September 23, 2016
...
ORAL JUDGMENT:-
1. Heard. Admit. With the consent of learned
Counsel for the parties, heard finally.
The claimants in M.A.C.P.No.510 of 2008, decided by
the Motor Accident Claims Tribunal at Nanded, on 4th of
May, 2013, have
ig filed the present appeal seeking
enhancement in the amount of compensation as awarded
by the Tribunal.
2. The aforesaid petition was filed by the present
appellants seeking compensation on account of the death
of one Govind Yemunwad in a vehicular accident occurred
on 13.5.2008 having involvement of a truck owned by
present respondent no.1 and insured with present
respondent no.3.
3. Appellant no.1 is the widow of the deceased.
Appellant no.2 is the son of the deceased whereas
appellant no.3 is the mother of the deceased. It was the
contention of the appellants before the Tribunal that age of
deceased Govind was 23 years on the date of the accident
and that he was earning around Rs.3,000/- by way of
3 FA NO.2711 OF 2016
labour work and also used to receive Rs.50/- towards daily
allowance. The appellants had, therefore, claimed
compensation amounting to Rs.5,00,000/- ( Rs. five lacs).
The Tribunal, after having assessed the evidence brought
on record, has held appellants entitled to the total
compensation of Rs.4,20,000/- inclusive of No Fault
Liability amount. Aggrieved thereby, the appellants have
filed present appeal seeking enhancement in the amount
of compensation.
4. Learned Counsel appearing for the appellant
submitted that though the appellants had placed on record
sufficient documentary evidence as about the date of birth
of deceased Govind, the Tribunal has discarded the said
evidence only on the ground that necessary witness was
not examined to prove the document so filed on record
and has held the age of the deceased in between 26 to 30
years and has applied multiplier of 17 while determining
the amount of compensation.
5. On perusal of the judgment, it is revealed that
4 FA NO.2711 OF 2016
the appellants had placed on record the school leaving
certificate, however, the Tribunal did not consider the said
certificate observing that the same was not duly proved by
examining the relevant witness. The approach of the
Tribunal cannot be subscribed. There was no reason for
the Tribunal to reject the said evidence in absence of any
contrary evidence. Further, it is not revealed as to on
what basis the Tribunal has held the income of the
deceased between 26 to 30 years. It appears that the
Tribunal has erred in drawing such an inference. In view
of the documentary evidence on record, the Tribunal must
have accepted the said evidence and held the age of the
deceased as 23 years.
6. In so far as the other objection that the Tribunal
has not considered the income and has determined the
amount of compensation on notional income of Rs.3,000/-
per month is concerned, I do not see any substance in the
objection so raised. The Tribunal has rightly observed
that the income of the deceased has not been duly proved
by the claimants by bringing on record the necessary
5 FA NO.2711 OF 2016
evidence.
7. Thus, the only aspect that requires to be
considered is whether the appropriate multiplier was
applied by the Tribunal while determining the amount of
compensation. The Tribunal has applied multiplier of 17
holding the age of the deceased between 26 to 30 years.
As noted by me hereinabove, the Tribunal must have held
the age of the deceased as 23 years on the basis of the
school leaving certificate existing on record. Thus, the
multiplier of 18 has to be applied in determining the
amount of compensation. By applying the said multiplier,
the amount of dependency compensation comes to
Rs.4,32,000/- ( Rs. four lacs, thirty two thousand).
8. Further, it is apparent that the Tribunal has not
awarded the adequate compensation towards non
pecuniary damages. The Tribunal has awarded
Rs.5,000/- towards funeral expenses, Rs.5,000/- towards
loss of consortium and Rs.2,500/- towards loss of estate.
I deem it appropriate to award a sum of Rs.1,50,000/- in
6 FA NO.2711 OF 2016
aggregate towards the non pecuniary damages. The
applicants are thus entitled to the total compensation of
Rs.5,82,000/- ( Rs. five lacs, eighty two thousand). In the
facts and circumstances of the case, it appears to me that
this much of compensation will be just and fair
compensation payable to the appellants claimants. The
impugned award, therefore, needs to be enhanced to the
aforesaid extent.
ig In the result, the following order is
passed:
ORDER
1. The appellants / claimants are held entitled for
the total compensation of Rs.5,82,000/- (Rs. five lacs,
eighty two thousand), inclusive of the amount of N.F.L.
compensation.
2. Respondent nos. 1 and 2 shall jointly or
severally pay to the appellants the aforesaid amount of
compensation with interest thereon at the rate 7½ per
cent from the date of claim petition till its realization.
3. 25 per cent of the aforesaid amount of
7 FA NO.2711 OF 2016
compensation with the interest thereon shall be paid to
appellant No.3 Gangabai widow of Vithalrao Yemunwad by
account payee cheque.
4. 30 per cent of the aforesaid amount with the
interest thereon shall be deposited in any nationalized
Bank in a Fixed Deposit Receipt in the name of Appellant
No.2 Ankush s/o. Govind Yemunwad for a period till he
attains the age of majority.
5. 20 per cent of the aforesaid amount be invested
in the name of Appellant No.1 Rukhminibai W/o. Govind
Yemunwad in any nationalized Bank in a Fixed Deposit
Receipt for a period of 3 years.
6. Balance 25 per cent of the aforesaid amount
with the interest thereon shall be paid to Appellant No.1
Rukhminibai W/o. Govind Yemunwad by crossed account
payee cheque.
7. The Appellants to pay the deficit Court Fees
8 FA NO.2711 OF 2016
Stamp. Modified award be prepared after payment of
deficit Court Fees.
The appeal shall stand allowed in aforesaid terms.
( P.R. BORA, J. )
ig ...
