Bombay High Court
National Insurance Co Ltd vs Vishwanath Sampat Ghode & Ors on 18 April, 2017
Bench: V.K. Jadhav
fa647.05
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 647 OF 2005
National Insurance Co. Ltd.,
having it's Head Office & Registered Office
at 3, Middleton Street, Kolkatta, a
Branch Office at Jalna and the Divisional
Office at Hazari Chambers, Station Road,
Aurangabad, Now through the Divisional
Manager at Aurangabad .. APPELLANT
VERSUS
1] Vishwanath S/o Sampat Ghode,
Age : 40 years, Occu.: Labourer,
R/o Near T.V. Centre, Jalna (Orig. Claimant No.1)
2] Kantabai W/o Vishwanath Ghode,
Age : 38 years, Occu.: Household,
R/o Near T.V. Centre, Jalna (Orig. Claimant No.2)
3] Sayyed Hameed S/o Sayeed Jamal,
Age : 35 years, Occu.: Driver of
Tractor and Trailer; R/o Kumbhephal,
Now residing C/o Nawab Garrage,
Near Bhokerdan-Naka, Jalna (Orig. Resp. No.1)
4] Mohd. Naseem S/o Mohd. Ibrahim,
Age : Major, Occu.: Owner of Trolley
No. MH-21/6974, R/o Kumbhephal,
Now residing at C/o Nawab Garrage,
Near Bhokerdan-Naka, Jalna (Orig. Resp. No.2)
5] Harichandra alias Harischandra
S/o Baburao Kshirsagar, Age : Major,
Occu.: Owner of Tractor No. MVV/7485,
R/o Pir-Pimpalgaon, Tq. & Dist. Jalna
.. (Orig. Resp. No.4) .. RESPONDENTS
...
Mr. Rupesh Bora, Advocate h/f. Mr. P.P. Bafna, Advocate for the appellant
Mr. Shrikishan S. Shinde, Advocate h/f. Mr. S.H. Joshi, Advocate for
respondent nos.1 and 2
...
::: Uploaded on - 20/04/2017 ::: Downloaded on - 22/04/2017 00:44:21 :::
fa647.05
-2-
CORAM : V. K. JADHAV, J.
DATED : 18th APRIL, 2017
ORAL JUDGMENT:-
1. Heard.
2. Being aggrieved by the judgment and award dated
15.10.2004 passed by the learned Member, M.A.C.T., Jalna in
M.A.C.P. No. 52 of 2003, the original respondent No.5 insurer has
preferred this appeal to the extent of quantum of compensation.
3. Learned counsel for the appellant insurer submits that the
Tribunal has considered the income of deceased on higher side. The
learned Member of the Tribunal has also deducted ¼ th of the amount
from the income of deceased towards his personal living expenses.
The learned Member of the Tribunal ought to have deducted ½ of the
amount from the income towards personal living expenses since
deceased was unmarried son. Learned counsel submits that it is well
settled that in case of claim, on account of death of unmarried son,
the relevant multiplier would be as per the average age of the
parents and not the age of deceased at the time of his accidental
death is required to be considered. In the instant case, the Tribunal
has applied multiplier of 18 instead of 15.
::: Uploaded on - 20/04/2017 ::: Downloaded on - 22/04/2017 00:44:21 :::
fa647.05
-3-
4. The learned counsel for the respondents/original claimants
submits that the Tribunal has awarded meager amount of
compensation and failed to award any compensation under non
pecuniary heads. The Tribunal has also not considered the future
prospects of the deceased. Learned counsel submits that though the
claimants have not preferred any cross appeal, they are entitled for
just and reasonable compensation.
5. On perusal of evidence and the judgment and award passed
by the Tribunal, it appears that the claimants have examined P.W.2
Jamil, who happened to be proprietor of Super Bakery. He has
issued certificate Exh.42, wherein it has been specifically mentioned
that he used to pay Rs.60/- per day as commission for sale of bakery
products to the deceased. On the basis of the evidence of P.W.2
Jamil on oath and the commission certificate on record Exh.42,
learned Member of the Tribunal has considered the income of the
deceased Rs.1800/- p.m. However, the Tribunal has erroneously
deducted 1/3rd of the amount towards personal and living expenses
of the deceased. The deceased was unmarried son and the Tribunal
ought to have deducted ½ of the amount toward his personal
expenses living expenses. Furthermore, the Tribunal has erroneously
applied multiplier of 18 instead of 15. The learned Member of the
Tribunal ought to have applied the multiplier in consonance with the
::: Uploaded on - 20/04/2017 ::: Downloaded on - 22/04/2017 00:44:21 :::
fa647.05
-4-
average age of the parents and not in consonance with the age of
the deceased at the time of his accidental death. In view of the
same, the relevant multiplier would be 15 instead of 18 in this case.
6. Even though this appeal is of the year 2005 and admitted
long back, the respondents/claimants have not bothered to file any
cross appeal. In view of this, I am not inclined to accept the
submissions made on behalf of the respondents-claimants in respect
of enhancement of compensation amount as awarded by the
Tribunal.
7. In view of the above discussion, the impugned judgment and
award of the Tribunal requires modification. Hence, I proceed to pass
the following order:-
ORDER
I. The first appeal is hereby partly allowed. No costs.
II. The judgment and award dated 15.10.2004 passed by the
learned Member, M.A.C.T. Jalna in M.A.C.P. No.52 of
2003 is hereby modified in the following manner:-
fa647.05
"The non-applicant No.1 Syed Hamid, No.2 Md. Nasik,
No.3 national Insurance Co., No.4 Harchandra @
Harichandra and No.5 National Insurance Co. do jointly
and severally pay an amount of Rs.1,62,000/- (Rupees
One lacs sixty two thousand only) to the applicant,
inclusive of no fault liability amount alongwith interest at the
rate of 9% p.a. from the date of application till realization of
entire amount."
III. Rest of the judgment and award stands confirmed.
IV. Award be drawn up as per the above modification.
V. Needless to say that if any amount is deposited by the
appellant insurer, as per the judgment and award passed
by the Tribunal, the same shall be the part of the modified
award and amount in excess, if any, shall be refunded to
the appellant insurer.
VI. The appeal is accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
