Smt.Sheela Govind Bansode vs Asir Channubhai Shaikh & Ano
2017 Latest Caselaw 1981 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         FIRST APPEAL NO. 1447 OF 2004
                                     WITH
                      CIVIL APPLICATION NO. 6810 OF 2005


 1.       Smt. Sheela Govind Bansode
          Age. 22 years, Occu. Household,

 2.       Yogeshwar Govind Bansode
          Age. 2 years, Occu. Nil,

 3.       Shri. Dagdu Dadarao Bansode
          Age. 47 years, Occu. Nil,

 4.       Sau. Rahyabai Dagdu Bansode
          Age. 42 years, Occu. Household,

          (Applicant No.2 Minor through his
          guardian mother applicant No. 1)

          All R/o. Malegaon, Tal. Nilanga,
          District. Latur.                                 ...Appellants

                  Versus

 1.       Asir Channubhai Shaikh
          Age. Major, Occu. Business,
          R/o. Gunshan Bungalow,
          Burudgaon Road, Ahmednagar,
          District. Ahmednagar.

 2.       The Divisional Manager
          The New India Assurance Company Ltd.
          (Notice to be served on Branch Manager,
          The New India Assurance Company Ltd.,
          Abat Building, Near Ashoka Hotel,
          Ahmednagar.                                     ...Respondents

                                        ...
                     Advocate for Appellant : Mr. N.C. Garud
                Advocate for Respondent No.2 : Mr. M.M. Ambhore
                                       .....

                                             CORAM : V. K. JADHAV, J.

DATED : 25th APRIL, 2017

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ORAL JUDGMENT:-

1. Being aggrieved by the judgment and award passed by the

Chairman, Motor Accident Claims Tribunal, Ahmednagar dated

1.7.2004 in M.A.C.P. No. 349 of 2002, the original claimants have

preferred this appeal to the extent of quantum of compensation.

2. Learned counsel for the appellants/original claimants submits that

deceased Govind was working as supervisor in Mudrik Enterprises,

M.I.D.C. Ahmednagar. As per certificate Exh.36, deceased Govind had

undergone certified course from August 1996 to July, 1998 for Trade

"Surveyor". Deceased was getting salary of Rs.6000/- p.m. Learned

counsel submits that deceased was working as Supervisor with the said

firm for three years prior to the accident and the work was in progress in

Rahuri Krishi Vidyapeeth at the time of accident. Near about 15

workers were also working with the deceased Govind and deceased

Govind was supervising the said work. The employer has issued salary

certificate which is marked at Exh.34, wherein it has been specified that

the last drawn salary of the deceased was Rs.4500/- p.m. Learned

counsel submits that the Tribunal has discarded the above evidence

and considered notional income of deceased Govind at Rs.1500/- p.m.

and thus, awarded very meager amount of compensation. Learned

counsel submits that even the Tribunal has awarded very meager

amount under non pecuniary heads, such as loss of consortium, loss of

love and affection and also for funeral expenses. The Tribunal has also

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erroneously applied the multiplier 17 instead of 18. Learned counsel

submits that the Tribunal has not at all considered the future prospects

of deceased Govind.

3. Learned counsel for the respondent/insurer submits that so called

salary certificate Exh.34 speaks about the approximate monthly gross

salary of deceased at Rs.4500/-. The claimants have examined one

witness Dayanand, who happened to be the partner of said Mudrik

Enterprises. He has admitted in his cross examination that muster of

the labourers and supervisor is maintained and his firm is registered

one. He further admitted in his cross examination that provisions of

Labour Act stand applicable to his firm. However, he has not produced

any record before the Tribunal pertaining to the salary being paid to

deceased Govind. He has even not produced before Tribunal the pay

roll or certificate regarding payment. Furthermore, the appointment letter

and other related documents are also not produced on record. Learned

counsel submits that the Tribunal has therefore, rightly discarded the so

called salary certificate Exh.34 and accordingly considered the notional

income of deceased at Rs.1500/- p.m.. Learned counsel submits that

the Tribunal has awarded just and reasonable compensation under

other heads. No interference is required.

4. On careful perusal of evidence and the judgment and award

passed by the Tribunal, though I find that the Tribunal has correctly

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discarded certificate Exh.34 from consideration. However, the Tribunal

has considered notional income of deceased Govind at lower side. It

appears from certificate Exh.36 that deceased Govind has completed

the course in Industrial Training Institute, Nilanga and passed the

prescribed test in the trade "Surveyor". Furthermore, the certificate of

his "Secondary School Certificate" examination is also produced on

record and the same is marked at Exh.37. However, the Tribunal has

considered the income of deceased Govind as if he was doing labour

work on daily wages of Rs.50/- per day. In my considered opinion, the

Tribunal ought to have considered the notional income of deceased

Govind at Rs.3000/- p.m. Thus, the compensation under the loss of

future income, as awarded by the Tribunal, requires re-determination. It

further appears that the Tribunal has awarded very meager amounts

under the heads of loss of consortium and loss of love and affection.

The date of birth of deceased Govind, as per certificate Exh.37, is

20.10.1978 and date of accident is 4.6.2002. Thus, on the date of

accident, deceased Govind was 24 years of age. The appellant-

claimant No.1 was 20 years of age at the time of accidental death of her

husband. The appellant-claimant No.2 was just 2 months old at the time

of death of his father. After deducting 1/3 rd amount from the income of

deceased towards his personal and living expenses, the relevant

multiplier would be 18 in consonance with the age of deceased at the

time of his accidental death.

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5. In view of above, the appellant-claimant No.1 is entitled for

Rs.50,000/- for loss of consortium, appellant No.2-minor son is entitled

for Rs.25,000/- for loss of love and affection and appellant Nos. 3 and 4,

old aged parents of deceased Govind, are entitled for Rs.10,000/- each

for love and affection. The appellants claimants are also entitled for an

amount of Rs.15,000/- towards funeral expenses.

6. Thus, the breakup of compensation under various heads, which

can be broadly categorized is as under:-

I) Loss of future income/dependency Rs. 4,32,000.00 (Rs.2000x12x18) (As against Rs. 2,04,000/- as awarded by the Tribunal)

II) Loss of consortium for appellant No.1 Rs. 50,000.00 (As against Rs.5000/- as awarded by the Tribunal)

III) Loss of love and affection for Rs. 25,000.00

(As against Rs.5000/- as awarded by the Tribunal)

IV) Loss of love and affection for appellant Rs. 20,000.00 Nos. 3 and 4 Rs.10,000/- each.

                  (As against Rs.6000/- as awarded
                  by the Tribunal)

          V)      Funeral expenses                            Rs.    15,000.00
                  (As against Rs.3000/- as awarded
                  by the Tribunal)
                                                           --------------------
                                                     Total Rs.5,42,000.00
                                                           ============

The appellants-claimants are entitled for compensation of

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Rs.5,42,000/- (Rupees Five lacs forty two thousand) as worked out

herein-above.

7. In view of the above, the impugned judgment and award requires

modification. Hence, I proceed to pass the following order:-

ORDER

I. The first appeal is hereby partly allowed with proportionate

costs.

II. The judgment and award dated 1.7.2004 passed by the

learned Chairman, M.A.C.T. Ahmednagar in M.A.C.P. 349 of

2002 is hereby modified in the following manner:-

"The opponent Nos. 1 and 2 do pay, jointly and severally, to the appellants-claimants, an amount of Rs.5,42,000.00 (Rupees Five lacs forty two thousand only) inclusive of "no fault liability" amount with proportionate costs and future interest @ 9% p.a. from 29.6.2002 till realization of entire amount."

III. Rest of the judgment and award stands confirmed.

IV. The award be drawn up as per the above modification.

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V. Needless to say that if any amount is paid as per the

judgment and award passed by the Tribunal, the same shall

be the part of modified award.

VI. First appeal is accordingly disposed of.

VII. In view of disposal of first appeal, pending civil application is

also disposed of.

( V. K. JADHAV, J.)

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