Subhashrao Marotrao Kuthe And ... vs Anilkumar S/O Panvir And Others
2017 Latest Caselaw 5818 Bom

        J-fa886.17.odt                                                                                                     1/8  


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.886 OF 2017


        1.    Subhashrao Marotrao Kuthe,
               Aged 51 years,
               Occupation : Labour,
               R/o. Talegaon Thakur, 
               Tq. Teosa, Distt. Amravati.

        2.    Smt. Latabai Subhashrao Kuthe,
               Aged 47 years,
               Occupation : Household,
               R/o. Talegaon Thakur,
               Tq. Teosa, Distt. Amravati.                                           :      APPELLANTS

                           ...VERSUS...

        1.    Anilkumar s/o. Panvir,
               Aged 21 years, Occupation : Driver,
               R/o. Gaganwas, Rajgarh,
               Churu Rajasthan
               (Driver of Trailer bearing no.C4-O4-JA-1397)

        2.    Dilip Singh Rao,
               Aged adult,
               R/o. Pratiksha Road Lines,
               Tatibandh Raipur (CG).
               (Owner of Trailer bearing No.C4-04-JA-1397)

        3.    The ICICI Lombard General Insurance
               Co. Ltd., through its Divisional Manager,
               5th Floor Landmark,Wardha Road, 
               above Big Bazar, Ramdaspeth, 
               Nagpur-440 010.                                                       :      RESPONDENTS

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri S.S. Alaspurkar, Advocate for the Appellants.
        None for respondent Nos.1 and 2,
        Shri R.D. Bhuibhar, Advocate for the Respondent No.3.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-




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                                                       CORAM  :   S.B. SHUKRE, J.

th DATE : 10 AUGUST, 2017.

ORAL JUDGMENT :

1. Heard.

2. Admit. Record and proceedings are already received. Heard

finally by consent.

3. This is an appeal preferred against the judgment and order

dated 30th March, 2015, rendered in Motor Accident Claim Petition

No.576/2008, by the District Judge-5 and Member, Motor Accident

Claims Tribunal, Amravati. The appeal has been preferred only on the

point that the compensation awarded by the Tribunal under Section 166

of the Motor Vehicles Act is inadequate and not a just compensation in

the facts and circumstances of the case.

4. I have heard Shri S.S. Alaspurkar, learned counsel for the

appellants and Shri R.D. Bhuibhar, learned counsel for the respondent

No.3-Insurance Company. None appears for the respondent Nos.1 and 2,

though duly served on final disposal of the appeal.

5. The only point which arises for my determination is :

Whether the compensation awarded by the Tribunal is just and proper ?

6. As far as concerned the occurrence of the accident and also

the facts relating to deceased Swapnil dying in the accident, which

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occurred at about 9.30 p.m. of 5.12.2008 on Talegaon to Nagpur Road,

there is no dispute. The Matador rammed on a stationary trailer bearing

registration No.CG-04-JA-1397, driven by respondent No.1 and owned

by respondent No.2 and insured with respondent No.3. The Tribunal

found that this accident occurred only because of the negligence shown

by the driver and owner of the trailer involved in the accident and that is

why, it held the driver, owner as well as insurance company as liable to

pay compensation to the claimants, who are the appellants before this

Court. This finding now has also been accepted by the respondent No.3

and driver and owner of the trailer, as no appeal against it is filed by

them. With such admitted facts being there on record, the inquiry in this

appeal has now been restricted to only the adequacy or otherwise of the

compensation granted by the Tribunal.

7. Learned counsel for the appellants submits that income of

the deceased, who was a labourer, ought to have been taken at the rate

of Rs.4,500/- per month as held in the cases of Syed Sadiq etc. vs.

Divisional Manager, United India Ins. Co., reported in AIR 2014 SC

1052 and Ramchandrappa vs. The Manger, Royal Sundaram Alliance

Insurance Company Limited, reported in AIR 2011 SC 2951. Shri R.D.

Bhuibhar, learned counsel for respondent No.3 disagrees. He submits

that there is no evidence documentary or otherwise, brought on record

by the appellants to prove that the deceased was working as a labourer

and was earning Rs.5,000/- per month or even Rs.4,500/- per month.

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8. The submission of learned counsel for the respondent No.3,

in my view, cannot be upheld for the reason that the evidence of PW 1,

one of the claimants, and father of the deceased that he was a labourer is

cogent and deserves outright acceptance. Although, there is a suggestion

of denial given to this witness by the learned counsel for the respondent

No.3 that the claimants falsely stated before the Court that deceased was

working as a labourer, I find that just because such denial of the

assertion of the claimants is there, the evidence of the claimants cannot

be rejected. After all, deceased Swapnil was aged about 22 years, had

completed his education upto 9th standard only and, therefore, it is

difficult to believe that with such education and the quite mature age of

22 years, any able-bodied person would sit idle and would not earn

anything. Therefore, the assertion of his father-PW 1, that deceased

Swapnil was working as a labourer has to be accepted as true. Besides,

the Tribunal has also recorded a positive finding in this regard and there

is no challenge made to this finding by the respondent No.3. Therefore, I

accept the evidence of the claimants that at the time of the accident,

deceased Swapnil was working as a labourer.

9. Once we find that the deceased was working as a labourer, it

would be very easy to estimate the income that such a deceased would

be earning at the time of accident. In the case of Syed Sadiq (supra) the

accident had occurred in the year 2008, just as in the present case and

the Hon'ble Apex Court found that the rates of the wages around the

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time of the accident ranged from Rs.100 to 150/- per day and, therefore,

Hon'ble Apex Court took a view in that case that income of the deceased

must have been about Rs.4,500/- per month. Similar are the

observations of the Hon'ble Apex Court in Ramchandrappa (supra).

Therefore, in the instant case also, I find no difficulty in holding that the

monthly income of the deceased, who was working as a labourer at the

time of accident, was of Rs.4,500/- per month. Undeniably, deceased

was an unmarried person and, therefore, from his monthly income, 50%

of the amount on account of personal expenses would have to be made.

His age at the time of accident, without any dispute, was of 22 years and

therefore, as per the law laid down by the Hon'ble Apex Court in the case

of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation

and another, reported in (2009) 6 SCC 121 as well as Amrit Bhanu

Shali and others vs. National Insurance Co. Ltd., reported in 2012 AIR

SCW 3901, the age of the deceased would have to be considered as

relevant and for such a age, the appropriate multiplier would be of 18.

By applying this multiplier, one can compute the total loss of dependency

of the appellant.

10. In addition to the total loss of dependency, the appellants

would also be entitled, being parents of the deceased, some additional

compensation on non-pecuniary heads, such as loss of love and affection

at the rate of Rs.50,000/- per parent, loss of estate of Rs.50,000/- for

both parents, loss of expectations of life for the deceased and his family

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at the rate of Rs.50,000/- and funeral expenses at the rate of

Rs.25,000/-. As held in the case of Neeta and others vs. Div. Manager,

MSRTC, Kolhapur, reported in I (2015) ACC 695 (SC) and Sarla Verma

(supra).

11. So, the total amount of compensation which in my opinion is

just and proper compensation payable by the respondent by jointly and

severally to the appellants would be as under :

                           i) Monthly Income                                         :                   Rs.4,500/-

                           ii) Annual Income                                         :                   Rs.54,000/-

                           iii) Deduct 50% for

                                 Personal expenses from (iii)                        :                   Rs.27,000/-



                           v) Multiply (iii) X (iv)                                  :                   4,86,000/-

                           Total loss of dependency                                               --------------------
                                                                                                    Rs.4,56,000/-

                           Add to total loss of dependency

                           a) Loss of Love and affection                             :                   Rs.1,00,000/-

                           b) Loss of Estate                                         :                   Rs.50,000/-

                           c) Loss of Expectations                                   :                   Rs.50,000/-

                           d) Funeral Expenses                                       :                   Rs.25,000/-

                                                                                                         =======

Total compensation (Rs.4,56,000 + Rs.2,25,000) : Rs.6,81,000/-

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12. At this stage, learned counsel for the appellants submits,

relying upon the case of Neeta (supra), the rate of interest should be

given at the rate of 9% p.a. from the date of filing of the application till

the payment. Of course in Neeta's case the Hon'ble Apex Court has

granted rate of interest at the rate of 9% p.a. by following its decision in

the case of Municipal Corporation of Delhi, Delhi vs. Uphaar Tragedy

Victims Association and others, reported in (2011) 14 SCC 481. In

Uphaar Tragedy Victims Association and others case, the compensation

was awarded in public law remedy, as observed in paragraph 65 of the

Judgment and, therefore, the Hon'ble Apex Court thought it fit to grant

interest at the rate of 9% p.a. In Neeta's case also, the compensation was

awarded against a public transporter, who was supposed to be more

careful than the private transporter in discharging its duty and that was

the reason why, the Hon'ble Apex Court appears to have granted rate of

interest at the rate of 9% p.a. However, in the case of Josphine James

vs. United India Insurance Co. Ltd. and another, reported in AIR

2014 SC (Supp) 1511, which was a case not in public law remedy, but

private law remedy, the principle that was followed while granting rate

of interest appears to be of the prevailing rate of interest at the time of

accident. The accident in that case had occurred in the year 1998. In the

present case, the accident had taken place in the year 2008. There was a

substantial change in the rate of interest over a period of time from 1998

onwards and in the year 2008, the prevailing rate of interest varied from

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7% to 8% p.a. Therefore, in the present case, the rate of interest which

can be appropriately granted would be about 7% or 8% p.a. The

Tribunal has already granted rate of interest as 7.5% p.a. and I think in

the facts and circumstances of the instant case, it has been rightly

granted. Therefore, the amount granted under this order shall carry the

interest at the rate of 7.5% p.a. from the date of application till

realization.

13. It is thus declared that appellants are entitled to receive total

compensation Rs.6,81,000/- with interest at the rate of 7.5% from the

date of application till realization as per this order.

14. The point is answered in the above terms and the appeal is

partly allowed accordingly.

15. The impugned judgment and order stand modified in the

above terms.

16. The respondent Nos.1 to 3 shall jointly and severally pay the

amount of compensation as determined under this order together with

the rate of 7.5% within three months from the date of payment of the

Court fees on the amount of enhanced compensation.

17. The appellants shall pay the additional Court fees within one

month from the date of order.

18. The parties to bear their own costs.

JUDGE okMksns