Bombay High Court
Ramhari S/O Namdeorao Tekode & 2 ... vs Smt. Nalini Wd/O Hemraj Gaikwad & ... on 6 December, 2017
Bench: P.N. Deshmukh
fa.307.09 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.307 OF 2009.
APPELLANTS: 1. Ramhari s/o Namdeorao Tekode,
aged about 48 years, Occu: Labour,
2. Sindhubai w/o Ramhari Tekode,
aged about 41 years, Occu: Household,
3. Ku.Gitanjali d/o Ramhari Tekode,
aged about 22 years, Occu: Education,
R/o Surali, Tq.Warud, Distt.Amravati.
: VERSUS :
RESPONDENTS: 1. Smt.Nalini wd/o Homraj Gaikwad,
aged about 29 years, Occu: Household,
r/o Bhaurao Rajerao Thoke, at Post Pala
Tq.Morshi, Distt.Amravati.
(Appeal is dismissed in default against
respondent no.1 as per R(J) order dated
2/4/2013.
2. The United India Insurance Co.
through its Divisional Manager, Near
Satish Motors, Badnera Road, Amravati.
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Mr.M.A.Sable, Advocate for the appellants.
Mr.M.R.Kalar, Adv. for respondent no.2.
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CORAM
: P.N.DESHMUKH, J.
DATE : 6th DECEMBER, 2017.
ORAL JUDGMENT :
1. This appeal takes exception to Judgment and Award
dated 29th February, 2008 passed by Member, Motor Accident
Claims Tribunal, Amravati in Claim Petition No.298 of 2005. By
this Award, total amount of compensation granted by Tribunal was
Rs.1,57,000/- inclusive the amount of Rs.50,000/- under 'No Fault
Liability. Out of the said amount, 40% amount is directed to be
paid to each appellant nos.1 and 2, respectively, who are parents of
deceased and balance 20% of amount is directed to be paid to
appellant no.3, sister of deceased.
2. Facts involved in the appeal can briefly be stated as
under :
On 17th August, 2005, deceased Yogesh Tekode was
proceeding on two-wheeler bearing registration No.MH-27/V-
2269 along with his friend Keshao Laxman Raut as pillion rider
from village Surali to Warud when Hemraj Gaikwad, husband of
respondent no.1, who was coming from opposite side on two-
wheeler bearing Registration No.MH-27/W-1243 along with two
pillion riders namely, Chhatrapati Gomkale and Sagar Bhujade in
high speed, in rash and negligent manner, gave dash to deceased
Yogesh Tekode due to which he lost control over his vehicle and in
an head-on-collision sustained grievous injuries and succumbed to
same. Hemraj Gaikwad also died in the same accident.
3. On the day of accident vehicle No.MH-27/W-1243
involved in the present incident, driven by Hemraj Gaikwad was
duly insured with respondent no.2 during the period from 26th
April, 2005 to 25th April, 2006 for which valid Cover Note
No.NRO/A/9691 was issued. As such, it is the case of appellant
that on the day of accident which took place on 17 th August, 2005
offending vehicle, owned by husband of respondent no.1, was duly
insured with respondent no.2 and as such both the respondents are
jointly and severally liable to satisfy the amount of compensation
which came to be calculated to the extent of Rs.7,20,000/-.
Appellants, for want of payment of requisite court fees stamp, had
restricted their claim to the extent of Rs.4,00,000/- only, and had
undertaken to pay the requisite court fees if appellants are held
entitled for enhanced compensation.
4. Appellants had claimed amount of Rs.7,20,000/- as just
compensation on the basis of monthly income of deceased to the
extent of Rs.5000/- and by applying multiplier of 17 and in
addition to it have added amount on the count of mental shock,
agony, sufferings, funeral expenses, etc.
5. Petition against respondent no.1 came to be dismissed
while respondent no.2 contested the same by filing written
statement, Exh.17 and had denied the monthly income as well as
insurance coverage for want of confirmation of policy and has
come out with the case that the accident took place due to the rash
and negligent driving of the deceased Yogesh Tekode himself and
therefore prayed that the petition be dismissed.
6. Learned Tribunal holding monthly income of deceased to
the extent of Rs.3000/- awarded compensation of Rs.3,12,000/-
and Rs.2000/- towards funeral expenses and held appellants
entitled for 50% of above amount with interest at the rate of 7.5%
holding that the accident occurred due to contributory negligence
of deceased Yogesh to the extent of 50%. Accordingly, appellants
are granted Rs.1,57,000/- inclusive amount of No Fault Liability as
aforesaid. Hence, this appeal by appellants/original claimants for
enhancement of amount of compensation.
7. Learned Counsel Shri M.A.Sable appearing for appellants
has submitted that the Tribunal had not considered fact of
appellants establishing monthly income of deceased to the extent
of Rs.5550/- on the basis of certificate issued by his employer
thereby establishing that the deceased was working as a driver and
on the date of accident was earning Rs.135/- per day as his salary
and in addition to that Rs.50/- as Bhatta.
Another point which is heavily canvassed is, learned
Tribunal has applied multiplier of 13 considering the age of the
parents of deceased and has thus contended that the view taken by
the Tribunal is contrary to law as it was necessary for the
Tribunal to apply multiplier according to the Rule laid down in the
case of Sarla Verma and ors. ..vs.. Delhi Transport Corporation
and anr. reported in (2009)6 SCC 121 and as per table given in
this case, appropriate multiplier should be of 18.
Third point which is canvassed is of sole negligence of
the deceased Hemraj Gaikwad, driver of the offending motor cycle
and to substantiate this submission learned Counsel invited
attention to evidence of appellant no.1 and documents being FIR,
Exh.26 and has contended that from above evidence it cannot be
said that accident occurred due to negligence of deceased and has
thus, contended that finding of the Tribunal holding deceased
negligent to the extent of 50% is without any basis. It is, therefore,
prayed that appeal be allowed.
8. Learned Counsel Shri M.R.Kalar, appearing for
respondent no.2 has submitted that the view taken by the Tribunal
holding deceased responsible for accident is just and proper and
for that purpose has referred to the contents of FIR, Exh.26 and has
submitted that in view thereof, it is amply established that
deceased has contributed to the commission of accident. It is
further submitted that the Court has rightly considered income to
the extent of Rs.3000/- per month and has applied suitable
multiplier considering the age of appellants and therefore,
contended that award needs no interference in appeal.
9. In the background of facts involved in the appeal and
submissions advanced by learned counsel for both sides, while
considering the issue of quantum, from evidence of appellant no.1
Ramhari Tekode, father of the deceased, it has come on record that
on the day of accident on 17th August, 2005 deceased was working
as a driver with one Shrirampant Jagoji Bobde, resident of
Karajgaon (Gandhighar), Tq.Warud, Distt.Amravati on his Tata
Sumo Vehicle Registration No.MH-15/7171 and was earning
Rs.5000/- per month inclusive Bhatta and has placed on record
certificate, Exh.35 issued by his employer. He has further deposed
that deceased was possessing valid driving licence. In his cross-
examination, it has come on record that deceased Yogesh was
working as a driver and has denied that he was paid Rs.70/- per
day. He further denied that deceased was not earning Rs.5000/-
per month. He also denied that no vehicle is owned by
Shrirampant Bobde as suggested to him. Admittedly, appellant
no.2 had not led any evidence to dislodge the claim of appellants.
10. In the background of evidence of appellant no.1, perusal
of Certificate, Exh.35 establishes that at the time of accident
deceased was working as a driver earning Rs.135/- per day and
was paid Rs.50/- per day in addition to above amount as Bhatta.
Having considered oral and documentary evidence as aforesaid,
and in absence of any other evidence on record by respondent
no.2, appellants can be said to have established fact of monthly
income of deceased to the extent of Rs.5550/-.
11. Though respondent no.2 in its written statement had
denied insurance coverage for want of confirmation of insurance
Policy of two-wheeler involved in the accident, from the Cover
Note, Exh.32 on record it is established that vehicle bearing
Registration No.MH-27/04/64717 is duly insured in the name of
deceased Yogesh Tekode for the period from 16 th November, 2004
to 15th November, 2007 and as such, same was valid on the date of
accident which took place on 17th August, 2005. From the driving
licence filed below Exh.24, deceased is found issued with lilcence
entitling him to drive light vehicle and the licence was valid on the
day of accident.
Above facts even otherwise are not seriously disputed by
respondent no.2.
12. Having considered above evidence, therefore, it is found
that the appellant has successfully established monthly income of
deceased to the extent of Rs.5550/- and that deceased on the day
of accident was riding the motor cycle having valid driving licence
and that vehicle was duly insured with respondent no.2 at the time
of accident.
13. With regard to second submission advanced on behalf of
the appellants about finding of the Tribunal holding deceased
equally negligent with that of rider of another motor cycle involved
in the accident, on perusal of evidence of appellant no.1 it has
come on record that on the day of incident deceased was
proceeding on Motor Cycle No.MH-27/V-2269 in moderate speed
by observing rules of the road and on his reaching Surai Road,
motor-cycle bearing registration No.MH-27/W-1243 since was
driven by Hemraj Gaikwad in rash and negligent manner, while
coming from opposite direction, gave dash to the vehicle of
deceased and accident took place. Admittedly, appellant no.1
Ramhari is not an eyewitness to the incident and as such, his
evidence as aforesaid cannot be accepted as it is. There is no other
evidence led by either of the parties on the point of negligence. In
the circumstances, the only recourse which can be adopted is to
cosndier further documents on record.
14. On perusal of FIR, Exh.26 which came to be lodged on
the day of accident, in which though it is stated that accident took
place due to contributory negligence of drivers of both the motor
cycles, admittedly, there is no investigation carried out by police on
this aspect and as such, there is nothing on record as to on what
basis the Tribunal has reached to finding holding drivers of both
the motor cycles to be negligent. On the contrary, from the
contents of FIR itself it is found that vehicle bearing Registration
No.MH/27-W-2269 driven by deceased Hemraj Gaikwad was with
two pillion riders namely, Chhatrapati Namdeo Gomkale and Sagar
Vishnu Bhujade. In that view of the matter, evidence of appellant
no.1 though he is not an eye witness to incident finds
corroboration that Hemraj Gaikwad since was travelling on motor
cycle with two pillion riders lost his control over it and gave dash
to motor cycle of deceased causing accident.
15. In view of above discussed evidence there is nothing to
hold that accident took place due to the contributory negligence to
the extent of 50% as held by the Tribunal. However, in the
absence of any specific evidence, since not led even by appellants,
and considering the gravity of accident wherein riders of both the
motor cycle died, it can safely be held that the impact of both the
vehicle has to be grave and that can only be, when both the
vehicles are driven in high speed negligently, however, finding that
other motor-cycle involved in the accident was occupied by three
persons, negligence to the extent of 25% only, can be attributed to
deceased Yogesh Tekode holding the accident as an outcome of
contributory negligence.
16. In view of above discussed facts and evidence on record
appellants are thus, found entitled for just compensation as follows
:
Monthly income Rs.5550/- x 12 = Rs.66,600/-, after
deducting one-third amount from it, for his personal expenses,
yearly dependency of claimants comes to Rs.44,400/-. Having
considered age of deceased of 24 years, as per Chart in the case of
Sarla Verma, cited supra, multiplier of 18 is attracted. Thus, on
multiplying Rs.44,400/- x 18 = Rs.7,99,200/-. Thus, appellants
are entitled for said amount.
In addition to above amount since deceased was self-
employed having fixed income and below 40 years of his age, as
per recent pronouncement in the case of National Insurance
Co.Ltd. ..vs.. Pranay Sethi and ors reported in 2017 SCC OnLine
SC 1270, appellants are entitled for 40% of the amount on
established income, towards loss of future prospect which is
calculated to the extent of Rs.3,19,680/- which makes said amount
of compensation to the extent of Rs.7,99,200/- + Rs.3,19,680/- +
Rs.15000/- for funeral expenses which comes to Rs.11,33,880/-.
On deducting 25% from the said amount, appellants/claimants are
held entitled for just compensation of Rs.8,50,410/- with interest
thereon at the rate of 7.5% P.A. from the date of petition till its
realization in accordance to the apportionment of amount by the
Tribunal, subject to their paying deficit court fees on the enhanced
amount of compensation in this Court. Appeal is accordingly
allowed in above terms.
JUDGE.
Chute
