Bombay High Court

Smt. Ashabai W/O Dashrath Thorat vs Sanjay S/O Bandu Bhalerao & 2 Ors on 8 December, 2017

Bench: S.B. Shukre

        J-fa129.08.odt                                                                                                     1/7 


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


                                      FIRST APPEAL No.129 OF 2008

        Smt. Ashabai w/o. Dashrath Thorat,
        Aged 40 years,
        Occupation : Household,
        R/o. Umarkhed, Tahsil Umarkhed,
        District Yavatmal.                                                           :      APPELLANT

                           ...VERSUS...

        1.    Sanjay s/o. Bandu Bhalerao,
               Aged 27 years,
               R/o. Soit,
               Tahsil Umarkhed, District Yavatmal.

        2.    Suryakant s/o. Punjaram Kamthewad,
               Aged : Adult, R/o. Bramhangaon,
               Tah. Umarkhed, District : Yavatmal.

        3.    The Oriental Insurance Company Ltd.,
               Branch : Yavatmal,
               Through Divisional Manager,
               Amravati.                                                              :      RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri P.D. Meghe, Advocate for the Appellant.
        None for Respondent Nos.1 and 2.
        Shri S.K. Pardhy, Advocate for the Respondent No.3.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 8 DECEMBER, 2017.

ORAL JUDGMENT :

1. This appeal questions the legality and correctness of the

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judgment and order dated 6th February, 2007, rendered in Motor

Accident Claim Petition No.4/2005 to the extent of quantum of

compensation determined by the Tribunal. The petitioner is the mother

of deceased Amol, who died in a vehicular accident involving two

vehicles on 21.8.2004. He was working as a cleaner on one of those

vehicles. It was a Jeep bearing registration No. MH-29-C-698. The other

vehicle involved in the accident was also a Commander Jeep bearing

registration No. MTN 8653. There was a head on collision between these

two vehicles. As a cleaner working on Jeep bearing No. MH-29-C-698

deceased Amol then aged about 23 years, as claimed by the petitioner,

used to earn Rs.5,000/-. He used to contribute towards maintenance of

his family. Because of his untimely loss, the petitioner filed a case under

Section 166 of the Motor Vehicles Act (in short, "MV Act") seeking

compensation for the same.

2. The claim petition was, however, filed against only driver,

owner and the insurer of one vehicle bearing registration No. MTN 8653

involved in the accident and the driver, owner and the insurer of the

other vehicle were not joined as parties.

3. The petition was resisted by all the respondents. They

submitted that the accident occurred only for the rashness and

negligence shown by the driver of the other Jeep bearing registration

No. MH-29-C-698. The respondent No.3 also denied that deceased

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Amol was working as a cleaner on the jeep.

4. On merits of the case, the Tribunal partly allowed the

petition and granted compensation of Rs.1,26,000/- together with

interest at the rate of 6% p.a. from the date of petition till realization.

The petitioner not being happy with the quantum of compensation, so

determined by the Tribunal, has preferred the present appeal.

5. I have heard Shri P.D. Meghe, learned counsel for the

appellant and Shri S.K. Pardhy, learned counsel for respondent No.3.

Nobody is present on behalf of respondent Nos.1 and 2 though duly

served. I have carefully gone through the record of the case including

the impugned judgment and order.

6. Now, the only point which arises for my determination is :

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

7. In the present case, so far as the aspect of negligence is

concerned, I find that there is some mistake committed by the Tribunal in

recording finding on the first issue. In paragraph 6 of the impugned

judgment and order, a finding on the first issue, which was about

rashness and negligence of the jeep bearing registration No. MTN 8653,

has been recorded. It is in the affirmative although, on a reading of the

entire judgment as a whole, I find that the Tribunal in fact has recorded a

different finding, fastening the liability for occurrence of the accident on

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the drivers and owners of both the vehicles involved in the accident and

not only that, the Tribunal has also fixed the percentage of liability of the

respective vehicles. In paragraph 16, it has been found that both these

drivers were responsible for causing of accident and their liability for the

same was on equal basis. Accordingly, the Tribunal only granted 50% of

the amount of compensation determined by it under the impugned

judgment and order. Nobody has challenged these findings ultimately

recorded by the Tribunal and therefore, now they have attained finality.

8. About the quantum of compensation, yes I would say, there is

great substance in the argument of learned counsel for the appellant. Of

course, learned counsel for the respondent No.3 has submitted that there

has been no reliable evidence adduced on record to prove the income of

the deceased. But, one has to understand the fact that the petitioner

having established that her deceased son was working as a cleaner on

one of the jeeps, could not have been in a position to bring on record any

documentary evidence in the nature of certificate of income or salary slip

issued by the owner. The job of a cleaner is such for which, usually, the

owners of the vehicles do not keep any record and do not issue any

certificates or salary slips. Therefore, it would be appropriate for this

Court to consider the oral evidence of the appellant for its reliability or

otherwise.

9. On going through the evidence of the appellant, I find that

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her son used to earn Rs.5,000/- per month as a cleaner on the jeep has

been specifically denied by the respondent No.3-insurance company.

However, her other assertion that her son was working as a cleaner has

not been so denied by the respondent No.3. Therefore, what is

established in the present case is at least the fact that deceased Amol was

working as a cleaner. Once it is found that he was so working, it would

not be very difficult to arrive at a reasonable figure by some guesswork of

his monthly income. In the year 2004, it could have been something like

Rs.3,000/- per month, which I take to be the basis for working out

further calculations.

10. From the monthly income of Rs.3,000/-, one half would have

to be deducted on account of personal expenses. So annual income of

the deceased would be Rs.18,000/- per month. At the time of accident,

according to the appellant deceased Amol was 23 years old, but the

school certificate vide Exh.-48 adduced in evidence by her discloses that

his date of birth was 5.10.1985 showing that deceased Amol was 19

years old at the time of accident. In any case, whether 19 years or 23

years, as per case of Sarla Verma (Smt.) and others vs. Delhi

Transport Corporation and another, reported in (2009) 6 SCC 121

the multiplier would be the same and it is of '18'. When it is applied, the

dependency at the time of death comes to Rs.3,24,000/-. The case of

National Insurance Company Limited vs. Pranay Sethi and others ,

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delivered in Special Leave Petition (Civil) No.25590/2014 , decided on

st October, 2017. would mandate that the deceased falling in the

category of persons on fixed salary and below 40 years of age, 40% of the

dependency amount at the time of death would have to be further added

as his future prospects and amount of Rs.30,000/- under the heads of

loss of love and affection and funeral expenses would also have to be

added. Thus, calculated, the total amount of compensation payable to

the appellant would be as under :

Income per month Rs.3,000/-

deduct 50% of Rs.3,000/-.

Annual Income (Rs.1,500/- X 12) = Rs.18,000/-

                           As per Sarla Verma's case
                           appropriate multiplier :                       X 18
                                                                     -----------------
                                                                     Rs.3,24,000/-
                           Add : 40 %                                Rs.1,29,600/-
                           Add : i)  Loss of love and affection      Rs.   15,000/-
                                    ii)  Funeral Expenses            Rs.    15,000/-
                                                                    ---------------------
                                                                     Rs.4,83,600/-
                                                                    ========