Bombay High Court
Sushama Rajendra Sagar And Ors vs Shankarrao Uttamrao Patil And Anr on 6 July, 2017
Bench: P.R. Bora
1 FA NO.3156 OF 2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3156 OF 2016
1) Smt. Sushma w/o. Rajendra Sagar,
Age: 36 years, Occu. Nil,
2) Kum. Rupika d/o. Rajendra Sagar,
Age: 13 years, Occu.: Education
3) Roshan s/o. Rajendra Sagar,
Age:10 years, Occu.: Education
4) Sau Mirabai w/o. Laxman Sagar,
Age:67 years, Occu.: Household
5) Shri Laxman s/o. Dharamdas Sagar,
Age: 71 years, Occu: Nil,
Appellant No.1 is legal Guardian of
Appellant Nos. 2 and 3.
All R/o. Kakasheth Lane, Taloda
Dist. Nandurbar ...APPELLANTS
(Orig. Claimants)
VERSUS
1) Shankarrao Uttamrao Patil,
Age: Adult, Occu: Dumper owner,
R/o. Saraswati Colony, Nandurbar
2) Bajaj Allianz Insurance Company Ltd.
Through Branch Manager,
Bombay - Agra road, Nashik
...RESPONDENTS
(Orig. Respondents)
...
Mr. Mayure Pramod C., Advocate for Appellants
Mr. S.G. Chapalgaonkar, Advocate for Respondent No.2
...
CORAM : P.R. BORA, J.
Dated: July 06, 2017
...
2 FA NO.3156 OF 2016
ORAL JUDGMENT :
1. The appellants have filed the present appeal seeking
enhancement in the amount of compensation as awarded to
them by the Motor Accident Claims Tribunal at Shahada, in
M.A.C.P. No.147 of 2009 decided on 29th of August, 2015.
Heard finally with consent.
2. The appellants had filed the aforesaid claim petition
claiming compensation on account of death of Rajendra Laxman
Sagar, in a vehicular accident happened on 26th of March,
2008, having involvement of a Dumper bearing registration No.
MH-39-C-116 owned by present respondent no.1 and insured
with present respondent no.2 Insurance Company. The
claimants had claimed compensation of Rs.7,00,000/- ( Rs.
seven lakhs). It was the contention of the appellants claimants
that deceased was serving with a private contractor as a
supervisor and used to earn around Rs.4,500/- per month. As
stated in the petition, the age of the deceased was 39 years at
the time of his death. It was the further contention of the
appellants that the deceased was also holding agricultural land
and was also carrying on milk business. The Tribunal, after
having assessed the evidence brought before it, awarded
compensation of Rs.6,20,000/- inclusive of No Fault Liability
compensation to the claimants. Dissatisfied with the amount
3 FA NO.3156 OF 2016
of compensation so offered, the appellants have preferred the
present appeal.
3. Shri Mayure, learned Counsel appearing for the
appellant, submitted that the Tribunal has erred in not
considering future prospects of the deceased while determining
the amount of dependency compensation and has also
committed an error in not awarding any amount to the
appellants claimants towards loss of estate and loss of
consortium. Learned Counsel submitted that the amount of
compensation, therefore, needs to be adequately enhanced.
Learned Counsel submitted that the income of the deceased
was duly proved by the claimants to the tune of Rs.4,500/- per
month and, as such, while determining the amount of
dependency compensation, at least 30 per cent of the said
income ought to have been added to the income and thereafter
only, the dependency compensation must have been assessed
by the Tribunal. Learned Counsel submitted that no amount
has been awarded by the Tribunal to the appellants towards
loss of consortium and loss of estate and the same also needs
to be awarded. Learned Counsel further submitted that while
determining the amount of compensation, another gross
mistake has been committed by the Tribunal by deducting one
4 FA NO.3156 OF 2016
third amount towards personal expenses of the deceased
ignoring that the number of dependents on his income was
more than three and, in such circumstances, not more than one
fourth amount could have been deducted from his gross
income.
4. Shri Chapalgaonkar, learned Counsel appearing for
the Insurance Company, submitted that in absence of any
cogent and sufficient evidence as about future prospects of the
deceased, the Tribunal has not committed any error in not
considering the said aspect. Learned Counsel was fair enough
in submitting that while determining the amount of dependency
compensation, having regard to the number of dependents,
only one fourth of the gross income of the deceased was liable
to be deducted. To that extent, according to the learned
Counsel, the compensation may be appropriately enhanced.
Learned Counsel further submitted that it is true that the
Tribunal has not awarded any compensation under the heads
of loss of estate and loss of consortium to the claimants and
that the said aspect may also be appropriately considered by
this Court. Learned Counsel submitted that in so far as the
amount of dependency compensation is concerned, except that
one third deductions were made, no further enhancement is
5 FA NO.3156 OF 2016
possible. Learned Counsel, therefore, prayed for appropriate
orders.
5. I have carefully perused the impugned judgment.
In order to prove the income of the deceased, the contractor
was examined by the appellants / claimants with whom the
deceased was lastly working. As has come in his evidence,
deceased was getting monthly salary of Rs.4,500/-. The
Tribunal has relied upon evidence of the said contractor and,
accordingly, held the monthly income of the deceased to the
said extent i.e. Rs.4,500/- per month. Though it was sought to
be canvassed by the learned Counsel for the appellant that the
Tribunal has failed in not considering the future prospects of the
deceased, I am not convinced with the argument so advanced.
As has been held by Division Bench of this Court in the case of
New India Assurance Co. Ltd. Vs. Smt.Alpa Rajesh Shah and
others ( 2014 (2) Mh.L.J. 17), in absence of specific pleading
and positive evidence in that regard, showing chances of future
prospects, as of right, the same cannot be claimed and cannot
be considered. Learned Counsel for the Insurance Company
also relied upon the judgment of the Honourable Apex Court in
the case of Chikkamma and Anr. Vs. Parvathamma and Anr. in
Civil Appeal No.(S) 3409 of 2017 ( arising out of SLP (C)
6 FA NO.3156 OF 2016
No.5587 of 2016), decided on 28th February, 2017, wherein,
in paragraph no.9 of the judgment, following observations are
made by the Honourable Apex Court:
"9. Taking into account the fact that the deceased was a self
employed person and also as the question with regard to award of
future prospects of a self employed person is presently pending
before a larger Bench of this Court and as some enhancement of
compensation has already been made by us, we are of the view
that in the facts of the present case, the claim for future prospects
ought not to be gone into by us. The said claim, therefore, is
refused. "
In view of the observations made by the Division Bench of
this Court in the case of Alpa Rajesh Shah, cited supra, and
observations as above made by the Honourable Apex court,
the claim for future prospects is not gone into by me.
6. In so far as deduction of one third of the amount of
total income of the deceased while determining the amount of
dependency compensation is concerned, the Tribunal seems to
have erred in not considering the fact that the number of
dependents on the income of the deceased was more than
three and, in such circumstances, only one fourth amount of his
total income was liable to be deducted towards his personal
expenses. To that extent, the amount of compensation needs
to be enhanced. As noted earlier, the deceased was earning
monthly salary to the tune of Rs.4,500/- which comes to
Rs.54,000/- per annum. Deducting one fourth of the said
7 FA NO.3156 OF 2016
amount from the said gross income and multiplying the said
amount by 15, which is the appropriate multiplier in the present
case, the amount of dependency compensation comes to
Rs.6,07,500/-. I hold the applicants entitled for the said
amount under the head of dependency compensation. I am
further convinced that the Tribunal has erred in not awarding
any amount to the claimants towards the head of loss of
consortium and in awarding a meager sum of Rs.10,000/-
towards loss of estate. I deem it appropriate to award
consolidated sum of Rs.2,00,000/- under the said heads to the
claimants. The Tribunal has already awarded a sum of
Rs.15,000/- towards funeral expenses and Rs.55,000/- towards
medical and transport expenses. The appellants claimants are,
thus, held entitled to Rs.8,77,500/- which, according to me, is
just and fair compensation payable to the claimants.
The impugned award stands modified to the aforesaid extent.
The appellants are entitled to the interest at the rate of 9 per cent
per annum on the enhanced amount of compensation from the date
of filing of the Claim Petition till realization. The Appeal is allowed in
the aforesaid terms. No order as to costs. Deficit Court Fees, if any,
be recovered from the claimants.
( P.R. BORA, J. )
...
agp/3156-16fa
