Mangala Wd/O. Gajanan Kale And ... vs Mahadeo S/O. Ashok Gawane And ...
2017 Latest Caselaw 4130 Bom

                                                                                                           fa-j 765-16.odt
                                                            1


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

                              FIRST APPEAL NO. 765 OF 2016

 1]        Mangala wd/o Gajanan Kale
           Aged about 46 years, Occ: Household                                              

 2]        Nitin s/o Gajanan Kale
           Aged about 24 years, Occ.: Education

 3]        Ashish s/o Gajanan Kale
           Aged about 18 years, Occ.: Education
           All R/o at Shidaji Vetal Patur,
           Tq. Patur, District- Akola      ....... APPELLANTS.
                                                   (Ori.Claimant)
                 ...V E R S U S...

 1]        Mahadeo s/o Ashok Gawane
           Aged about 23 years, 
           Occ.: Driver of TATA Indica Car 
           No. MH-44/B-0449
           R/o Murambi, Tq. Ambejogai
           District-Beed.

 2]        Atmaram s/o Limbaji Gitte
           Aged-Adult, Occ.: Owner of 
           Tata Indica Car No. MH-44/B-0449
           R/o Nandagaul, Tq. Parali Vaijanath,
           District-Beed.

 3]       The Oriental Insurance Co.Ltd.,
          Through its Divisional Manager,
          R/o Rayat Haveli, Old Cotton Market,
          Akola.                                    .......RESPONDENTS.
 -------------------------------------------------------------------------------------------
          Shri. S. D. Chopde, Advocate for Appellants.
          Shri. S. N. Dhangare, Advocate for Respondent no. 3.  
 -------------------------------------------------------------------------------------------

           CORAM:  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

DATE : 6 th JULY, 2017.

fa-j 765-16.odt

ORAL JUDGMENT

This appeal is preferred by the original claimants

against the Judgment and Order passed by the Chairman, Motor

Accident Claims Tribunal, Akola in M.A.C.P. No. 47/2012 on

14.10.2015. The only question raised for consideration is whether

the compensation awarded by the Tribunal is just, fair and

adequate or whether it needs to be enhanced?

2] Though notice of the appeal was duly served on

respondents for final disposal, respondent nos. 1 and 2 remained

absent. Respondent no.3 appeared through counsel, Shri.

Dhanagare. However, learned counsel for respondent no.3 absent

consistently and as the issue involved in the appeal is very short

one, on the submissions advanced by learned counsel for

appellants and after going through the Judgment of the Tribunal

it is being decided.

3] Deceased Gajanan was the husband of appellant no.1

and the father of appellant nos. 2 and 3. He has succumbed to

death in the vehicular accident on 15.2.2012, when he was

proceeding on his motorcycle and the TATA Indica Car

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MH-44/B-0449 coming from opposite direction, gave dash to him.

Respondent no.1 was driver, respondent no.2 was the owner of

TATA India Car and respondent no.3 was the insurer. Appellants,

therefore, filed claim petition seeking compensation of

Rs.10,00,000/- for the untimely death of Gajanan.

4] Respondents appeared before the trial Court and

resisted the petition. After appreciation of the evidence on record.

The Tribunal was pleased to hold that the cause of accident was

rash and negligent driving of the car and respondent nos. 1 to 3

were therefore, jointly and severally liable to pay compensation of

Rs.6,64,000/- to the appellants with interest @ 6% per annum

thereon from 4.3.2014 till realization.

5] Respondents have not challenged this impugned

Judgment and Order of the Tribunal. However, appellants are

aggrieved on account of inadequate amount of compensation

awarded by the Tribunal.

6] As per the facts on record, deceased was working as

Choukidar in Mahabeej and drawing salary of Rs.16,000/- per

month. However, the finding of the tribunal in paragraph-11

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shows that as per the pay sheet, his salary was found to be

Rs.11,263/-. Hence, after deductions of the taxes, the Tribunal

considered his salary to be Rs.10,000/- per month. Learned

counsel for appellants has not disputed about the net income of

the deceased as Rs.10,000/- per month. However, his grievance is

to the extent that the Tribunal has deduced only 1/3 rd of the said

amount towards personal expenses of the deceased and arrived at

figure of Rs.6500/- per month towards loss of dependency.

According to learned counsel for appellants, the Tribunal has not

considered the dependency of the appellants and refused to

consider dependency of the sons on the count that sons have

become major. In my considered opinion, as claimant nos. 4 and 5

in the petition who were the parents of deceased were already

dead, hence, their names were also deleted, the question of their

dependency does not arise. Even if dependency of sons is now

considered, 1/3rd of the gross income of the deceased is rightly

deducted by the Tribunal towards personal expenses of the

deceased and correctly held that the loss of dependency comes to

Rs.6,500/- per month, which is Rs.78,000/- per year.

7] The grievance of learned counsel for appellant is also

in respect of multiplier applied. It is submitted that as the

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deceased was of 55 years, the multiplier would be 11. However,

Tribunal has applied multiplier of '8'. The evidence on record

proves that on the date of accident which took place on

15.2.2012, the deceased has crossed the age of 55 years, as his

birth date is proved to be 19.5.1956. Hence, in view of the

judgment of the Hon'ble Apex Court in the case of "Sarla Verma

Vs. DTC, (2009) 6 SCC 121", the appropriate multiplier would be

"9". Hence, the total loss of dependency comes to Rs.78,000/-. If it

is multiplied by '9' it comes to Rs.7,20,000/- in place of

Rs.6,24,000/- as arrived by the Tribunal.

8] There also appears some substance in the grievance,

raised by learned counsel for appellants in respect of the amount

which is awarded by the Tribunal towards the additional heads of

compensation. The Tribunal has awarded the amount of

Rs.15,000/- towards loss of consortium, Rs.10,000/- for the loss

of estate and love and affection and Rs.15,000/- towards funeral

charges. However, now in view of the recent judgment of Hon'ble

Apex Court in the case of "Rajesh and others Vs. Rajbir Singh

and others, (2013) 9 Supreme Court Cases 54", this amount

needs to be enhanced to Rs.1,00,000/- towards loss of

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consortium, to appellant no.1, Rs,10,000/- towards loss of estate

and love and affection to respondent nos.2 and 3, Rs.25,000/-

towards funeral expenses. Thus, total amount of compensation to

which the appellants become entitled to is Rs.8,37,000/-.

9] The appellants are also having grievance about the

award of interest from 4.3.2014 only. It is submitted that it should

have been from the date of filing of the petition, which was

31.3.2012. However, the Tribunal in its judgment in paragraph-12

has given the detail reasons as to how the matter was delayed on

account of the appellants not paying the court fees and also not

taking the steps in time for deleting the name of claimants nos. 4

and 5 in filing amended copy of the Tribunal. Therefore, as the

matter was delayed till 4.3.2014, the appellants were held not

entitled for interest for the period for which delay was caused by

them. Having regard to these facts on record no fault can be found

in the impugned judgment of the Tribunal on that score.

10] In the result, the appeal is partly allowed.

The impugned Judgment and Order of the Tribunal is

modified to the extent that appellants are held entitled for

compensation of Rs.8,37,000/- inclusive of N.F.L. amount, with

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interest, as awarded by the Tribunal.

Rest of the judgment of the Tribunal is confirmed.

The appeal is disposed of in above terms, with no

order as to costs.

JUDGE

RGIngole