Smt.Laxmi Wd/O Ashok Janage vs Bharatsing Dikshit And 2 Ors
2017 Latest Caselaw 4177 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No.  514 of 2005



Appellant               :          Smt Laxmi wd/o Ashok Janage, aged 

                                   about 26 years, Occ: Household, resident

                                   of c/o Smt Kamalabai Durge, Bhiwapur

                                   Ward, Chandrapur

                                   versus

Respondents             :           1) Bharatsingh Dikshit, aged about 60

years, Occ: Business, resident of Near Post

Office, Chandrapur

2) National Insurance Co. Ltd., through its

Branch Manager, Chandrapur Branch,

Chandrapur

3) Malleshwar Bakloo Janage, aged about

60 years, resident of Ambedkar Ward,

Ballarshah, District Chandrapur

3-a) Naresh Malleshwar Janage, aged adult,

resident of Ambedkar Ward, Ballarshah,

District Chandrapur

3-b) Shankar Malleshwar Janage, aged

adult, resident of Ambedkar Ward,

Ballarshah, District Chandrapur

Ms P. M. Chandekar, Advocate for appellant

Shri M. P. Khajanchi, Advocate for respondent no. 1

None appears for respondents no. 2 and 3

Coram : S. B. Shukre, J

Dated : 7th July 2017

Oral Judgment

1. This is an appeal filed against the judgment and order dated

29th August 2000 passed by the Member, Motor Accident Claims Tribunal,

Chandrapur in Motor Accident Claim Petition No. 83 of 1998.

2. I have heard Ms P. M. Chandekar, learned counsel for the

appellant and Shri Mohit Khajanchi, learned counsel for respondent no. 1.

None appears for respondents no. 2 and 3. I have also gone through

record and proceedings of the case.

3. The only point that arises for my determination is -

Whether the compensation awarded by the Motor Accident

Claims Tribunal, Chandrapur is just and proper ?

4. An application under Section 166 of the Motor Vehicles Act,

1988 claiming compensation of Rs. 200,000/-, was filed by the appellant

against the respondents. It was for making good the loss to her on

account of death of her husband deceased Ashok in an accident. While

the truck bearing registration No. MTG-1616 was standing stationary on

Ghugus-Chandrapur Road near Shegaon Fata, a jeep bearing registration

No. MP-22/A/2151 by which deceased Ashok was travelling rammed into

the stationary truck. The accident occurred on 13.2.1995 at about 7.30

pm. The jeep was driven by one Patru rashly and negligently. Husband

of the claimant by name Ashok died in the said accident on the spot

because of impact of collision between the two vehicles. The jeep was

owned by respondent no. 1 and insured with respondent no. 2.

Respondent no. 3, father-in-law of the claimant, died during the

pendency of claim petition and his legal heirs viz. respondents no. 3-a and

3-b were brought on record. The compensation as per the impugned

judgment and order has been awarded only to the appellant and not to

the deceased father-in-law of the appellant. Therefore, the legal heirs of

deceased respondent no. 3 are only formal parties to this appeal.

5. This appeal raises two grounds of challenge. One is of

applying lower multiplier of "11" and the other is of not taking into

account the monthly income of Rs. 1800/- of deceased Ashok for

computing the total amount of compensation payable in the instant case.

According to learned counsel for the appellant, the appellant had stated

on oath before the Tribunal that her deceased husband was a motor

mechanic working in Aimco Private Company and was getting monthly

salary of Rs. 1800/-. She submits that this evidence was not considered

by the Tribunal and only on the basis of some assumption, the Tribunal

held that the income of the deceased could not be considered to be more

than the minimum rate of daily wages of Rs. 40/- prevailing at the

relevant time.

6. Learned counsel for respondent no. 1 submits that

appropriate order be passed.

7. Sofar as the finding recorded regarding income of deceased

Ashok is concerned, I do not see any perversity or illegality in the same. It

is an admitted fact that the appellant did not produce any salary

certificate to that effect. It was her pleading that her deceased husband

was in the employment of one private company and was getting monthly

salary of Rs. 1800/-. This pleading of the appellant has been specifically

denied by respondent no. 2. Therefore, it was necessary for the appellant

to have produced in evidence either salary certificate or at least some

evidence in the nature of deposition of some employee of that Company.

That has not been done by the appellant. So, the Tribunal was left with

no other alternative but to consider the income of deceased Ashok to be

equivalent to a daily wage earner. The rate of daily wages prevailing at

the relevant time was of Rs. 40/- and it has been rightly considered by the

Tribunal.

8. It is also the contention of learned counsel for the appellant

that 1/3rd income from the monthly income of the deceased ought to

have been deducted and not less than 1/4th income should have been

deducted. I am not inclined to accept the argument for the reason that

family of the deceased comprised not more than of three persons.

Therefore, 1/3rd deduction made by the Tribunal is consistent with the

settled position and I see no reason to interfere with the same.

9. As regards the objection on the applicability of multipler, I

find that there is substance in the same. Now, the controversy in this

regard has been settled after the judgment of Hon'ble Apex Court in Sarla

Verma & ors v. Delhi Transport Corporation & anr reported in (2009)

6 SCC 121. The evidence available on record shows that at the time of

accident, aged of the deceased was 30 years. Sarla Verma & ors v. Delhi

Transport Corporation & anr (supra) judgment has laid down that age of

the deceased would have to be considered for appropriate multiplier and

for the age group of 25-30 years, the multiplier would be "17". This

multiplier should have been applied in the instant case. But, it was not

and instead, multiplier "11" was applied. The Tribunal has gone wrong

on this count and there is need for interference with the determination of

the Tribunal on the appropriate multiplier. By following the judgment in

the case of Sarla Verma & ors v. Delhi Transport Corporation & anr

(supra), I find that multiplier of "17" should be appropriate multiplier and

it deserves to be applied in this case. Yearly dependency has been rightly

found at Rs. 9720/- and to this amount, multiplier of "17" would have to

be applied. Thus, the loss of dependency would come to Rs. 1,65,240/-

(Rs. 9720 x 17).

In addition to the above-referred amount, I am of the view

that the appellant is also entitled to receive compensation under non-

pecuniary head as now, it is well-settled position of law that the

dependent in such cases would also be entitled to receive the

compensation for other loss under non-pecuniary head as loss of

consortium and funeral expenses. I find that an amount of Rs. 1,00,000/-

for loss of consortium and funeral expenses of Rs. 5000/- will also be due

and payable to the appellant. Thus, the total amount of compensation

payable to the appellant would be Rs. 2,70,240/- inclusive of no-fault

liability paid to the appellant. Out of this amount, the appellant has

already received an amount of Rs. 1,06,920/- granted under the

impugned Award together with interest @ 12% per annum. So, the

appellant will be entitled to get balance amount of Rs. 1,63,320/- on

which she will be entitled to interest @ 7% per annum from the date of

application till realization. The point is answered accordingly.

10. Appeal is partly allowed and impugned judgment and order

stand modified accordingly. No costs.

S. B. SHUKRE, J

joshi