Bombay High Court
Om S/O Abhay Kshirsagar & Another vs The New India Assurance Company ... on 12 July, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.571 OF 2005
1. Om s/o. Abhay Kshirsagar,
Aged abut 7 years,
Minor, through Natural Guardian mother,
Smt. Swati wd/o. Abhay Kshirsagr.
2. Smt. Swati wd/o. Abhay Kshirsagar,
Aged about 29 years,
Occupation : Household,
Both residents of Arvi,
Tahsil Arvi, Distt. Wardha
at the time of presentation of petition
under Section 166 of the M.V. Act
and at present resident of Mahal,
Nagpur.
1. Om s/o. Uday Khandwe,
Names and addresses
Aged abut 15 years,
of appellant Nos.1
and 2 is corrected as Occupation : Student,
per Court's order Minor, through Natural Guardian mother,
dt.27.2.2014. Mrs. Swati wd/o. Uday Khandwe.
2. Mrs. Swati w/o. Uday Khandwe,
Aged about 37 years,
Occupation : Household,
Both Appellant Nos.1 and 2, residents of
C/o. Shri Uday Harihar Khandwe,
Dr. Khandwe's House, Kolla Road,
Mahal, Nagpur. : APPELLANTS
...VERSUS...
1. The New India Assurance Company Ltd.,
Branch at Karve Road, Pune,
Tahsil and Distt. Pune-411 044.
2. Javed Yunus Meman,
Aged - Adult, Occu. Truck Owner,
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R/o. Rukina Manzil, Wing-A,
Plot No.17, Market Yard,
Gul - Tekdi, Pune 411 037.
3. Ganpat s/o. Baban Hinge,
Aged - adult, Occ. Driver,
R/o. Avasuri (Budruk), Tah. Ambegaon,
P.S. Manasar, Distt. Pune.
4. The Oriental Insurance Company,
Through its Branch Manager,
Branch Yeotmal, Tah. And Distt. Yeotmal.
5. Sau. Shubhangi wd/o. Umesh Kshirsagar,
Aged about 64 years,
Occ. : Household, R/o. Arvi, Tahsil Arvi,
Distt. Wardha. : RESPONDENTS
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Shri Gaikwad, Advocate for the Appellants.
None for Respondent No.1.
Smt. Mrunal Naik, Advocate for the Respondent No.4.
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CORAM : S.B. SHUKRE, J.
th
DATE : 12
JULY, 2017.
ORAL JUDGMENT :
1. This appeal questions the legality and correctness of the
judgment and order dated 28th June, 2005, rendered in Motor Accident
claims Petition No.110/1999, by the Chairman Motor Accident Claims
Tribunal, Wardha insofar as the quantum of compensation is concerned.
2. The accident in this case occurred on 20.12.1998 on Pathrot-
Paratwada Road. The accident was in the nature of a dash given by one
truck to the motorcycle rode pillion by deceased Abhay-husband of the
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appellant No.2- father of appellant No.1 and son of respondent No.5. At
that time one Dilip was riding the motorcycle and deceased Abhay was
sitting pillion on the motorcycle. While the rider and the pillion rider
were on their way from Pathrot to Paratwada, one truck bearing
registration No.MWR 3727 coming from the opposite direction, suddenly
gave a dash to the motorcycle. As a result of the dash, both riders fell
down and sustained grievous injuries. The pillion rider, deceased Abhay,
succumbed to those injuries. Therefore, an application under Section
166 of the Motor Vehicles Act claiming compensation from the owner,
driver of the truck in question as well as its insurer was filed. The
application was partly allowed by the learned Chairman by her
impugned judgment and order. Not being satisfied with the quantum of
compensation awarded, the widow and the son of the deceased are
before this Court in the present appeal.
3. I have heard Shri Gaikwad, learned counsel for the appellant
and Smt. Mrunal Naik, learned counsel for the respondent No.4, insurer
of the motorcycle involved in the accident. None for respondent No.1,
the insurer of the truck involved in the accident for respondent Nos.2
and 3 owner and driver of the truck in question and respondent No.5 the
mother of the deceased.
4. I have gone through the record of the case including the
impugned judgment and order.
5. Now, the only point which arises for my consideration is :
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Whether the compensation awarded in the instant case
by the Tribunal is just and proper ?
6. Learned counsel for the appellant submits that the Tribunal
has wrongly determined the monthly income of the deceased to be at
Rs.2,000/- and has also applied wrongly the multiplier of 15 even though
for the age group between 30 to 35 years the correct multiplier as per the
Judgment Sarla Verma (Smt.) and others vs. Delhi Transport
Corporation and another, reported in (2009) 6 SCC 121, is of 17.
7. Smt. Mrunal Naik, learned counsel for respondent No.4
submits that an appropriate order may be passed.
8. The evidence of PW 1, appellant No.2, shows that the
deceased Abhay was working a contractor and his average monthly
income from his business of contractorship was of Rs.10,000/-, out of
which he used to spend an amount of Rs.7,000/- on the family. It is true
that no income certificate has been placed on record nor any other
documentary proof to support such an assertion has been tendered in
evidence. However, considering the fact that deceased Abhay was
carrying on a business of contractorship, it can be reasonably said that
there could not have been produced on record any income certificate. At
the most, there could have been some documents in the nature of income
tax returns. But, that also depends upon the knowledge of the widow
regarding filing of the income tax returns by her deceased husband. In
many cases, the wives of contractors are not aware of the details of the
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business dealings as well as filing of income tax returns by their
husbands. Therefore, one has to look into the quality of the oral
evidence adduced by parties in such cases. If it could be seen from the
oral evidence that the widow had some knowledge about filing of the
income tax returns or was also assisting her husband in his business, then
one can refuse to believe the oral submission regarding monthly income
of the deceased. In the instant case, if one takes a hard look at the
cross-examination, one would find that these material facts have not
been even tried to be brought on record by the learned counsel for the
insurer of the truck involved in the accident. The evidence on the
income part of the deceased given by the claimant has gone absolutely
unchallenged. There is not even a suggestion given to her that deceased
Abhay was filing income tax returns. With such quality of evidence
available on record, one can unflinchingly say that claimant has
reasonably established the fact that monthly income of the deceased was
of Rs.10,000/-, out of which he was spending an amount of Rs.7,000/-
per month on maintaining his family members. Therefore, the monthly
dependency of the family of the deceased Abhay could be taken as of
Rs.7,000/- which could make annual dependency as at Rs.84,000/-. To
this amount, a sum of Rs.10,000/- is also required to be added on
account of loss of love and affection and loss of consortium, which has
already been done by the Tribunal.
9. In view of the judgment of the Hon'ble Supreme Court in
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Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and
another, (supra), the multiplier of 17 in the present case will have to be
applied since admittedly the age of the deceased at the time of accident
was 32 years. Thus, total amount of compensation which the petitioner
and respondent No.5, being dependent upon the deceased, entitled to
receive would be (Rs.84,000 x 17 = 14,28,000 + 10,000)
Rs.14,38,000/-. This amount shall carry interest at the rate of 9% p.a.
from the date of petition till realization of the actual amount and same
shall be paid to the appellant and respondent No.5 in the such shares as
determined in the impugned judgment and order. The point is answered
accordingly.
10. All these facts not having been considered by the Tribunal,
the impugned judgment and order needs to be modified in the above
terms.
11. The appeal is partly allowed.
12. The impugned judgment and order is modified in the above
terms.
13. The appeal stands disposed of accordingly. No costs.
JUDGE
okMksns
