Sandhya Bharatrao Desai And Ors vs Sanjay Nagorao Mande And Ors
2017 Latest Caselaw 4461 Bom

                                      1                        FA 505/2010

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                        FIRST APPEAL NO.505 OF 2010

  1)       Sandhya w/o Bharatrao Desai
           age: 33 Yrs., occu. Household,

  2)       Sidhi d/o Bharatrao Desai,
           Age: 9 Yrs., occu. Nil
           Minor U/g of her real mother
           Sandhya (Appellant No.1)

  3)       Rushikesh s/o Bharatrao Desai,
           Age: 7 Yrs., occu. Nil
           Minor U/g of her real mother
           Sandhya (Appellant No.1)

  4)       Sahebrao s/o Wamanrao Desai
           Age: 68 Yrs., occu. Nil.

  5)       Shakuntalabai w/o Sahebrao Desai
           Ag: 63 Yrs., occu. Nil

           All R/o Chudawa, Tq. Purna
           District Parbhani.               =    APPELLANT/S
                                            (orig.Petitionrs)

           VERSUS

  1)       Sanjay s/o Nagorao Mande
           age: 45 Yrs., occu. Business
           R/o Wajegaon, Tq. And 
           District Nanded.

  2)       United India Insurance Company
           Ltd., Through its Branch Manager,
           Dayawan Complex, Station Road,
           Parbhani.

  3)       Dhananjaya s/o Anandrao Shinde,
           age: 40 Yrs., occu. Business,
           R/o Shastri Nagar, Nanded.

  4)       The New India Assurance Co.Ltd.
           Through its Branch Manager,
           Shivaji Road, Parbhani.      =    RESPONDENT/S
                                        (orig. Respondents) 




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                                          2                           FA 505/2010

                                   -----
  Mr. Mahesh P.Kale,  Advocate for Appellants;
  Mr. SG Chapalgaonkar, Adv.for Respondent No.2;
  Mr. VN Upadhye, Adv. For Respondent No.4
                                   -----
                               CORAM :  P.R.BORA, J.

DATE :

13 th

July,2017.

ORAL JUDGMENT:

1) Heard finally. The present appeal is

filed by the original claimants, who had filed

the MACP No.1856/2005 decided by the Motor

Accident Claims Tribunal at Parbhani (for short

the Tribunal) on 3rd November, 2009, seeking

enhancement in the amount of compensation as

awarded by the said Tribunal.

2) The appellants had filed the aforesaid

claim petition on account of death of Bharat

Desai, who died in a vehicular accident happened

on 3rd June, 2005 having involvement of a Car

bearing registration No.MH-16-E-5045 and a bus

bearing registration No.MH-26-B-2006. Deceased

Bharat was travelling in the car. The said car

3 FA 505/2010

colluded with the travel bus and in the accident

so happened, he died on the spot. It was the

contention of the appellants before the Tribunal

that the alleged accident happened because of the

composite negligence on the part of driver of the

car and the driver of the ST bus. The appellants

had, therefore, claimed the compensation of Rs.

15,00,000/- jointly and severally from the owner

and insurer of the Car and the owner and insurer

of the travel bus.

3) As was averred by the appellants in

their claim petition, age of deceased Bharat on

the date of accident was 33 years and he was

serving as a Veterinary Officer. According to the

appellants, deceased Bharat was drawing salary to

the tune of Rs.9,300/- per month and after having

deducted an amount of Profession Tax, the net

salary was to the tune of Rs.9,125/-. It was the

further contention of the appellants that they

were fully dependent upon the income of deceased

Bharat.

                                     4                         FA 505/2010

  4)               In order to substantiate the contentions 

raised in the petition, one of the claimants

deposed before the Tribunal and two more

witnesses were examined, who were the employees

in the same office where deceased Bharat was

serving.

5) The petition was resisted by the

respondents on various grounds. The learned

Tribunal, after having assessed the oral as well

as documentary evidence brought before it, held

the claimants entitled for total compensation of

Rs.5,01,000/- from respondent Nos.1 and 2, i.e.

owner and insurer of the travel bus respectively

and a sum of Rs.1,67,000/- jointly and severally

from the original Respondent Nos. 3 and 4, i.e.

owner and insurer of the offending car.

Dissatisfied with the amount of compensation so

awarded, the appellants have preferred the

present appeal.

  6)               Shri Kale, learned Counsel appearing for 





                                 5                          FA 505/2010

the appellants, submitted that the Tribunal has

grossly erred in holding the income of the

deceased only to the tune of Rs.4,000/- per month

for calculating the amount of dependency

compensation when by leading sufficient evidence

on record, the appellants has proved the salary

income of the deceased to the tune of Rs.9,300/-

per month. The learned Counsel further submitted

that the Tribunal has unnecessarily drawn some

unwanted references and have illegally and

wrongly reduced the amount of compensation

payable to the appellants. The learned Counsel,

taking me through the evidence of PW 3, submitted

that through the evidence of the said witness,

the salary income of the deceased was

satisfactorily proved by the claimants. The

learned Counsel further submitted that the

finding recorded by the Tribunal as about income

of the deceased, therefore, needs to be modified

and the amount of compensation under the said

head needs to be enhanced.

                                     6                          FA 505/2010

  7)               The   learned   Counsel   further   submitted 

that the Tribunal has further erred in not

considering the future prospects of the deceased

while determining the amount of compensation.

Relying upon the judgments in the Case of Sarla

Verma (Smt.) and Ors. Vs. Delhi Transport

corporation and Anr.- (2009) 6 SCC 121; Santosh

Devi Vs. National Insurance Co. Ltd. And Ors. -

2012(5) Mh.L.J.(S.C.) 527; and the Division Bench

Judgment of this Court in the case of National

Insurance Co. Vs. Vaishali Harish Devare & Ors. -

2013(1) Mh.L.J.411, submitted that, the Tribunal

must have enhanced the existing income by 30%

while determining the amount of compensation.

8) The learned Counsel further submitted

that the Tribunal has also erred in awarding

meager amount of compensation towards non-

pecuniary damages. The learned Counsel,

therefore, submitted that the award needs to be

modified and the amount of compensation needs to

be accordingly enhanced.

                                      7                          FA 505/2010

  9)               Shri   Chapalgaonkar,   learned   Counsel   for 

Resp.No.2, supported the impugned judgment. The

learned Counsel submitted that the Tribunal has

passed a well-reasoned order and no interference

is warranted in the judgment and award so passed.

Learned Counsel submitted that no fault can be

found in the discussion made by the Tribunal when

there was no sufficient evidence showing that

deceased was in the permanent employment.

According to the learned Counsel, income of the

deceased was correctly held by the Tribunal @

Rs.4,000/- per month. The learned Counsel further

submitted that when there was no sufficient

evidence about the permanent income of the

deceased, there was no question of granting any

further enhancement in the amount of compensation

under the head of future prospects. The learned

Counsel however fairly submitted that the

compensation awarded by the Tribunal towards non-

pecuniary damages, can be appropriately enhanced

by this Court. Learned Counsel, therefore, prayed

for passing the appropriate orders.

                                      8                          FA 505/2010

  10)              Shri   Upadhye,   learned   Counsel   appearing 

for Respondent No.4, adopted the arguments

advanced by Shri Chapalgaonkar, and submitted for

passing appropriate orders.

11) I have carefully considered the

submissions made on behalf of the learned Counsel

appearing for the respective parties. I have

also perused the impugned judgment and award and

the other material placed on record. On perusal

of the judgment, and more particularly the

discussion made by the Tribunal as about the

income of the deceased, I have no doubt that the

Tribunal has committed an error in not holding

the salary of the deceased to the tune of Rs.

9,300/- per month when his salary was duly proved

by the appellants by examining the witness in

that regard. The discussion made by the tribunal

in this regard appears to be wholly

unsustainable. The Tribunal must have determined

the amount of compensation on the basis of salary

income of the deceased on the date of accident

9 FA 505/2010

which was duly proved by the appellants. The

salary Certificate at Exh.46 demonstrates that

the deceased was receiving monthly salary of

Rs.9325/-, out of which, a sum of Rs.200/- was

used to be deducted towards the amount of

Profession Tax. The net salary income of the

deceased was thus Rs.9125/-. I, therefore, hold

the income of the deceased to the tune of Rs.

9125/- for the purpose of determining the amount

of dependency compensation. At the said rate the

annual income of the deceased comes to Rs.

1,09,500/-. Considering the number of persons

depending upon the income of the deceased, only

1/4th, , i.e. Rs.27375/- was liable to be deducted

from the annual income of the deceased towards

his personal expenses. The amount of dependency

compensation was thus liable to be computed on

the balance amount of Rs.82,125/-. Considering

the age of the deceased, the appropriate

multiplier in the case would be of 16. By

applying the said multiplier, the amount of

compensation comes to Rs.13,14,000/-.

                                      10                         FA 505/2010

  12)              The   next   question   which   falls   for   my 

consideration is, whether the tribunal has erred

in not considering the future prospect of the

deceased. Relying upon the judgment of the

Hon'ble Apex court in the case of Sarla Verma and

Santosh Devi,(cited supra) and the Division Bench

Judgment in the case of Vaishali Devare, it was

argued by the learned Counsel that in the instant

case also, the Tribunal must have given notional

enhancement in the income of the deceased by 30%

and have determined the amount of compensation on

the said estimated enhanced income.

13) I have carefully considered the

judgments relied upon by the learned Counsel for

the appellants. In light of the aforesaid

judgments, when I perused the evidence adduced by

the appellants on the point of income of the

deceased, it is apparently revealed that there is

absolutely nothing on record to show that the

deceased was having any chance of further

promotion or about the prospects of enhancement

11 FA 505/2010

in the income of the deceased. In absence of any

such evidence, it does not appear to me that any

case is made out by the appellants to consider

their contention and to enhance the amount of

compensation on the aforesaid ground.

14) In so far as third objection raised by

the appellants, as noted earlier, the learned

Counsel appearing for the insurance companies,

were fair enough in submitting that the amount

so awarded needs to be adequately enhanced. The

Tribunal has awarded a sum of Rs. 5,000/- towards

funeral expenses; Rs.10,000/- towards loss of

consortium; and Rs.5,000/- towards loss of

estate. I deem it appropriate to consolidately

enhance the said amount to Rs.2,00,000/-. The

appellants are thus held entitled for the total

compensation of Rs.15,14,000/-. In the facts and

circumstances of the case, it appears to me that

this will be the fair and just compensation

payable to the appellants/claimants. Save and

except the enhancement in the amount of

12 FA 505/2010

compensation from Rs.6,67,000/- to Rs.

15,14,000/-, the other part of the judgment and

award is kept as it is. It is clarified that the

proportion of negligence and consequential

liability to pay the amount of compensation in

the said proportion is kept as it is, even in

respect of enhanced amount of compensation.

Similarly, the apportionment of the amount of

enhanced compensation interse the claimants and

the amounts to be deposited in FDR in the name of

minors shall be in the same proportion as

directed in the original award. The

appellants/claimants are entitled for the

interest @ 6% p.a. from the date of filing of the

application till its realization on the enhanced

amount of compensation.

15) The appeal stands allowed in the

aforesaid terms. Pending civil application, if

any, stands disposed of.

(P.R.BORA) JUDGE bdv/