Madhumala Harishchandra Yermal & ... vs Nakshtra Singh Jalan Singh & Ors
2017 Latest Caselaw 4580 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                               FIRST APPEAL NO. 671 OF 2003



 1.       Madhumala s/o Harischandra Yermal,
          Age 39 years, Occ. Household
          R/o. Hingoli, Taluka Hingoli
          District Hingoli

 2.       Pallawai d/o Harischandra Yermal,
          Age 20 years, Occ. Education
          R/o. Hingoli, Taluka Hingoli
          District Hingoli


 3.       Pranoti d/o Harischandra Yermal,
          Age 17 years, Occ. Education
          R/o. Hingoli, Taluka Hingoli
          District Hingoli

 4.       Shubham s/o Harischandra Yermal,
          Age 5 years, Occ. Nil
          R/o. Hingoli, Taluka Hingoli
          District Hingoli

          (Appellant Nos. 3 and 4 are minors
          and under guardianship of their
          mother i.e. appellant No.1)                       ...Appellants

                  versus

 1.       Nakshatra Singh s/o Jalan Singh,
          Age 47 years, Occ. Business,
          (Truck owner) resident of Telibhandha
          Raipur (Madhya Pradesh)

 2.       Vishwanath s/o B.Keshwani,
          Age 48 years, Occ. Business,
          Resident of 7 Kherdi Road,
          Amrawati

 3.       National Insurance Company
          through its Divisional Manager
          Hajari Chamber, Station Road
          Aurangabad                                        ...Respondents



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 Mr. P.S. Paranjape, advocate for the appellants
 Mr. Rupesh Bora h/f Mr. P.P. Bafna, advocate for respondent No. 3
                                     .....

                                         CORAM : V. K. JADHAV, J.

DATED : 17th JULY, 2017

ORAL JUDGMENT:-

1. Being aggrieved by the judgment and award dated 19.6.2002,

passed by the learned Member, M.A.C.T. Hingoli, in M.A.C.P. 121 of

1998 (old) and 119 of 2000 (new), the appellants-original claimants

have preferred this appeal to the extent of quantum of compensation

as awarded by the Tribunal.

2. Learned counsel for the appellants submits that deceased

Harischandra was having three independent sources of income. He

was having cloth shop at Hingoli and he was one of the partner in

partnership firm named and styled as 'Jain Sales Corporation'.

Deceased Harischandra was owner in possession of agricultural

land admeasuring more than 32 acres at Hingoli. The appellants

claimants have lost income of deceased from his cloth shop as well

as income of his partnership firm. Learned counsel submits that

though the appellants have placed on recored the extract of profit

and loss account, balance sheet and the income tax returns of the

relevant years, the Tribunal has not considered the same. Learned

Member of the Tribunal has not considered the said evidence and

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awarded the compensation under the head of loss of future income

by considering the income of deceased at Rs.3000/- per month.

Learned counsel submits that even the Tribunal has awarded

meager amount of compensation under non pecuniary heads, such

as loss of consortium for appellant-claimant No.1 and loss of love

and affection for minor claimant Nos. 2 to 4, further the Tribunal has

also not awarded any compensation under the head of funeral

expenses. Learned counsel submits that even the Tribunal has

erroneously deducted 1/3rd of amount from the income of deceased

towards his personal and living expenses instead of 1/4 th which is in

consonance with number of dependents/claimants.

3. Learned counsel for respondent No.3 insurer submits that so

far as the income of deceased from his cloth shop is concerned, as

per the licence issued under the Bombay Shops Act, the said shop is

standing in the name of father of deceased, who was alive at the time

of accidental death of deceased. It is a part of record that income tax

returns placed on record were filed on 31.1.2002. The appellants

claimants have examined income tax practitioner P.W.3, whose

evidence was recorded before the Court on 9.5.2002. it is thus clear

that those returns were filed just before four months of recording of

evidence of P.W.3 Nandkishor. The Tribunal has therefore, rightly

discarded the said income tax returns, which were submitted

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belatedly and that too after filing of the claim petition. Learned

counsel submits that so far as the extract of profit and loss account

and balance sheet are concerned, the said witness P.W.3

Nandkishor has admitted in his cross examination that those extract

does not bear the date, signature, name of establishment etc. and

also there is no record available whether those documents were

submitted before the income tax authorities to consider the income of

deceased from all available sources. Learned counsel submits that

so far as the income of deceased from his partnership firm is

concerned, there is no documentary evidence on record to indicate

that deceased Harischandra was one of the partner of said

partnership firm prior to his accidental death. P.W.3 Nandkishor has

also admitted in his cross examination that no record is available to

show that deceased Harischandra was one of the partner of the said

partnership firm and the documents placed on record merely indicate

that the appellant-claimant No.1 is one of the partner of the said

partnership firm.

4. Learned counsel for respondent No.3 insurer submits that so

far as the agricultural income is concerned, as per 7x12 extract

produced on record, it appears that deceased Harischandra was

owner in possession of 5 hectare 10 Are of land as against the oral

evidence of the appellants-claimants that deceased Harischandra

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was owner in possession of near about 32 acres of land. It also

appears from 7x12 extract placed on record that appellant-claimant

No.1 is owner in possession of agricultural land independently and

she is personally cultivating it. Learned counsel submits corpus of

the land remain as it is and loss in the income from agricultural

source can be considered to the extent of loss on account of lack of

personal supervision and skill. Learned counsel submits that the

Tribunal has therefore, rightly considered the income of deceased

Harischandra at Rs.3000/- p.m. and accordingly awarded just and

reasonable compensation. So far as the income under non pecuniary

heads are concerned, learned counsel submits that the accident had

taken place way back in the year 1996 and as such, the Tribunal has

rightly awarded the compensation under non pecuniary heads. No

interference is required. There is no merit in the appeal.

5. On careful perusal of pleadings, evidence and the judgment

and award passed by the Tribunal, it appears that though the licence

issued under the provisions of Bombay Shops Act in respect of the

said cloth shop was not exhibited, on perusal of the same, it appears

that the said cloth shop is standing in the name of father of deceased

i.e. Rakhoba Shantinath Yermal (Jain). The appellants-claimants

have examined brother of deceased Harischandra as a witness and

he had deposed in his examination in chief that their father resides

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separately. Learned counsel for the appellants has vehemently

submitted that name of deceased was given to the said cloth shop

and considering the advance age of his father, inference could be

drawn that deceased Harischandra was looking after the said cloth

shop, exclusively. I am not going to consider the extract of profit and

loss account and the balance sheet submitted belatedly and also for

the reason that said extract does not bear the date, year and

signature of any authority. Even considering the said document for

limited purpose, I find that in the said extract, personal account of

father of deceased viz. Rakhoba Shantinath Yermal has been

referred. The appellants-claimants have not approached the Tribunal

with specific pleadings that even though the said cloth shop is

standing in the name of father of deceased Harischandra, deceased

Harischandra exclusively was looking after the said business and he

was getting income of said shop independently. In absence of any

evidence, the income of deceased from his cloth shop cannot be

considered. Even there is no document placed on record to show

that after death of deceased the said licence under the Bombay

Shops Act came to be transferred in the name of appellant-claimant

No.1 as it was done in respect of agricultural land owned and

possessed by deceased Harischandra.

6. Further, the income of deceased from his partnership firm

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cannot be considered for the reason that there is no single document

placed on record to show that deceased Harischandra was one of

the partner of the said firm prior to his accidental death. P.W.3

Nandkishor, the income tax practitioner, has admitted in his cross

examination that, though deceased Harischandra met with an

accidental death in the year 1996, however, independent Hindu Joint

family returns were filed on 31.1.2002. He has further admitted that

no document was brought by him showing that deceased

Harischandra was partner of said 'Jain Sales Corporation'. He has

further admitted that besides the aforesaid returns, there is no

document showing that deceased Harischandra was holding joint

Hindu family. He has further stated that the balance sheet do not

bear signature or stamp of income tax office. He has further admitted

in his cross examination that he prepared the balance sheet at the

time of submission of returns and besides the returns and balance

sheet, no documents are produced by him showing actual income of

deceased Harischandra. Even he has not brought before the court

the register on the basis of which he has prepared the balance sheet

and returns. He has also admitted that so far as income from cloth

shop is concerned, no document is produced before him about the

sales tax and even sales tax number is also not given to him. It

appears that the appellants have not approached the Tribunal with

clean hands so far as the income of deceased from said business is

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concerned.

7. So far as the income from agricultural sources is concerned,

though the 7x12 extract is placed on record, the same is not

exhibited before the Tribunal. As it was certified copy of the 7x12

extract, I have perused the same with the assistance of learned

counsel appearing for the respective parties. It appears that

deceased Harischandra was the owner in possession of agricultural

land admeasuring 5 H 10 R in total. Though as per the evidence of

P.W.3 Nandkishor, deceased Harischandra had submitted returns

under Hindu Joint Family category, there are no documents to show

that he was owner in possession of the property of Hindu joint family.

Even assuming that the said agricultural land is owned and

possessed by deceased Harischandra exclusively, there cannot be a

total loss in the agricultural income. The appellant No.1 has also

admitted in her cross examination that even in the life time of

deceased Harischandra, he was cultivating the said agricultural land

though his servants and that even after his accidental death,

appellant No.1 is cultivating the said land through servants. Under

these circumstances, I think that the Tribunal has rightly considered

the loss of future income of deceased from all sources to the extent

of Rs.3000/- p.m.. I do not find any fault in the said observations.

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8. In so far as the deduction of amount towards personal and

living expenses of deceased Harischandra as 1/3rd instead of 1/4th is

concerned, in my opinion, the learned Member has erroneously

deducted 1/3rd of the amount towards personal and living expenses

of deceased instead of 1/4th. There are in all four dependents

claimants, as such the Tribunal ought to have deducted 1/4 th towards

the personal expenses of deceased Harischandra. Thus, the loss of

future income/dependency required to be redetermined to that extent

only.

9. So far as the compensation as awarded by the Tribunal under

non pecuniary heads are concerned, I do not find any substance in

the submission made on behalf of counsel appearing for the

respondent-insurer that the appellants claimants are entitled for

compensation under non pecuniary heads in the year 1995-96 and

not as per the ratio laid down by the Supreme Court in the year 2010

onwards. Needless to say that the appeal is in continuation of the

original proceedings and after considering the plight of widow and

other dependents, the Supreme Court has laid down that the widow

is entitled for the amount of Rs.1,00,000/- for loss of consortium

whereas the minor claimants are entitled for Rs.50,000/- onwards

towards loss of love and affection.

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10. Thus, the appellants-claimants are entitled for amount of

Rs.1,00,000/- for loss of consortium to appellant No.1 and

Rs.50,000/- each for minor appellants-claimant Nos. 2 to 4. The

appellants are also entitled for Rs.25,000- towards funeral expenses.

11. In view of above discussion, the appellants-claimants are

entitled for total compensation of Rs.6,80,000/-. Thus, the break of

compensation awardbale to the appellants-claimants, which can be

broadly categorized is as under:-

I. Loss of future income/dependency Rs.4,05,000.00 (Rs.27,000x15) (As against Rs.3,60,000/- as awarded by the Tribunal).

 II.      Loss of consortium                           Rs.1,00,000.00
          to claimant No.1
          (As against Rs.10,000/- as
          awarded by the Tribunal).

 III.     Loss of love and affection                   Rs.1,50,000.00

          Rs.50,000/- each.
          (As against Rs.10,000/- as
          awarded by the Tribunal).

 IV.      Funeral expenses                            Rs. 25,000.00
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                                                Total Rs.6,80,000.00
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12. The judgment and award passed by the Tribunal, thus requires

modification. Hence, I proceed to pass the following order:-

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ORDER

I. The appeal is hereby partly allowed with proportionate costs.

II. The judgment and award dated 19.6.2002, passed by the learned Member, M.A.C.T. Hingoli, in M.A.C.P. No. 119 of 2000 is hereby modified in the following manner:-

"The respondent Nos. 1 to 3, jointly and severally pay Rs.6,80,000/- (Rupees Six lacs eighty thousand only) with proportionate costs and interest at the rate of 9% p.a. from the date of claim petition i.e. from 14.05.1998 till its realization. The compensation shall include compensation towards 'no fault liability'".

III. Rest of the judgment and award stands confirmed.

IV. The award be drawn up as per the above modification.

V. If any amount is paid as per the judgment and award passed by the Tribunal, the same shall be the part of award after modification.

VI. The appeal is accordingly disposed of.

( V. K. JADHAV, J.)

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