Sau. Sandhya W/O Gopalrao Talokar ... vs Balaji S/O Keshao Pawar And Others
2017 Latest Caselaw 4774 Bom

 fa808.16.J.odt                            1

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

                        FIRST APPEAL NO.808 OF 2016

 1]       Sau. Sandhya w/o Gopalrao Talokar,
          Aged about 46 years,
          Occ: Housewife,
          R/o Kolambi, Tq. & Dist. Akola.

 2]       Gopalrao s/o Sahebrao Talokar,
          Aged about 56 years,
          Occ: Nil, R/o Kolambi,
          Tq. & Dist. Akola.                                ....... APPELLANT

                                   ...V E R S U S...

 1]       Balaji s/o Keshao Pawar,
          Age-Adult, Occ: Driver,
          R/o Ramantoda, Tq. Loha,
          District Nanded.

 2]       Sangram Dadarao Gite,
          Age-Adult, Occ: Owner of Balerao
          R/o Malakoli, Tq. Loha,
          District Nanded.

 3]       Divisional Manager,
          The New India Insurance Company
          Ltd., Old Cotton Market, Akola.                    ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri S.S. Patil, Advocate for Appellant.
          Shri Prashant Thakare, Advocate for Respondent No.3.
 -------------------------------------------------------------------------------------------

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

          DATE:                th
                            20    JULY, 2017.


 ORAL JUDGMENT



 1]               This appeal is preferred by the original claimants who

are the parents of the deceased Shiva @ Ankush Talokar, being

dissatisfied with the amount of compensation awarded by Motor

Accident Claims Tribunal, Akola, vide its judgment and order

dated 24.02.2016, passed in Motor Accident Claim Petition

No.107/2013.

2] Brief facts of the appeal can be stated as follows:

Appellant No.1 is the mother and appellant No.2 is

the father of deceased Shiva @ Ankush. At the time of accident he

was running the age of 22 years and studying in 1 st year Civil

Engineering Course. On the date of accident on 21.01.2013 at

about 07:30 p.m. he was proceeding on Akola Murtizapur road on

his motorcycle bearing MH-30 T-0945. When motorcycle reached

near Katepurna bridge, one Scorpio Jeep bearing No.MH-26

AF-6515 was coming from opposite direction and it gave dash to

the motorcycle of the deceased and fled from the spot. Due to the

dash, Shiva got grievously injured and died on the spot.

3] At the time of accident, respondent No.1 was found to

be driving Jeep in a rash and negligent manner, as a result of

which, the accident has taken place. Therefore, the offence was

registered against him. Respondent No.2 is the owner of the

vehicle, whereas the respondent No.3 is the Insurance Company of

the said vehicle.

4] Thus, due to untimely death of the deceased, as the

appellants lost their only source of income and the support of his

love and affection, they claimed the compensation of

Rs.12,00,000/- from the respondent Nos.1 to 3, jointly and

severally.

5] Respondent Nos.1 and 2, though duly served with the

notice of the petition and appeared in the Tribunal, they did not

file the written statement. The claim petition was contested

therefore, only by respondent No.3-the Insurance Company vide

its written statement at Exh.21, admitting the insurance of the

offending vehicle, but denying that the cause of accident was the

rash and negligent driving of the Jeep. It was submitted that, as

all of a sudden deceased came in front of the Jeep, the accident

took place and therefore, it was definitely a case of contributory

negligence on the part of the deceased also. It was further

submitted that the amount of the compensation claimed was

exorbitant and unreasonable. Respondent No.3 therefore, sought

dismissal of the petition.

6] On these respective pleadings of the parties, the

Tribunal framed necessary issues for its determination at Exh.27.

In support of their case appellant No.1 examined himself and

relied upon various documentary evidence on record.

On appreciation of his evidence the Tribunal was pleased to hold

that the cause of the accident was rash and negligent driving of

the Jeep and accordingly awarded the compensation of

Rs.3,50,000/- to the appellants, from respondent Nos.1 to 3

jointly and severally.

7] This judgment and order of the learned Tribunal is

not challenged by any of the respondents. The only challenge

raised in this appeal by the original claimants is on the count that

the amount of compensation awarded by the Tribunal is too

meagre and not according to well established principles of law.

As against it, learned counsel for respondent No.3 has supported

the impugned judgment and order of the Tribunal by submitting

that as the deceased was a student, the Tribunal has rightly

considered his notional income as Rs.3000/- per month and the

multiplier applied by the Tribunal of 18 also does not call for any

interference. Hence, according to learned counsel for respondent

No.3, the impugned judgment and order of the Tribunal being

just, legal and correct, so far as quantum of compensation is

concerned and it being based on the evidence on record, it needs

to be confirmed.

8] In this appeal, the finding arrived at by the Tribunal

that the cause of accident was the rash and negligent driving of

the Jeep is not challenged, as none of the respondent has filed any

cross-appeal or cross-objection, and therefore, that finding has

attained finality and hence, need not be disturbed. Otherwise also,

the said finding is based on the documentary evidence on record

like the copy of F.I.R. Exh.31, spot panchnama Exh.32 and the

evidence on record showing that the Police had registered C.R.

No.44/2013 against respondent No.1, the driver of the Jeep for

the offence punishable under Section 304-A and 279 of the I.P.C.

The spot panchnama also clearly goes to prove that the accident

has occurred due to rash and negligent driving of the Jeep.

Hence, the liability of respondent Nos.1 to 3 to pay jointly and

severally the amount of compensation to the appellants-claimants

being sufficiently established on record, the only point which

arises for consideration in this appeal is whether the quantum of

compensation awarded by the Tribunal is just, fair, reasonable

and correct?

9] On this point also, the factual aspects of the case are

not in the realm of dispute. It is admitted that the birth of Shiva

was 10.06.1991, whereas the accident in question has taken place

on 23.01.2013, and therefore, at the time of accident he was 22

years of age. It is also not disputed that at the time of accident, he

was studying in 1st year Civil Engineering Course at Jagdamba

College of Engineering and Technology at Yavatmal. The Tribunal

has therefore, considered his notional income as Rs.3000/- per

month and accordingly, calculated the amount of compensation.

10] However, as rightly submitted by learned counsel for

appellant, by placing reliance on the judgment of Sarla Verma

(Smt.) and others vs. Delhi Transport Corporation and another

(2009) 6 SCC 121, the compensation amount has to be just and

reasonable. In the words of the Hon'ble Apex Court, the

assessment of compensation, though involving certain

hypothetical considerations, it should nevertheless be objective.

Further, the compensation awarded does not become "just

compensation" merely because the Tribunal considers it to be just.

"Just compensation" is adequate compensation which is fair and

equitable, on the facts and circumstances of the case, to make

good the loss suffered as a result of the wrong, as far as money

can do so, by applying the well-settled principles relating to award

of compensation. It is neither intended to be a bonanza, largesse

or source of profit nor it should be so meagre as a pittance.

11] In this judgment of Sarla Verma, the Apex Court has

held that basically only three facts need to be established by the

claimants for assessing compensation in the case of death i.e. (a)

age of the deceased; (b) income of the deceased; and (c) the

number of dependants. Further, issues to be determined by the

Tribunal to arrive at the loss of dependency are: (i)

additions/deductions to be made for arriving at the income of the

deceased; (ii) the deduction to be made towards the personal

living expenses of the deceased; and (iii) the multiplier to be

applied with reference to the age of the deceased. Accordingly, the

Apex Court has standardized the determinants, so as to achieve

uniformity and consistency in the decisions. It was held that the

income of the deceased per annum should be determined and out

of the said income a deduction should be made in regard to the

amount which the deceased would have spent on himself by way

of personal and living expenses. The balance, which is considered

to be the contribution to the dependant family, constitutes the

multiplicand. It was further held that when the deceased is

unmarried and survived by the parents, 50% of his income needs

to be considered towards his personal expenses and 50% as the

contribution to the family.

12] As regards the multiplier, it was held that having

regard to the age of the deceased and period of his active career,

the appropriate multiplier should be selected. In the instant case,

as the deceased at the time of accident was unmarried and is

survived by his parent, as the age of the appellants is on higher

side than the age of the deceased, their age needs to be

considered for determining the multiplier. In the instant case, as

the age of the appellant Nos.1 and 2, at the time of accident of the

deceased was between 50 to 55 years, hence in my considered

opinion the appropriate multiplier would be "11" and not "18", as

applied by the Tribunal, considering the age of the deceased.

13] As to the income of the deceased, which is one of the

important criteria for determining the amount of compensation, it

may be true that at the time of accident the deceased was a

student and not earning income, however, as observed by the

Apex Court in the decision of Sarla Verma, this Court has also to

consider his future prospects and the active career, which he was

going to lead after achieving the Degree of Engineering.

Learned counsel for the appellants has also placed reliance on the

judgment of the Apex Court in the case of Ashvinbhai Jayantilal

Modi vs. Ramkaran Ramchandra Sharma and another 2015(4)

Mh.L.J. 36, wherein though the deceased was aged 19 years and

was a student of medicine and therefore, at the time of accident

nor earning income, despite that, it was held that as the deceased

could have reached greater heights, the medical profession being

most sought after and rewarding, deceased could have earned

income of Rs.25,000/- per month and Rs.3,00,000/- annually.

14] Therefore, in the instant case also, having regard to

the fact that deceased was studying in Engineering and therefore,

having better future prospects, his income needs to be considered

as Rs.20,000/- p.m.; annually it comes to Rs.2,40,000/-. Out of

that 50% of the amount needs to be deducted towards the

personal expenses of the deceased. Hence the amount of

Rs.1,20,000 x 11 = Rs.13,20,000/- will be the financial

dependency to which the appellants become entitled, as

compensation for the financial loss.

15] The Tribunal has then awarded the meagre sum of

Rs.16,000/- towards the loss of love and affection and Rs.10,000/-

towards funeral expenses. As regards Rs.10,000/- towards funeral

expenses, the sum appears to be just and reasonable. Therefore,

does not call for any interference. However, as regards the

amount towards loss of love and affection, as the appellants have

lost their son, having regard to the recent trend of the decision of

the Supreme Court as reflected in Rajesh vs. Rajbir Singh 2013

ACJ 1403 (SC), the appellants are required to be held entitled for

compensation of Rs.1,00,000/- towards the loss of love and

affection. Thus, the total amount of compensation to which

appellants become entitled comes to Rs.14,30,000/-. To this

limited extent the interference is warranted in the impugned

judgment and order of the Tribunal.

16] Accordingly, the appeal is allowed. The impugned

judgment and order of Tribunal is modified to the extent that

appellants are held entitled to get compensation of Rs.14,30,000/-

inclusive of no fault liability amount, with future interest at the

rate of 9% per annum from the date of institution of the petition

i.e. 16.07.2013 till realization of the amount, with proportionate

cost thereof.

17] The appellants are entitled to get this sum amount

subject to payment of the deficit court fee stamp. The amount be

distributed proportionately along with interest and costs between

appellant Nos.1 and 2.

18] The appeal is allowed and disposed of in the above

terms.

JUDGE

NSN