Bombay High Court
The Orintal Ins. Co. Ltd vs Kiran Wd/O Sanjay Ganorkar & 5 Ors on 25 July, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 624 of 2005
Appellant : The Oriental Insurance Company Limited,
Registered Office at Oriental House, and
one of its Divisional Office, No. II at Kanoria
House, Palm Road, Civil Lines, Nagpur,
through its Divisional Manager
versus
Respondents : 1) Smt Kiran wd/o Sanjay Ganorkar,
aged about 34 years, Occ: nil
2) Ku Gayatri d/o Sanjay Ganorkar, aged
about 12 years, Occ: Student
3) Ku Payal d/o Sanjay Ganorkar, aged
about 7 years, Student
Nos. 2 and 3 being minors, through their
natural guardian mother Smt Kiran wd/o
Sanjay Ganorkar, aged about 34 years,
occ: nil
4) Vasantrao Devidasrao Ganorkar, aged
about 74 years, Occ: Nil ... Deleted
::: Uploaded on - 04/08/2017 ::: Downloaded on - 08/08/2017 01:32:05 :::
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5) Sau Ushatai w/o Vasantrao Ganorkar,
aged about 64 years, Occ: Household, Occ:
64 years, Occ: Household
Nos. 1 to 6 residents of Dhawani Vesh,
Daryapur, District Amravati
6) Rajesh Jagannathrao Lothe, aged
about 48 years, Occ: Development Officer,
LIC of India, Resident of "Triveni",
Trimurti Colony, New Swastik Nagar,
Amravati
Shri Masood Shareef, Advocate for appellant
Shri Anoop Gilda, Advocate for respodnents no. 1 to 3 and 5
None for respondent no. 6
------
Coram : S. B. Shukre, J
Dated : 25th t July 2017
Oral Judgment
1. This appeal questions legality and correctness of the Award
dated 30th September 2004 rendered in Claim Petition No. 27 of 2001 by
the Motor Accident Claims Tribunal, Amravati.
2. In a claim petition filed under Section 166 of the Motor
Vehicles Act, 1988 (for short, the "MV Act") by the widow, children and
parents of deceased Sanjay Ganorkar who died due to dash given to him
violently to his rear side, while he was standing on the road by a red
colour Maruti car in the fateful night of 31 st December 1999 on Badnera-
Amravati Road, the Claims Tribunal partly allowed the petition and
granted compensation of Rs. 12,90,560/- inclusive of no-fault liability
with future interest @ 9% per annum from the date of petition till
realization of the amount awarded. The appellant being insurer of the car
which was claimed to be bearing registration No. MH-28/H-288
belonging to respondent no. 6, felt aggrieved by the findings recorded by
the Tribunal in respect of involvement of this car in this accident as well
as the liability of the appellant to pay the compensation amount and that
is why this appeal has been filed.
3. I have heard Shri Masood Shareef, learned counsel for the
appellant and Shri Anoop Gilda, learned counsel for respondents no. 1 to
to 3 and 5. None appears for respondent no. 6 though duly served.
Respondent no. 4 having died during the pendency of appeal, by consent,
his name is deleted from the array of respondents.
4. I have gone through the record of the case including the
impugned judgment and order. The following points arise for my
determination:
(i) Whether the appellant proves that Maruti Car bearing
registration No. MH-28/H-288 was not involved in the
accident ?
(ii) Whether the compensation granted by the Tribunal
is just and proper ?
5. On going through the evidence brought on record by
respondents no. 1 to 3 and 5, I find that there is not a single circumstance
brought on record by the appellant which would enable this Court to take
a different view from the one taken by the Tribunal. The Tribunal has
found, although initially crime was registered against the driver of an
unknown vehicle, but as the further investigation disclosed that this
Maruti car bearing registration No. MH-28/H-288 belonging to
respondent no. 6 and insured with appellant, was involved in the accident
in which deceased Sanjay lost his life. No suggestions denying
involvement of this car in the accident have been given to PW 1 Smt
Kiran. In fact, if one reads the cross-examination of this witness, one
would find that the factum of involvement of this car in the accident has
not been denied by giving suitable suggestions to the witness. No other
evidence has been lodged either by respondent no. 6, the owner of the car
or the appellant in rebuttal. Therefore, the finding recorded by the
Tribunal that this car was involved in the accident in question would have
to be said to be logically arising from the evidence available on record.
This finding cannot be said to be perverse. The first point is, therefore,
answered in the negative.
6. Shri Gilda, learned counsel for the claimants relying on the
cases of Andhra Pradesh State Road Transport Corporation & anr v.
M. Ramadevi & ors reported in (2008) 3 SCC 379 and Jitendra
Khimshankar Trivedi & ors v. Kasam Daud Kumbhar & ors reported in
(2015) SCC 237 has sought enhancement of the amount of compensation.
According to him, this can be done while exercising the the appellate
powers under Section 173 of the MV Act. Shri Shareef, however,
disputes it contending that Section 173 of the MV Act does not give wide
mandate to this Court for enhancing compensation even when no cross
appeal or no cross-objection, which is the case here, has been filed by a
claimant. He submits that if cross-objection is filed by the claimant in an
appeal filed by the insurer or insured under Section 173 of the Motor
Vehicles Act, it would be for all purposes an appeal filed under this very
provision of law. He submits that if such cross-objection is filed, it would
be governed by the extent of powers of the Appellate Court under Section
173 of the MV Act. But, when no such cross-objection in terms of Section
173 is filed, it would have to be taken that the claimant is not aggrieved
by the Award and so the quantum of compensation determined by the
Tribunal would have to be accepted as just and proper consistent with the
spirit of Section 168 of the MV Act. He thus submits, a claimant who
does not feel aggrieved and chooses to not challenge the award by filing
an appeal or cross-objection, cannot be permitted to stand up and make
an oral claim later on, in an apeal filed by the insurer, for getting more
compensation.
7. In the case of M. Ramadevi & ors (supra), relying upon the
case of Nagappa v. Gurudayal Singh reported in (2003) 2 SCC 274,
Hon'ble Apex Court held that enhancement in quantum of compensation
in an appeal filed by the non-claimant, without there being any cross-
objection filed by the claimant, is permissible. In Jitendra Khimshankar
Trivedi & ors (supra), this view has been reiterated by the Hon'ble Apex
Court. In paragraph 12, it is observed thus:
"12. The Tribunal has awarded Rs. 2,24,000 as against the
same, the claimants have not filed any appeal. As against
the award passed by the Tribunal when the claimants have
not filed any appeal, the question arises whether the income
of the deceased could be increased and compensation could
be enhanced In terms of Section 168 of the Motor Vehicles
Act, the courts/the Tribunals are to pass awards determining
the amount of compensation as to be fair and reasonable
and accepted by the legal standards. The power of the
courts in awarding reasonable compensation was
emphasised by this Court in Nagappa v. Gurudayal Singh,
Oriental Insurance Co. Ltd. v. Mohd. Nasir and Ningamma v.
United India Insurance Co. Ltd. As against the award passed
by the Tribunal even though the claimants have not filed
any appeal, as it is obligatory on the part of the courts/the
Tribunals to award just and reasonable compensation, it is
appropriate to increase the compensation."
8. It is clear from the above judgment that even in an appeal by
the non-claimant, the claimant can indeed seek enhancement in quantum
of compensation even without filing any cross-objection and it is
obligatory for the appellate court to consider the same and award him
the compensation which, in its opinion, is just and fair.
9. This being the law settled by Hon'ble Supreme Court, I do not
think that there is any scope left out to consider the argument canvassed
by learned counsel for the appellant. The argument of learned counsel for
the appellant is, therefore, rejected. Accordingly, I find that the oral claim
raised on behalf of the claimants seeking enhancement of compensation
in the present appeal is tenable before this Court.
10. Now, the question would be, what should be the just and fair
compensation to be awarded to the claimants - could it be just the same
as granted by the Tribunal or lesser or higher than that ? I think, the
answer would go to the higher side of the compensation if one considers
missing out by the Tribunal some of the parameters while awarding the
compensation under the impugned Award. The Tribunal has also not
considered the future prospects @ 50% of the monthly income as held by
the Hon'ble Supreme Court in the case of Sarla Verma (Smt) & ors v.
Delhi Transport Corporation & anr reported in (2009) SCC 121. The
Tribunal has not taken into consideration the compensation payable
under some of the non-pecuniary heads. In Rajesh & ors v. Rajbir Singh
& ors reported in (2013) 9 SCC 54, the appropriate compensation under
the head of loss of consortium is of Rs. 100,000/- while in the impugned
award, the same has been given at Rs. 50,000/-. The Tribunal has also
reduced the compensation on account of love and affection for two
children to Rs. 50,000/- although, as held in the case of Rajesh & ors
(supra), it is of Rs. 1 lac for each child. The Tribunal has not given any
compensation on account of loss of estate for the widow and the children
which I think, in view of the settled law, is due to them at Rs. 100,000/- .
The Trbunal has also not granted any funeral expenses although the
same should have been grated at Rs. 25,000/-, as observed in Rajesh &
ors (supra).
11. These failings of the Tribunal would now be the tasks for this
Court to finish here. Accordingly, the exercise is computed in the
following manner :
(1) Monthly net income as rightly determined
by the Tribunal .. Rs. 8520/-
(2) 50% of future prospects .. Rs. 9260/-
(3) Addition of (1) + (2) .. Rs. 12,780/-
(4) Annual income - 12 x 12,780 =
Rs. 1,53,360/-
(5) Annual loss of dependency to be calculated
by deducting 1/4th amount from (4) =
Rs. 1,15,020/-
As per Sarla Verma (Smt) & ors v. Delhi Transport
Corporation & anr reported in (2009) 6 SCC 121, for the age group of 36
to 40, multiplier "15" is to be applied. There is no dispute about the age
of the deceased which was 38 years at the time of accident. Applying this
multiplier of "15" to the annual loss of income of Rs. 1,15,020/- total loss
of dependency would come to Rs. 17,25,300/-. To this amount of
compensation, on account of such heads as loss of consortium, loss of
love and affection, loss of estate and funeral expenses further amounts
would have to be added in the following manner by relying upon the case
of Rajesh & ors (supra) :
(1) Total loss of dependency .. Rs. 17,25,300/-
(2) Loss of consortium for respondent no.1.. Rs. 1,00,000/-
(3) Loss of love and affection for
respondents no. 2 and 3 .. Rs. 2,00,000/-
(4) Loss of estate for all respondents .. Rs. 1,00,000/-
(5) Funeral expenses .. Rs. 25,000/-
Total amount of compensation .. Rs. 21,50,300/-
Thus, I find that the compensation which the claimants are entitled
to receive in the present case in a just and fair manner would come to Rs.
21,50,300/- which would be inclusive of no fault liability compensation,
with interest at the same rate as given by the Tribunal. The compensation
would be payable by the appellant and respondent no. 6 to the
respondents no. 1 to 3 and 5 jointly and severally within three months
from the date of payment of requisite court fees failing which the
claimants would be entitled to recover the same together with interest
awarded through coercive method. The impugned Award is thus
modified in the above terms and the appeal filed by the appellant is
dismissed. Parties to bear their own costs. Requisite amount of court fees
be paid by the claimants within one month from the date of order.
S. B. SHUKRE, J
joshi
