Bombay High Court
Ashabai Sunil Patil And Ors vs The New India Insurance Co Ltd And ... on 26 July, 2017
Bench: P.R. Bora
1 FA1341.2010 & 3588.11..doc
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1341 OF 2010
New India Assurance Co. Ltd.
Jalgaon, through its Branch Manager,
Through its authorized signatory
Sr. Divisional Manager, at Aurangabad .. APPELLANT
(Orig. Respondent No.2)
Versus
1. Ashabai Wd/o Sunil Patil
Age : 33 years, Occu : Household,
2. Bhushan S/o Sunil Patil
Age : 13 years, Occu : Student,
3. Chaitali Sunil Patil
Age : 15 years, Occu : Student,
Nos.1 to 3 R/o.Jalgaon (Khurd)
Tal. & Dist. Jalgaon
4. Shantabai Pandharinath Patil (Dead)
Through Legal Heirs:
Respondent Nos.1 to 3 ... RESPONDENTS
(Orig. Claimants No.1 to 4)
5. Rajendra S/o Chudaman Zambre
Age : Major, Occu : Business,
R/o. Doagar Kathora, Tal. Yawal,
Dist. Jalgaon .. RESPONDENT
(Orig. Respondent No.1)
-----
Advocate for Appellants : Shri. V.R. Mundada
Advocate for Respondents No.1 to 4 : Shri. M.M. Bhokarikar
Advocate for Respondent No.5 : Shri C.P. Patil
-----
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2 FA1341.2010 & 3588.11..doc
WITH
FIRST APPEAL NO.3588 OF 2011
1. Smt. Ashabai Sunil Patil
Age : 33 years, Occu : Household,
2. Chi. Bhushan Sunil Patil
Age : 13 years, Occu : Education,
3. Ku. Chaitali Sunil Patil
Age : 15 years, Occu : Education,
4. Shantabai Pandharinath Patil
(since deceased through L.R's)
4A) Ashabai Sunil Patil
Age : 33 years, Occu : Household,
4B) Bhushan Sunil Patil
Age : 13 years, Occu : Education,
4C) Chaitali Sunil Patil
Age : 15 years, Occu : Education,
All R/o. Jalgaon Khurd, Jalgaon, Dist. Jalgaon
(Applicant no.1 is the mother of the applicant
No.2 and 3 hence their natural guardian preferring
this appeal, application for and on behalf of them)
.. APPELLANTS
(Ori. Claimants)
Versus
1. The New India Insurance Company Ltd
Through Divisional Manager
Mandore Market, Dhadiwala Baungalow
Mehrun road, Jillha Peth, Jalgaon
2. Shri Rajendra Chudaman Zambare
Age : Major, Occu : Business,
R/o Dongar Kathora, Tal. Yawal,
Dist. Jalgaon .. RESPONDENTS
(Orig. Respondents)
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-----
Advocate for Appellants : Shri. M.M. Bhokarikar
Advocate for Respondent No.2 : Shri. C.P. Patil
Advocate for Respondent No.1 : Shri V.R. Mundada
-----
CORAM : P.R.BORA, J.
Reserved on : 14.06.2017
Pronounced on : 26.07.2017
ORAL JUDGMENT :
1. Since both appeals arise out of the Judgment and order
dated 04.11.2009 passed by the Motor Accident Claims Tribunal, at
Jalgaon in Motor Accident Claim Petition No.161/2007, I deem it
appropriate to decide these appeals by a common reasoning.
2. First Appeal No.1341/2010 has been filed by the
Insurance Company disputing the impugned award on quantum of
compensation and alleging contributory negligence of the deceased
in occurrence of the alleged accident, whereas First Appeal
No.3588/2011 has been filed by the original claimants seeking
enhancement in the amount of compensation.
3. The aforesaid claim petition was filed by the appellants
in First Appeal No.3588/2011, who are for short referred to as
claimants, claiming compensation on account of the death of one
Sunil Pandharinath Patil in a vehicular accident happened on
07.11.2006 having involvement of a Maruti car bearing registration
no.MH-19-Q-1145 owned by respondent no.1 in both aforesaid
appeals and insured with The New India Assurance Company Ltd
4 FA1341.2010 & 3588.11..doc
i.e. the appellant in First Appeal No.1341/2010 (hereinafter
referred to as 'the said Insurance Company'). In the accident so
happened, deceased Sunil Pandharinath Patil was severely injured
and was immediately taken to the hospital namely Surya Critical
Centre at Jalgaon and thereafter for further treatment was shifted to
Dhoot Hospital at Aurangabad. As averred in the claim petition age
of deceased Sunil was 40 years at the time of his death and he was
earning around Rs.6,000/- per month from agriculture and milk
business.
4. It was the case of the claimants that, they were fully
depending upon the income of deceased Sunil. The claimant no.1 is
the wife, claimants no.2 and 3 are the children, whereas claimant
no.4 is the mother of deceased. Claimants had claimed the
compensation of Rs.4,50,000/-. It was their contention that, the
alleged accident happened because of negligence on the part of
respondent no.2 namely Dr. Rajendra Chudaman Zambre, who was
at the relevant time driving the offending maruti car. The claim
petition was resisted by the owner of the Maruti car as well as the
insurer of the maruti car i.e. The New India Assurance Company
Ltd., on various grounds. The Ld. Tribunal after having assessed oral
and documentary evidence brought before it partly allowed the
claim petition. The tribunal has awarded compensation of
Rs.3,38,054/- excluding amount of NFL compensation already paid
to the claimants jointly and severally from the owner and insurer of
the maruti car together with the interest thereon at the rate of 7%
from the date of filing of the petition till its realization.
5 FA1341.2010 & 3588.11..doc
5. Insurance Company in its appeal has raised objections as
regards to the amount of compensation determined by the Tribunal.
Shri. Mundada, learned Counsel for the Insurance Company
submitted that, without there being any evidence as about the
income of deceased, the Tribunal has wrongly held the income of
deceased to the tune of Rs.30,000/- per annum. The learned
Counsel submitted that, the amount of compensation so awarded by
the Tribunal, therefore, needs to be reduced.
6. Shri. Mundada further submitted that, the Tribunal has
committed an error in not considering the plea of contributory
negligence on part of deceased in occurrence of the alleged
accident. The learned Counsel submitted that deceased was plying
his cycle in a rash and negligent manner and himself dashed with
the Maroti car. According to the learned Counsel deceased was
equally responsible for occurrence of the alleged accident.
7. Shri. Bhokarikar, learned Counsel appearing for the
claimants resisted the submissions advanced on behalf of the
Insurance Company. The learned Counsel submitted that, the
objection raised by the Insurance Company as about the negligence
on the part of deceased in causing the alleged accident is absolutely
untenable and the Tribunal has not committed any error in holding
the driver of the maruti car solely responsible for occurrence of the
alleged accident. The learned Counsel submitted that, the situation
on the spot clearly evinces that, the maruti car entered on wrong
side and gave dash to the cyclist.
6 FA1341.2010 & 3588.11..doc
8. The learned Counsel further submitted that, the
claimants have filed the appeal seeking enhancement in the amount
of compensation since the Tribunal has failed in awarding just and
fair compensation to the claimants. The learned Counsel submitted
that, the Tribunal has not appreciated that, deceased was cultivating
his agriculture land and simultaneously was also doing the business
of selling milk. In the circumstances according to the learned
Counsel the Tribunal must have held the income of deceased to the
tune of Rs.6,000/- per month as was deposed by PW No.1 before the
Tribunal. The learned Counsel further submitted that, the Tribunal
has also committed an error in deducting 1/3 rd amount of total
income of deceased while determining the amount of dependency
compensation when the number of dependants is more than three.
The learned Counsel submitted that, the Tribunal should have
deducted only 1/4th of total income of deceased towards his
personal expenses. The learned Counsel further submitted that, the
Tribunal has also not awarded the adequate compensation towards
non-pecuniary damages. The learned Counsel therefore prayed for
enhancement in the amount of compensation.
9. I have considered the submissions advanced by the
learned Counsel appearing for the respective parties. First I will deal
with the appeal filed by the Insurance company. Though the
quantum of compensation as awarded by the Tribunal has been
disputed by the Insurance Company, the said objection was not
seriously pressed and even otherwise having regard to the amount
of compensation as awarded by the Tribunal there appears no
substance in the objection so raised. The objection raised on behalf
7 FA1341.2010 & 3588.11..doc
of the Insurance Company in regard to contributory negligence on
the part of deceased in occurrence of the alleged accident, however
needs to be considered.
10. As noted earlier, according to the Insurance Company
deceased was equally responsible for occurrence of the alleged
accident. The said allegation is of course denied by the claimants. In
view of the submissions made on the point when I perused the
document of spot panchanama, it is revealed that, the objection
raised by the Insurance Company is liable to be rejected at the
threshold. It is not in dispute that, Maruti car was proceeding
towards Bhusawal from Jalgaon, whereas deceased was coming
towards Jalgaon from Bhusaval on his cycle. It has come in the
evidence of Dr. Zambre the owner of the Maruti car that deceased
came in front of his car from the left side of the car without giving
any signal and as such the accident happened because of sole
negligence on the part of deceased cyclist. The fact so deposed by
Dr. Zambre appears to be totally false in view of the situation on the
spot of occurrence. As noted earlier, it is undisputed that, deceased
cyclist was coming from side of Bhusawal and was proceeding
towards Jalgaon. It was therefore not possible for the cyclist in any
case to be on the left side of the maruti car. In the spot
panchanama the police had also prepared the map of the spot of
occurrence. The said map shows that, the accident had occurred at
the end of the eastern side of the road. Since the Maruti car was
proceeding towards Bhusawal from Jalgaon, it was supposed to be
on the western side of the road and deceased who was proceeding
towards Jalgaon was supposed to be the eastern side of the road.
8 FA1341.2010 & 3588.11..doc
From the situation on the spot, it is quite evident that, the Maruti
car entered on the wrong side and gave dash to the cyclist. The
cyclist was proceeding by his correct side and no blame can be
attributed on the part of deceased cyclist. The evidence on record
clearly suggests that the alleged accident occurred because of the
sole negligence on the part of Dr. Zambre, who was driving maruti
car at the relevant time. The objection raised by the Insurance
Company is, therefore, liable to be turned down.
11. As I noted earlier, the objection raised by the Insurance
Company as against the quantum of compensation is not pressed by
it. Thus, the Insurance Company has failed to make out any case in
the appeal filed by it and the same therefore deserves to be
dismissed and is accordingly dismissed.
12. Now about the appeal filed by the claimants seeking
enhancement in the amount of compensation. First objection as has
been raised by the claimants is that, the Tribunal has erred in
holding the income of deceased only to the tune of Rs.30,000/- per
annum. I have carefully gone through the evidence in this regard
and also the discussion made by the Tribunal while analyzing the
said evidence. Though it was the contention of the claimants that,
the income of deceased was around of Rs.6,000/- per month, the
evidence on record appears insufficient to uphold the said
contention of the claimants. The claimants did not adduce any
evidence so as to prove the income of deceased from his business of
milk selling. In so far as the agriculture income is concerned, as has
been rightly discussed by the Tribunal and as was rightly argued by
9 FA1341.2010 & 3588.11..doc
the learned Counsel appearing for the Insurance Company, the
agriculture land and the income from the said land had continued
even after the death of deceased since there are other persons from
the family of deceased to look after the agriculture land. In the
circumstances, the tribunal has rightly held the income of deceased
to the tune of Rs.30,000/- per annum for the purpose of assessing
the amount of compensation payable to the claimants.
13. In so far as the objection regarding deduction from the
income of deceased towards personal expenses while determining
the amont of dependency commission is concerned, the Tribunal has
certainly committed an error. In view of the fact that, the number of
the dependents on the income of deceased Sunil is more than three,
the tribunal should have deducted only 1/4th of his total income
towards his personal expenses instead of 1/3 rd. To that extent, the
amount of compensation needs to be enhanced. Holding the income
of deceased to the tune of Rs.30000/- per annum as has been held
by the tribunal and deducting 1/4 th of the said amount, the
compensation will have to be redetermined on the balance amount
of Rs.22,500/-. Having regard to the age of deceased the
appropriate multiplier would be of 16. The tribunal has rightly
applied the said multiplier. By applying the said multiplier, the
amount of compensation payable to the claimants comes to
Rs.3,60,000/-. The amount of compensation under this head
therefore needs to be enhanced to this extent.
14. There is also substance in another objection raised on
behalf of the claimants that, the tribunal has awarded unjust and
10 FA1341.2010 & 3588.11..doc
inadequate compensation towards the non - pecuniary damages.
The tribunal has awarded the total compensation of Rs.24,500/-
towards the non -pecuniary damages. The amount as awarded by
the tribunal is admittedly inadequate. Having regard to the
guidelines laid down by the Hon'ble Apex Court in the series of
Judgments, I deem it appropriate to enhance the said amount to the
tune of Rs.2,00,000/- from Rs.24,500/-. The tribunal has awarded
Rs.43,554/- to the claimants towards the medical expenses. There
is no dispute about the amount so awarded, the appellants are thus
found entitled to the total compensation of Rs.6,03,554/-
(Rs.3,60,000/- + Rs.43,554/- + Rs.2,00,000/-). In the facts and
circumstances of the case, it appears to me that, this would be just
and fair compensation payable to the claimants. The amount of
compensation as awarded by the tribunal thus needs to be enhanced
by the aforesaid extent and consequently the Award needs to be
modified to that extent. Hence, the following order is passed.
ORDER
1. First Appeal No.3588 of 2011 is partly allowed with
proportionate costs.
2. The amount of compensation as has been awarded by the
Tribunal to the tune of Rs.3,88,054/- (Rs.Three Lakhs Eighty Eight
Thousand Fifty Four Only) is enhanced to Rs.6,03,554/-
(Rs.Six Lakhs Three Thousand Five Hundred Fifty Four Only) with
interest on the enhanced amount of compensation at the rate as has
11 FA1341.2010 & 3588.11..doc
been awarded by the Tribunal from the date of filing of the appeal
till its realization.
3. The enhanced amount of compensation be apportioned
equally amongst these serviving claimants.
4. Award be modified accordingly.
5. First Appeal No.1341 of 2010 stands dismissed without any
order as to the costs.
( P.R. BORA, J. )
ggp
