Md Farhat Abdul Raheman Deshmukh ... vs Hazrat Dastagir Kazi And Others
2017 Latest Caselaw 5120 Bom

                                     1                         FA 631/2004

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                       FIRST APPEAL NO. 631 OF 2004

  1.       Md. Farhat s/o. Abdul Raheman Deshmukh,
           Age: 55 years, Occu. Agri & Business,
           (Deceased his L.Rs.)

  1.1 Md. Rafat s/o. Mohd. Farhat Deshmukh,
      Age: 35 years, Occu. Agri.,

  1.2 Md. Firasat s/o. Md. Farhat Deshmukh,
      Age: 26 years, Occu. Agri.,

  1.3 Md. Azmat s/o. Md. Farhat Deshmukh,
      Age: 20 years, Occu. Agri,


           All r/o  Khori Galli, Latur.
           Ta. And Dist. Latur.                      = APPELLANTS
                                                        CLAIMANTS
           VERSUS

  1.       Hazrat Dastagir Kazi,
           Age: 35 years, Occu. Truck Driver,
           R/o. Akluj, Tq. Malshiras Dist. Solapur

  2.       The Managing Director Sakhar Maharshi
           Shankarrao Mohite Patil Sahakari Sakhar
           Karkhana Ltd. Shankar Nagar, Akluj,
           Tq. Malshiras.

  3.       The United India Insurance Co. Ltd.
           Through it's Branch Manager,
           Main Road, Latur,

  4.       Jiya Ahmed Khan s/o. Gulamali Khan
           Age: 35 years, Occu. Business,
           R/o. Paithan Road, Aurangabad
           R/o. Silk Mills Compound.

  5.       The New India Assurance Co. Ltd.
           Chandra Nagar, Latur
                                                     ...RESPONDENTS 




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                                          2                           FA 631/2004


                                ***
           Mr. R.B. Deshmukh, Advocate for the Appellants;
           Mr. D.H. Jadhavar & Mr. R.K. Jadhavar, Advocate 
           for Respondent Nos. 1 & 2
           Mr. A.D. Soman Adv. h/f. Damodar Soman, Advocate 
           for Respondent No.3
           Adv. S.Y. Mahajan for Respondent No.4.
           Mr. Dhananjay Deshpande, Advocate  for   Respondent 
           No.5.
                               -----
                               CORAM :  P.R.BORA, J.

DATE :

27 th

July,2017.

ORAL JUDGMENT:

1) Heard. Legal heirs of Mohammad Farhat

s/o Abdul Raheman Deshmukh, who had filed the

original claim petition before the Motor Accident

claims Tribunal, at Latur (hereinafter refereed

to as the Tribunal), have filed the present

appeal dissatisfied with the amount of

compensation as has been awarded in the MACP No.

213/2001, vide the Judgment and Award passed on

13th October, 2003.

2) Deceased Mohammad had filed the

aforesaid claim petition claiming compensation of

Rs.5,00,000/- on account of the injuries caused

3 FA 631/2004

to him in a vehicular accident happened on 12 th

April, 1999 having involvement of a tanker

bearing Registration No.MH-13-G-178 and Tata

Sierra jeep bearing registration No.MH-01-R-4847.

The alleged accident had happened when the

original appellant - Mohammad was travelling in a

Tata Sierra jeep on Pune - Solapur road and was

dashed by the aforesaid tanker. In the said

accident, appellant Mohammad had received severe

injuries which resulted in making him permanent

disable to the extent of 40%.

3) Original appellant - Mohammad died

during pendency of the claim petition and even

before his evidence was recorded in the claim

petition. The petition was, therefore, decided

on the basis of the documents placed on record

pertaining to the medical expenses incurred on

the medical treatment of deceased Mohammad and

the permanent disability which was incurred by

him in the alleged accident.

                                       4                          FA 631/2004

  4)               It   was   the   contention   of   the   original 

  appellant   -   claimant     that   in   the   accident   so 

happened, he received several severe injuries and

also incurred permanent disablement It was also

contention of the appellant that, he was required

to spend huge amount on his medical treatment.

The appellant had, therefore, claimed

compensation of Rs.5,00,000/- from the owner and

insurer of the tanker as well as owner and

insurer of the Tata Sierra jeep. The appellant

had placed on record the permanent disability

certificate and the medical papers pertaining to

his treatment along with hospital and medicine

bills.

5) The Tribunal, on consideration of the

oral and documentary evidence brought on record

awarded the compensation of Rs.95,000/-.

According to the appellants, the amount of

compensation as has been awarded is unjust and

improper and, therefore, the present appeal has

been filed seeking enhancement in the amount of

5 FA 631/2004

compensation.

6) Learned Counsel appearing for the

appellants submitted that the Tribunal has

grossly erred in awarding compensation of only

Rs.15,000/- for the loss of income suffered by

deceased Mohammad because of the injuries caused

to him. The learned Counsel further submitted

that the document of income tax clearance which

was placed on record, was clearly evidencing that

the firm of deceased Mohammad was earning a

sumptuous income since last few years. The

learned counsel, taking me through the document

at Exhibit-41-C, submitted that the total

contract amount received to the firm of the

deceased in the year 1997-1998 was

Rs.1,25,77,809/-. The learned Counsel submitted

that the Tax deducted at source for the said year

was Rs.7,62,239/-. The learned Counsel submitted

that this evidence has been ignored by the

Tribunal and a meager sum of Rs. 15,000/- has

been awarded to the claimant towards loss of

6 FA 631/2004

income. The learned Counsel further submitted

that even on account of pains and suffering

permanent disability caused and the medical

expenses, the Tribunal has not awarded the just

and fair compensation. The learned Counsel,

therefore, prayed for adequate enhancement in the

amount of compensation.

7) Learned Counsel appearing for the

insurance company, opposed the submissions made

on behalf of the appellants. The learned Counsel

pointed out that age of the deceased Mohammad was

55 years when he met with the alleged accident.

The learned counsel submitted that nothing has

been brought on record to show that deceased

Mohammad was active in performing the contract

work. The learned Counsel further submitted that

even the documents placed on record by the

claimants themselves were showing that his three

sons were working with Mohammad Farhat. The

learned Counsel submitted that in such

circumstances, the income of the firm has to be

7 FA 631/2004

treated and no personal income of deceased

Mohammad can be considered. The learned Counsel

further submitted that nothing has been brought

on record to show that after death of Mohammad,

the firm, which was taking the contracts, has

stopped working. The learned Counsel submitted

that from the evidence on record, there is every

reason to believe that there was no loss of

income since three sons of deceased Mohammad were

continuing with the contract work. The learned

Counsel further submitted that there was no

evidence on record showing the personal income of

deceased Mohammad or the income tax paid by the

deceased for his personal income. In such

circumstances, according to the learned Counsel,

the Tribunal has rightly awarded the amount of

Rs.15,000/- under the head of Loss of income.

The learned Counsel submitted that in so far as

the compensation awarded under the other heads is

concerned, the Tribunal has awarded the just and

fair compensation. The learned counsel,

therefore, prayed for dismissal of the appeal.

                                       8                          FA 631/2004

  8)               After   having   heard   the   arguments   of 

learned Counsel appearing for the parties, the

only issue, which needs consideration in the

present appeal is, whether the compensation of

Rs.15,000/- awarded by the Tribunal under the

head of Loss of income, can be said to be just

and fair compensation ?

9) In so far as the compensation awarded

under other heads, I do not see any reason to

cause interference in view of the fact that

during pendency of the claim petition, original

claimant - Mohammad died.

10) I have gone through the discussion made

by the learned Tribunal on the issue of grant of

compensation on account of loss of income.

Admittedly, the income tax clearance certificate

was placed on record by the claimants so as to

show the income of deceased Mohammad. The

Tribunal has, however, seems to have misread and

mis-interpreted the said document, holding that

9 FA 631/2004

the amounts which were shown in the said

document, were pertaining to the limits of the

contract to be awarded to the firm of deceased

Mohammad. Perusal of the document at Exh. 41

shows that there was a firm by name M/s Mohmad

Farhat Deshmukh & Sons, Latur District Latur and

it was being run by Mohamad and his three sons.

The said document further reveals the particulars

as about the total contract amount received to

the said firm in the preceding five years, i.e.

from 1994-1995 to 1998-1999. The document

further shows that in the year 1997-1998, the

contract amount received to the said firm was

Rs.1,21,77,809/-. The document further reveals

that in the said year, the income tax of

Rs.7,62,239/- was deducted at source. Even if it

is accepted that it was a firm, and the sons of

Mohammad were partners in the said firm, the role

of deceased Mohammad being the Head of the

partnership firm, cannot be ignored and kept out

of consideration. Even if it is accepted that it

was the income of the firm, due credit will have

10 FA 631/2004

to be given to original claimant - Mohammad for

his contribution in the said firm.

11) Having considered the evidence on

record, it is unreasonable to hold that the

income of deceased Mohammad will be around Rs.

15,000/- a month. From the evidence on record,

there is reason to believe that at least for few

months, deceased Mohammad could not have been

participated in the firm's activities and even

thereafter till his death, may not have

effectively participated in the working of the

firm, the loss of income suffered on that count

was certainly more than Rs. 15,000/- Though it

is difficult to reach to any conclusion as about

the actual personal income of Mohammad, I have no

doubt in my mind that it was certainly more than

Rs. 15,000/- and loss caused was much more than

that. From the evidence on record, I deem it

appropriate to enhance the amount of compensation

under the said head from Rs.15,000/- to Rs.

50,000/-. The total compensation payable will be

11 FA 631/2004

thus Rs.1,30,000/-. The appellant shall be

entitled to receive the interest on the enhanced

amount of compensation at the rate as has been

awarded by the Tribunal from the date of the

claim petition till its realization. Award be

modified accordingly.

12) The appeal stands disposed of in

aforesaid terms. Pending civil application, if

any, stands disposed of.

(P.R.BORA) JUDGE

bdv/