Bombay High Court
New India Assurance Co Ltd vs Pundlik Gangadhar Mote & Ors on 31 July, 2017
Bench: P.R. Bora
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1616 OF 2004
The New India Assurance Co. Ltd.,
Branch Latur,
Through Divisional Manager,
Adalat Road, Aurangabad.
.... APPELLANT.
VERSUS
1. Pundlik s/o Gangadhar Mote,
Age : 55 years, occu.: Agril.,
R/o.: Dawangaon, Tq. Udgir.
2. Parvatibai W/o. Pundlik Mote,
Age : 50 years, Occu.: Household,
R/o.: Dawangaon, Tq. Udgir.
3. Kum. Shobha D/o. Pundlik Mote,
Age : 12 years, Occu.: Education Minor,
4. Kum.Sangita D/o. Pundlik Mote,
Age : 10 years, Occu.: Minor
Both Minorso Are R/o.; of Real Father
Pundlik Gangadhar Mote, Claimant No.1.
5. Sayed Mohammadsab Sayed Ismail,
Age : Major, Occu.: Business,
R/o.: Hadoli, Tq. Kandhar (Deleted)
(Note : Service of Notice not required)
6. Rajendrakumar J. Murthi,
Age : Major, Occu.: Business,
R/o.: Janta Zopadpatti Kashimira,
Bhyandar- Thane.
7. Pralhad s/o. Narsing Gaikwad,
Age : Major, Occu.: Auto Driver,
(Note : Service of Notice not required)
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8. National Insurance Co. Ltd.,
Hanuman Chowk, Latur. Dist. Latur.
.... RESPONDENTS.
(Resp. Nos.1 to 4
Org. Claimants,
Resp. Nos. 5 to 8
Org. Respondents)
......
Advocate for Appellant : Shri. S G Chapalgaonkar
Advocate for Respondents Nos. 1 to 4 : Shri. Milind Patil
Advocate for Respondent No.8 : Shri R. C. Bora h/f Shri P. P. Bafna
...
CORAM : P. R. BORA, J.
DATE : 31.07.2017
ORAL JUDGMENT :
1) The Insurance Company has filed the present appeal
challenging the judgment and award passed by the Motor Accident
Claim Tribunal at Udgir in MACP No. 09 of 2002 (Old No. 458 of 1998)
decided on 10th September, 2004.
2) The present respondents Nos. 1 to 4 had filed the aforesaid
claim petition claiming compensation on account of the death of
Gangadhar Pundlik Mote, alleging the same to have been caused in a
vehicular accident happened on 25th June, 1997 having involvement of a
rickshaw bearing registration No. MH-24-A-9100 and a Truck bearing
registration No. MH-04-P-6406. It was the case of the claimants that the
aforesaid truck gave a dash to the aforesaid autorickshaw by which
deceased Gangadhar was travelling at the relevant time and in the
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accident so happened Gangadhar died as a result of injuries caused to
him in the said accident. The claimants had, therefore, claimed the
compensation against the owner and insurer of the offending truck as
well as the owner and insurer of the autorickshaw by which deceased
Gangadhar was travelling when the accident happened. The learned
Tribunal after having assessed the oral and documentary evidence
brought on record held the claimants entitled to get the total
compensation of Rs.4,63,000/- inclusive of No Fault Liability
compensation and the amount of compensation was made jointly
severally payable by the owner and insurer of the offending truck.
Aggrieved by, the Insurance Company with which the truck was was
insured, has filed the present appeal.
3) Shri Chapalgaonkar, learned Counsel appearing for the
appellant criticised the impugned judgment and award on various
grounds. The learned Counsel submitted that though the alleged
accident was a clear case of composite negligence, the Tribunal has
wrongly attributed the entire blame on the driver of the truck. The
learned Counsel further submitted that the Tribunal has also erred in
determining the amount of compensation. The learned Counsel
submitted that while assessing the amount of compensation, Tribunal
has applied wrong multiplier. The learned Counsel submitted that since
the deceased was a bachelor and the parents claimed to be his
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dependents, the Tribunal must have applied the multiplier based on the
age of the parents and not on the basis of the age of the deceased. The
learned Counsel further submitted that in view of the fact that deceased
was the bachelor, the Tribunal must have deducted 1/2 of his total
income towards his personal expenses, whereas the Tribunal has
deducted only 1/3rd of his income towards the personal expenses.
4) In order to support his argument, the learned Counsel relied
upon the judgment of the Division Bench of this Court in the case of
New India Assurance Company Limited Vs. Ramrao Lala Borse, 2015
SCC OnLine Bom 6564 : 2016 ACJ 2791 and judgment delivered by
the single Judge of this Court in the case of United India Insurance
Company Ltd. Vs. Sobha Amarsingh Rajput, 2016 SCC OnLine Bom
8996.
5) Shri Milind Patil, learned counsel appearing for the
respondents i.e. original claimants supported the impugned judgment
and award. The learned Counsel submitted that the Tribunal has not
committed any error in applying the multiplier of 17. The learned
counsel relying upon the judgment of the Kerala High Court in the case
of Annamkutty Vs. Manager, United India Insurance Co. Ltd., 2013
CJ (Ker) 829 submitted that the law now stands settled that age of the
deceased is only relevant for selection of multiplier while determining
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the amount of dependency compensation. The learned counsel
submitted that in the judgment of Kerala High Court the judgment of the
Hon'ble Apex Court in the case of Reshma Kumari & Ors vs Madan
Mohan & Anr, reported in (2013) 9 SCC 65 has been referred and
relied upon, wherein the the Hon'ble Apex court has clearly held that the
age of the dependents has no nexus with the computation of
compensation and in determining amount of compensation in accident
claims the age of the deceased is the only relevant factor.
6) The learned Counsel further submitted that along with the
parents since two minor sisters of the deceased were also depending
upon his income the Tribunal has not committed any error in deducting
only 1/3rd of his total income towards personal expenses. The learned
Counsel further submitted that the Tribunal has, on the contrary, erred
in not considering the future prospects of the deceased while assessing
the amount of compensation. The learned Counsel submitted that
having regard to the age of the deceased 50% of his annual income must
have been added as incremental enhancement. The learned Counsel
submitted that in the facts as above even if the this court inclines to
reduce the amount of compensation either on account of application of
multiplier or deduction towards the personal expenses, since the amount
of compensation requires to be enhanced considering the future
prospects of the deceased, ultimately there may not be change in the
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amount of compensation as determined by the tribunal. The learned
Counsel, therefore, prayed for maintaining the impugned judgment and
award without causing any interference therein.
7) Shri Bora, learned Counsel appearing for the respondent
No.8 Insurance Company supported the impugned judgment and award.
8) After having considered the submissions advanced by the
learned Counsel appearing for the respective parties and on perusal of
the impugned judgment, the first issue which falls for my consideration
is, whether the multiplier applied by the Tribunal of 17 while
determining the amount of compensation can be held proper. Age of
the deceased was admittedly 22 years and the age of his parents is in
between 45 to 50 years. Considering the age of the deceased, the
Tribunal has applied the multiplier of 17 while determining the amount
dependency compensation. As has been held by the Division Bench of
this Court in the case of New India Assurance Company Limited Vs.
Ramrao Lala Borse (supra), in the case where deceased is a bachelor in
selection of multiplier the age of the parents of the deceased will be
relevant. In the case of United Insurance Company Ltd. Vs. Sobha
Amarsingh Rajput (supra), the learned single Judge of this Court, after
having considered almost all the previous judgments on the issue, has
held that when the parents are dependents, the relevant factor for
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assessing the amount of compensation, the age of the parents will only
be relevant and not the age of their bachelor son or daughter. The
learned single Judge in her judgment has distinguished the judgment of
the Hon'ble Apex Court in the case of Reshma Kumari (supra) also on
which the reliance was placed by the learned Counsel for the original
claimants. The learned single Judge placing reliance on the decision of
the Hon'ble Supreme Court in the case of K.S.R.T.C. Vs. Susamma
Thomas (1994(1) KLT 67 (SC) and in the case of UP State Road
Transport Corporation Vs. Trilok Chandra (1996(2) KLT 218 (SC) has
held that the choice of the multiplier would depend on the age of the
deceased or the age of the claimants whichever is higher and in case of
the death of a bachelor it would be certainly on the basis of the average
age of the parents and not of the age of the deceased bachelor.
9) In the instant matter the learned Tribunal has held the
income of the deceased to the tune of Rs.36,000/- and deducting 1/3 rd
of the said annual income has calculated the amount of compensation
by applying the multiplier of 17, which comes to Rs.4,08,000/-. In
addition to the aforesaid compensation, the Tribunal has awarded a sum
of Rs.5,000/- towards funeral expenses, Rs.25,000/- for pains and agony
and Rs.25,000/- for loss of love and affection. The Tribunal has, thus,
held the claimants entitled for the total compensation of Rs.4,63,000/-
inclusive of No Fault Liability amount.
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10) In view of the discussion made herein above and having
regard to the law laid down in the judgments discussed herein above in
regard to the application of multiplier, incremental enhancement for
future prospects and deduction towards the personal expenses of the
deceased bachelor the amount of compensation will have to be
redetermined.
11) In so far as income of deceased is concerned, there is no
dispute that it was around Rs.3,000/- per month i.e. Rs.36,000/- p.a.
Age of the deceased was admittedly 22 years on the date of accident.
Having regard to the age of the deceased, 50% of his total income will
have to be added by way of incremental enhancement in his existing
annual income towards future prospects. Nationally, the same will be
thus, Rs.54,000/- (36,000 + 18,000) and on the basis of this income the
compensation will have to be determined. In view of the fact that the
deceased was a bachelor, 1/2 of his total income will have to be
deducted towards his personal expenses. Though it was sought to be
canvassed by the learned Counsel for the claimants that the minor
sisters of the deceased are also depending upon him. I am not
convinced with the submission so made. Admittedly, the parents of
respondent Nos. 3 & 4 are alive. It is not the case of the claimants that
claimant No.1 i.e. father of the deceased does not have any income or
earning source. In the circumstances, it is difficult to accept that
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respondent Nos. 3 & 4 were depending upon the income of the
deceased. In the circumstances, for assessing the amount of dependency
compensation 1/2 of the total income of the deceased can only be
considered as a multiplicand. As noted herein above, considering the
age of the parents after deduction the same will be Rs.27,000/-. As
elaborately discussed herein above, the appropriate multiplier in the
present case will be of 11. By applying the said multiplier the amount of
dependency compensation comes to Rs.2,97,000/-.
12) As noted herein above, the Tribunal has awarded the
compensation of Rs.55,000/- towards non-pecuniary damages. The
compensation so awarded is apparently inadequate and therefore, needs
to be appropriately enhanced. Taking into account that the alleged
accident had happened in the year, 1997, I deem it appropriate to
enhance the amount of compensation towards non-pecuniary damages
by Rs.50,000/- in addition to the amount of Rs.55,000/- already
awarded by the Tribunal. The applicants are, thus, held entitled to the
total compensation of Rs.4,02,000/- inclusive of No Fault Liability
compensation ( Rs.2,97,000 + Rs.1,05,000/-). In the circumstances of
the case, it appears to me that this would be the just and fair
compensation payable to the claimants. The impugned award be
accordingly modified. Save and except the decrease in the amount of
compensation from Rs.4,63,000/- to Rs.4,02,000/-, the remaining part
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of the award is maintained as it is. The amount of compensation if any
deposited by the Insurance Company before this Court or before the
Tribunal shall be remitted in favour of the claimants in accordance with
the modified award. The amount deposited by the Insurance Company
if fails short to satisfy the modified award, the balance amount shall be
deposited by the Insurance Company before the Tribunal within two
months from the date of this order. Amount deposited if is in excess
than payable to the claimants according to the modified award, the
excess amount shall be refunded to the appellant Insurance Company
with interest if any accrued thereon. The appeal stands allowed in the
aforesaid terms.
(P. R. BORA)
JUDGE
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