National Insurance Co Ltd vs Balasaheb Kishanrao Phulari & Ors
2017 Latest Caselaw 2798 Bom

                                     1                    FA NO.733/2006

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                        FIRST APPEAL NO.733 OF 2006

  National Insurance Co.Ltd.
  Having its Head office and
  Registered office at 3,Middleton
  Street, Kolkata, a branch office at
  Latur and a Divisional office at 
  Hazari Chambers, Station road,
  Aurangabad, now through the
  Asstt. Divisional Manager, at 
  Aurangabad.                       =    APPELLANT/S
                                    (orig.Resp.No.4)

           VERSUS

  1)       Balasaheb s/o Kishanrao Phulari
           Age: 40 Yrs., occu. Service,
           R/o Malke Galli, Latur.

  2)       Ashwini d/o Balasaheb Phulari,
           Age: 10 yrs.,

  3)       Arti d/o Balasaheb Phulari,
           Age: 8 Yrs.

  4)       Swati d/o Balasaheb Phulari,
           Age: 6 yrs.

           (Resp.Nos. 2 to 4 being minors,
           are Under Guardianship of their
           natural father, Resp.No.1 -
           Balasaheb Phulari)           = RESPONDENTS
                                        (orig.claimant Nos.
                                         1 to 4)

  5)       Haridas s/o Narayan Kendre,
           Age: 33 Yrs., occu. Bus driver
           R/o ST Depot, Ahmedpur.      =  RESPONDENT
                                        (orig.Resp.No.1.)

  6)       Divisional Controller,
           Maharashtra State Regional 
           Transport Corporation, Laatur =  RESPONDENET
                                        (orig.Resp.No.2.)




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                                          2                      FA NO.733/2006


  7)       Sow. Uma w/o Sanjiv Limaye
           Age: 40 Yrs., occu. Business,
           R/o Karad Colony, Infront of
           Rest House, Ahmedpur.         =  RESPONDENT
                                         (orig.Resp.No.3.)


                                   -----
  Mr.RC   Bora,   Adv.   h/for   Mr.   PP   Bafna,Advocate   for 
  Appellant;

  Respondent   Nos.1   to   4   are   served   through   paper 
  publication;

  Ms.RD Reddy, Adv.for Resp.Nos. 5 & 6.

  Mr.DA   Mane,   Adv.   h/for   Mr.   Shri   Milind   Patil,   Adv. 
  For Resp.No.7;
                                 -----
                               CORAM :  P.R.BORA, J.

DATE :

6 th

June,2017.

ORAL JUDGMENT:

1) Heard. The appellant has filed the

present appeal against the Judgment and Award

dated 18th March, 2006 passed by the Motor

Accident Claims Tribunal, at Latur (for short,

the Tribunal) in MACP No.159/2002.

2) Respondent Nos. 1 to 4 had filed the

aforesaid claim petition claiming compensation on

account of death of Premala @ Vijaymala w/o

3 FA NO.733/2006

Balasaheb Phulari in a motor vehicle accident

happened on 10th May 2002 having involvement of an

ST bus bearing registration No.MH-20-D 1773 and a

mini bus bearing registration No. MH-26-C 4586.

3) The learned Tribunal vide the impugned

Award partly allowed the claim petition against

the owner of the mini bus and the present

appellant, i.e. insurer of the said mini bus.

The Tribunal has awarded the compensation

amounting to Rs.2,90,000/- to Respondent Nos.1 to

4, i.e. the original claimants.

4) Shri R.C.Bora, holding for Shri Bafna,

learned Counsel appearing for the appellant -

Insurance company, at the outset, submitted that

though in the memo of appeal, the impugned award

has been challenged on several grounds, the

insurance company is pressing only one ground and

disputing the impugned award only to the extent

of quantum of the compensation. The learned

Counsel further submitted that the Tribunal has

4 FA NO.733/2006

grossly erred in holding that deceased Premala,

at the time of her death, was earning the income

of Rs.2250/- per month. The learned Counsel

further submitted that there is absolutely no

evidence in regard to the income of deceased

Premala.

. According to the learned Counsel, in the

circumstances, the Tribunal must have assessed

the amount of dependency compensation by holding

the monthly income of deceased Premala on the

notional basis i.e. Rs.15,000/- per annum and

deducting 1/3rd from the said amount towards the

personal expenses of the deceased, should have

determined the amount of dependency compensation.

The learned Counsel further submitted that the

Tribunal has also grossly erred in awarding the

huge sum of Rs.20,000/- towards the funeral

expenses. The learned Counsel, therefore, prayed

for modification of the impugned award by

assessing the dependency compensation by holding

the income of deceased Premala on the notional

basis and reducing the amount of compensation

5 FA NO.733/2006

awarded towards the funeral expenses.

5) Learned Counsel appearing for the

respondents resisted the submissions made on

behalf of the appellant - insurance company. The

learned Counsel supported the impugned award.

The learned Counsel submitted that in fact,

sufficient evidence was adduced by the claimants

showing that the deceased Premala was doing

business of making flowers and preparing garlands

and from the said work, was earning around

Rs.10,000/- to Rs.15,000/- per month. The

learned Counsel further submitted that the

Certificate was also produced on record by the

claimants, evidencing that deceased Premala was

running a shop of flowers. The learned Counsel

submitted that since the Tribunal has awarded the

reasonable amount of compensation, no

interference is called for in the impugned award.

The learned Counsel, therefore, prayed for

dismissal of the appeal.

                                      6                    FA NO.733/2006

  6)               I   have   carefully   considered   the 

submissions made on behalf of the learned Counsel

for the respective parties. I have also perused

the impugned judgment, the evidence on record and

the material placed on record. As has been

clarified by the learned Counsel appearing for

the appellant - insurance company, the challenge

to the impugned award is restricted to the

quantum of the compensation only, as has been

awarded by the learned Tribunal.

7) The first objection raised by the

appellant/insurance company is that there was no

sufficient evidence as about the income of

deceased Premala and in absence of any such

evidence, her income must have been held to be

Rs.15,000/- per annum on the notional basis. As

was submitted by the learned Counsel for the

appellant, the dependency compensation shall have

been determined by the Tribunal by taking the

multiplicand of Rs.10,000/-.

8) From the material on record, it is

difficult to accept the contention raised by the

7 FA NO.733/2006

learned Counsel. In Para 14 of the impugned

judgment, the learned Tribunal has observed that

the claimants have placed on record the

Certificate issued by the Chief Officer,

Municipal Council, Udgir, demonstrating that

deceased Premala was running a shop of flowers.

The claimants have thus sufficiently proved that

deceased Premla was running a flower shop. It

was the contention of the claimants that deceased

Premala was earning from her flower shop the

income of Rs.10,000/- to Rs.15,000/- per month.

The Tribunal in absence of sufficient evidence in

that regard, has, however, declined to hold the

income of deceased Premala to the said extent.

The Tribunal by making due discussion has held

the monthly income of deceased Premala to the

tune of Rs.2250/-. It does not appear to me that

the Tribunal has committed any error in holding

the income of the deceased Premala to the tune of

Rs. 2250/- per month. The Tribunal has then

rightly deducted 1/3rd amount from the said income

towards personal expenses and has assessed the

8 FA NO.733/2006

dependency compensation by applying appropriate

multiplier. Having regard to the age of the

deceased Premala, the Tribunal has rightly

applied the multiplier of 15 and has determined

the amount of compensation to the tune of Rs.

2,70,000/-. I see no reason to interfere in the

amount of compensation so determined by the

Tribunal.

9) It was the further objection of the

appellant/insurance company that the amount of

Rs.20,000/-, as awarded by the Tribunal towards

the funeral expenses, is on unreasonably higher

side, also has not impressed me much. The

tribunal has in its discretion awarded the amount

of Rs.20,000/- not only towards the funeral

expenses, but also for loss of love and

affection, company and consortium. The objection

so raised by the appellant - insurance company is

thus liable to be rejected.

10) After having considered the entire

material on record, it does not appear to me that

any interference is required in the impugned

9 FA NO.733/2006

Judgment and Award. The appeal being devoid of

any merit, deserves to be dismissed and is

accordingly dismissed, however, without any order

as to costs. Pending civil application, if any

stands disposed of.

11) The original claimants are permitted to

withdraw the amount of compensation, if any,

deposited by the appellant - insurance company in

this Court together with interest accrued

thereon.

(P.R.BORA) JUDGE

bdv/ fldr 8.6.17