Bombay High Court
The National Insurance Co Ltd vs Mrs Sunita Kamble & Ors on 6 June, 2017
Bench: P.R. Bora
1 FA NO.982 OF 2006
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.982 OF 2006
National Insurance Co.Ltd.,
having it's Head Office and
Registered Office at 3, Middleton
Street, Kolkatta, a Branch Office
at Latur and a Divisional Office at
Hazari Chambers, Station Road,
Aurangabad, Now through the
Divisional Manager at Aurangabad.
...APPELLANT
(Orig.Respdt.No.2)
VERSUS
1. Smt. Sunita w/o Avinash Kambale,
Age 23 years, Occu. Household;
R/o. Kini (Yelladevi), Tq. Udgir,
Dist. Latur.
2. Padmabhushan s/o Avinash Kambale,
Age 3-1/2 months - a minor - u/g of
his natural mother Smt. Sunita
w/o. Avinash Kambale, Respdt.No.1.
3. Pranita d/o Avinash Kambale,
Age 7 months - a minor, u/g of
her natural mother Smt.Sunita
Avinash Kamble, Respdt. No.1.
4. Hausabai w/o Raghunath Kamble,
Age 60 years, Occu. Household;
R/o Kini ( Yelladevi), Tq. Udgir,
Dist. Latur.
...RESPONDENTS
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2 FA NO.982 OF 2006
(Respdts.No.1 to 4:
Orig. Claimants No.1 to 4)
5. Mrs. Uma w/o Sangiv Limaye,
Age Major, Occu. Business,
R/o Karad Nagar, Ahmedpur,
Tq. Ahmedpur, Dist. Latur.
...RESPONDENT
(ORIG.RESPDT.NO.1)
(6. Haridas s/o Narayan Kendre,
Age 33 years; Occu. Driver;
r/o M.S.R.T.C. Department,
Ahmedpur.)
(Respondent no.6 deleted as per Hon'ble
Court's order dt.5.9.2006)
RESPONDENTS
(Orig.Respdt.No.3)
7. Divisional Controller, Maharashtra
State Road Transport Corporation,
Division, Latur.
...RESPONDENT
(ORIG.RESPDT NO.4)
...
Shri R.C.Bora, Advocate, h/f Mr. P.F.Bafna, Advocate for
appellant.
Mr.Milind Patil, Advocate for respondent no.5.
Mrs. R.D.Reddy, Adv., for respondent no.7.
...
CORAM: P.R.BORA, J.
DATE : JUNE 6th, 2017
***
JUDGMENT:
1. The appellant Insurance Company has filed the
3 FA NO.982 OF 2006
present appeal against the judgment and award dated 7 th
of October, 2004, passed by the Motor Accident Claims
Tribunal at Udgir in M.A.C.P.No.162/2002 ( Old MACP
No.246/2001).
2. Respondent nos. 1 to 4 had filed the aforesaid
claim petition claiming compensation on account of death
of Avinash Raghunath Kamble who died in a vehicular
accident occurred on 10th of May, 2001, having
involvement of a mini Bus bearing Registration No.MH-26-
C-4584 and State Transport Bus bearing registration No.
MH-20-D-1773. Learned Tribunal after having assessed
the evidence brought before it has allowed the claim
petition against the owner and insurer of the Mini Bus.
The petition has been dismissed against the driver of the
State Transport Bus and the State Transport Corporation.
Aggrieved thereby, the Insurance Company has preferred
the present appeal.
3. Shri R.C.Bora, learned Counsel, holding for Shri
P.P.Bafna, learned Counsel for the appellant Insurance
Company, at the outset submitted that though the
4 FA NO.982 OF 2006
Insurance company has raised various grounds in
exception to the impugned award, the only ground which
is now being pressed by the Insurance Company is in
relation to the quantum of compensation. Learned
counsel submitted that without any cogent and sufficient
evidence, the Tribunal has awarded the compensation of
Rs.10,000/- inclusive of No Fault Liability compensation.
Learned Counsel further submitted that the learned
Tribunal has failed in appreciating that when the income of
the deceased is on the higher side, while determining the
amount of dependency compensation, the age of the
deceased cannot be the only factor while selecting the
multiplier. Learned counsel submits that in view of the
income of the deceased, the Tribunal should not have
applied the multiplier of 18 and in its place ought to have
applied multiplier of 13.
4. Learned Counsel further submitted that the
Tribunal has also erred in awarding non pecuniary
damages. Learned Counsel, more particularly, assailed
the grant of Rs.25,000/- by the Tribunal towards pains and
agony. Learned Counsel submitted that since the claim
5 FA NO.982 OF 2006
was arising out of the fatal accident, there was no
propriety in awarding compensation to the claimants for
pains and agony. Learned Counsel submitted that when
the Tribunal has awarded compensation of Rs.50,000/- to
the claimants towards loss of love and affection and has
also awarded separate compensation of Rs.25,000/- to the
widow of the deceased for loss of consortium, the Tribunal
could not have again awarded compensation of
Rs.25,000/- towards pains and agony. Learned Counsel
further submitted that the amount of Rs.5,000/- granted
by the Tribunal towards funeral expenses is also on higher
side. Learned Counsel, therefore, prayed for modifying
the award by redetermining the payable compensation.
5. Learned Counsel appearing for the original
respondents supported the impugned judgment.
6. I have carefully considered the arguments
advanced by the learned Counsel appearing for respective
parties. I have perused the impugned judgment, the
evidence on record and the other material available on
record. There is no dispute that deceased Avinash was
6 FA NO.982 OF 2006
serving as a Teacher and was drawing the net monthly
salary to the tune of Rs.6,260/-. The Tribunal, while
determining the amount of dependency compensation, has
rightly deducted one third of the total income of the
deceased towards personal expenses and has determined
the compensation holding the dependency of the claimants
for the income of Rs.4,173/- per month which annually
comes to Rs.50,076/- by multiplying the same with the
multiplier of 18. In so far as the selection of multiplier is
concerned, it is the objection raised on behalf of the
Insurance Company that having regard to the income of
the deceased on higher side, the multiplier of 13 should
have been applied instead of multiplier of 18. I am not
convinced with the argument so advanced. The income of
the deceased to the tune of Rs.6260/- per month cannot
be said to be on higher side. In the circumstances,
having regard to the age of the deceased of 28 years, the
Tribunal has rightly applied the multiplier of 18. Thus,
in so far as the amount of dependency compensation is
concerned, it does not appear to me that the Tribunal has
committed any error in calculating the said amount.
7 FA NO.982 OF 2006
7. The Tribunal has awarded a sum of Rs.50,000/-
towards loss of love and affection and the amount of
Rs.25,000/- to the widow of the deceased towards loss of
consortium. Though it was sought to be canvassed by the
learned Counsel appearing for the appellant that the
amounts as aforesaid awarded by the Tribunal are on
higher side, the contention so raised is liable to be
rejected. It does not appear to me that the compensation
so awarded by the Tribunal under the heads of loss of love
and affection and loss of consortium are in any way
unreasonable or excessive. However, there is substance in
the objections raised on behalf of the appellant as against
the award of compensation to the tune of Rs.25,000/-
towards pain and suffering. No such amount could have
been awarded by the Tribunal. Present was not the
petition filed by an injured claiming compensation on
account of injuries caused to him or disablement sustained
by him in the accident. In fact, when the Tribunal has
awarded the compensation towards loss of love and
affection and towards consortium, the Tribunal could not
have again awarded the compensation towards pain and
sufferings. To that extent, the impugned award needs to
8 FA NO.982 OF 2006
be modified.
7. In view of the discussion made above, the
appellants are held entitled to the total compensation
amounting to Rs.9,25,000/- instead of the compensation
of Rs.9,50,000/- determined by the Tribunal. Save and
except decrease in the amount of compensation as
aforesaid, the remaining part of the impugned award is
kept as it is. Revised award be prepared accordingly.
The Appeal is, thus, partly allowed. No costs.
(P.R.BORA)
JUDGE
...
agp/982-06fa
