Bombay High Court
United India vs Smt Mangala on 8 June, 2017
Bench: Dr. Shalini Phansalkar-Joshi
fa386.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.386 OF 2004
United India Insurance Co.
Limited, United India House,
24, Vatis Road, madras - 600 014,
Regional Office - Himalaya House,
380, Chowringhee Road (2nd Floor),
Calcutta - 700 017, through
Regional Manager, Nagpur Regional
Office, Shankar Nagar Square,
Nagpur - 440 010. ....... APPELLANT
...V E R S U S...
1] Smt. Mangala wd/o Kishore Tete,
Aged 29 years, Occ: Household.
2] Ashwin s/o Kishore Tete,
Aged 10 years, Occ: Student (minor).
3] Babul s/o Kishore Tete,
Aged 8 years, Occ: Student (minor).
Nos.2 and 3 through their mother/
guardian No.1 Smt. Mangala wd/o
Kishore Tete.
Deleted as 4] Smt. Annapurnabai wd/o Zibalji Tete,
per order dt.
02.11.04 Aged 75 years (Dead).
All residents of Old Subhedar Layout,
Plot No.88, Nagpur. ....... RESPONDENTS
-------------------------------------------------------------------------------------
Shri D.N. Kukday, Advocate for Appellant.
None for Respondents.
-------------------------------------------------------------------------------------
::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 23:59:45 :::
fa386.04.J.odt 2
CORAM: SMT. DR. SHALINI PHANSALKAR-JOSHI, J.
th
DATE: 8
JUNE, 2017.
ORAL JUDGMENT
1] By this appeal the judgment and award dated
14.11.2003 passed by the Motor Accident Claims Tribunal,
Nagpur in M.A.C.P. No.281/1995 is challenged by the
original respondent No.3-the insurance company of the
offending vehicle.
2] Briefly stated, facts of the case are as under:
Kishore, the husband of respondent No.1, died in
a motor accident dated 04.12.1994. The offending vehicle
was the truck bearing No.WB-23 088 and belonging to the
original respondent No.1. The truck was insured with the
present appellant. As per the case of the claimants, the truck
was being driven in a rash and negligent manner and as a
result, deceased Kishore, who was proceeding on his Scooter
No.MH-31 4585, sustained the dash of the truck. In the said
accident, Kishore suffered the injury to which he succumbed.
The respondent No.1 claimant, being the widow and having
two minor sons filed the petition against the truck owner and
the insurance company, seeking total compensation of Rs.6
lakhs.
3] This claim petition came to be resisted by the
appellant insurance company alone and proceeded ex parte
against the original respondent Nos.1 and 2, the truck owner
and truck driver respectively. The Tribunal, on the basis of
evidence produced before it held that the accident has
occurred due to the rash and negligent driving of the truck
and accordingly held the claimants entitled for the
compensation of Rs.6,75,000/-.
4] This judgment of the Tribunal is challenged in this
appeal by learned counsel for the appellant mainly on the
ground that the amount of compensation assessed by the
Tribunal is not correct. It is submitted that absolutely no
documentary or oral evidence was produced on record by the
claimants to show that the deceased was earning the income
of Rs.5000/- per month. The Tribunal has proceeded
simpliciter on the basis of the vague averment made in the
claim petition to that effect. Secondly, it is submitted that
even after the death of Kishore, the jewelery business of the
deceased is being conducted by his widow, the respondent
No.1. This fact is admitted by her in her evidence also. Hence
according to learned counsel for the appellant, there was no
loss of income or loss of dependency. Hence the amount of
compensation as awarded by the Tribunal being on higher
side and without any foundation in the evidence on record, it
needs to be modified, holding the notional income of the
deceased to be Rs.3000/- per month.
5] On perusal of the judgment of the Tribunal, it can
be seen that in para 8, the Tribunal held that though in oral
evidence the widow has stated that deceased used to earn the
income of Rs.10,000/- to Rs.12000/- per month, however, in
her petition, which was drafted under her own instructions, it
was mentioned that his monthly income was of Rs.5000/- to
Rs.6000/-. The Tribunal, therefore, held that as there is no
documentary evidence produced on record by the claimant to
prove the income of Rs.12,000/- per month, her pleading
regarding his earning of Rs.5000/- p.m. needs to be accepted.
The learned Tribunal further held that though widow has also
admitted that she is managing the jewelry business after the
death of her husband, it was because she has no other way,
but to do something for livelihood and placing reliance Smt.
Halimabi & Ors. v. Rakesh Kumar Mukhasia & Ors. reported in
I (2003) ACC 488, the Tribunal held her entitled even for the
compensation under the loss of dependency.
6] Now coming to the first submission advanced by
the learned counsel for the appellant it may be true that no
documentary evidence was produced on record by the
claimant to show that her husband was earning Rs.10,000/-
to Rs.12,000/- from his jewelry business, however, her
evidence proves that her husband was giving her Rs.6000/- to
Rs.8000/- per month for household expenses.
Therefore, unless he was getting some amount which may be
in the range of Rs.10,000/- to Rs.12,000/- per month, her
husband would not have been in a position to give the
amount of Rs.6000/- to Rs.8000/- per month for her
household expenses. Her evidence further shows that even
after the death of her husband, she is earning income of
Rs.5000/- to Rs.6000/- p.m. from the jewelry business.
Hence it follows that deceased must have been earning
substantial amount from the said business. In such a
situation, it cannot be said that the Tribunal has committed
any error in holding the approximate income of the deceased
to be Rs.5000/- per month and, accordingly calculated the
amount of compensation.
7] The submission advanced by the learned counsel
for the appellant is that if the source of income, the business
continued to be run by the claimants even after the death of
deceased, hence there is no loss of dependency. In support of
this, he has relied upon the various decisions of the Hon'ble
Supreme Court, like New India Assurance Co. Ltd. vs. Yogesh
Devi and Ors. reported in I (2012) ACC 649 (SC), National
Insurance Co. Ltd. vs. Keshav Bahadur and others reported in
2004 ACJ 648 that of Calcutta High Court: United India
Insurance Co. Ltd. vs. Anumita Paul and others reported in I
(215) ACC 628 (DB) (Cal.) and New India Assurance Company
Ltd. vs. Radhika Chaturvedi reported in II (2014) ACC 49 (DB)
(All.).
8] There cannot be two opinions about the legal
proposition laid down in these authorities. However, in the
facts of the present case, in my considered opinion the
Tribunal has rightly placed reliance upon the decision of this
Court in the case Smt. Halimabi & ors. vs. Rakesh Kumar
Mukhasia & ors., 2002 (3) TAC 601 the facts of which were
similar to the facts of the present case. In that case also, there
was a shop belonging to the deceased and after his death, it
was left to the widow to eke out a living for herself and
children. In the light of the same, it was held that, "the fact
that she took over the reins of the shop would not justify the
inference that she was not entitled to compensation or that
she has derived income to the same extent, as the deceased in
the conduct of the business". It was further held that, "to
deny a widow a claim to fair compensation for herself and
her eleven children on the ground that after all, she was left
with a shop to run, would simply be a travesty of justice. The
law cannot be oblivious to social reality".
9] In the instant case also, it is clear that the
claimant-respondent No.1 is the widow of deceased who had
no other option, but to continue with the business of the
deceased when two minor children were dependent on her.
Hence it would not be just and proper to deny her the
amount of compensation, which she is entitled to receive.
10] From any angle considering the amount of
compensation which is awarded to the respondent Nos.1 to 3,
it cannot in any way be called as exorbitant or unreasonable
so as to warrant interference therein.
11] However, to some limited extent, the interference
is warranted in the impugned judgment and award of the
Tribunal, as regards the penal interest. In its operative para of
the judgment the Tribunal has directed the original
respondent Nos.1 to 3 to pay jointly and severally the amount
of compensation with a further direction that the said amount
shall be deposited within 45 days from the date of the order;
failing which the petitioner was held entitled to recover the
same from the respondents with interest at 12% per annum
from the date of petition. As rightly submitted by the learned
counsel for the appellant, this imposition of a penal rate of
interest can not be legally permissible. In the decision of
National Insurance Co. Ltd. vs. Keshav Bahadur and others
reported in 2004 ACJ 648 when similar direction was given
by the High Court, the Apex Court held that such penal
interest of rate cannot be awarded. In the words of of Hon'ble
Supreme Court, such a direction is not statutorily envisaged.
It was held that in para 14 of the judgment, as under:
14. Though section 110-CC of the Act (corresponding
to section 171 of the new Act) confers a discretion on
the Tribunal to award interest, the same is meant to be
exercised in cases where the claimant can claim the
same as a matter of right. In the above background, it
is to be judged whether a stipulation for higher rate of
interest in case of default can be imposed by the
Tribunal. Once the discretion has been exercised by the
Tribunal to award simple interest on the amount of
compensation to be awarded at a particular rate and
from a particular date, there is no scope for
retrospective enhancement for default in payment of
compensation. No express or implied power in this
regard can be culled out from section 110-CC of the Act
or section 171 of the new Act. Such a direction in the
award for retrospective enhancement of interest for
default in payment of compensation together with
interest payable thereon virtually amounts to the
imposition of penalty which is not statutorily envisaged
and prescribed. It is, therefore, directed that the rate of
interest as awarded by the High Court shall alone be
applicable till payment, without the stipulation for
higher rate of interest being enforced, in the manner
directed by the Tribunal. (Emphasis supplied)
12] In the present case, the Tribunal has in para 2 of
operative para directed the payment of interest at the rate of
9% per annum from the date of petition and in para 3 of the
operative order, directed the payment of interest at the rate
of 12% per annum from the date of petition, in case the
original respondents failed to pay the compensation within 45
days from the date of order. This direction of penal interest is
clearly against the law, as laid down by the Hon'ble Supreme
Court. Hence, the direction to that effect as given by the
Tribunal of imposing penal rate of interest at the rate of 12%
per annum has to be set aside.
13] Accordingly, it is directed the amount of
compensation is to be paid at the rate of 9% per annum from
the date of the petition. To that extent only the judgment and
order of the Tribunal stands modified. Otherwise appeal
holds no merits and stands dismissed.
14] On the request of the learned counsel for the
appellant, time of three weeks is granted to deposit in the
Court, the balance amount of consideration as already part of
the consideration is deposited in the Court at the time of
granting ad interim stay to the execution of the award.
JUDGE
NSN
