Smt.Chandabai Wd/O.Gautam ... vs Laxmandas Gullmal Fulwani & Anr
2017 Latest Caselaw 3010 Bom

0906 FA 137/2004                                   1                       Judgment


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 NAGPUR BENCH, NAGPUR.
                       FIRST APPEAL NO. 137/2004 


1]      Smt. Chandabai Wd/o Gautam Wankhede, 
        Aged about 36 years, Occ: household work,

2]      Milind S/o Gautam Wankhede, 
        Aged about 17 years,

3]      Shiva S/o Gautam Wankhede, 
        Aged about 16 years,

4]      Raj S/o Gautam Wankhede, 
        Aged about 14 years,

        Nos.2 to 4 minors, by occ: student,
        through next friend-natural mother
        appellant no.1 Smt. Chandabai wd/o
        Gautam Wankhede.

        All R/o. Shewati, Post - Wadi,
        Tah. Karanja (Lad), Distt. Washim.                  APPELLANTS


                                  .....VERSUS.....


1]      Laxmandas s/o Gullumal Fulwani (dead)
        through L.Rs.

1-a]    Shri Dilipkumar s/o Laxmandas Fulwani,
        Aged about 37 years, Occ: Luxury Bus Owner,
        R/o. Sindhi Colony, Karanja (Lad),
        Tah. Karanja (Lad), Distt. Washim. 

2]      The New India Insurance Company Limited, 
        Akola, through its Divisional Manager, 
        Old Cotton Market, Akola,
        Tah. and Distt. Akola.                               RESPONDE NTS


                Shri C.A. Joshi, counsel for the appellants.
                Shri A.J. Pophaly, counsel for the respondent no.2.
                None for respondent no.1.



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 0906 FA 137/2004                             2                         Judgment


                             CORAM  : DR S.S.PHANSALKAR-JOSHI, J.

                             DATE     : JUNE 09, 2017

ORAL JUDGMENT   

This is an appeal filed by the original claimants, being

aggrieved by the judgment and award dated 07/10/2003 passed by

the Additional Member of Motor Accident Claim Tribunal, Akola in

M.A.C.P. No. 23/2002.

2] Brief facts of the appeal can be stated as follows:

Appellant no.1 is the mother, whereas appellant nos.2

to 4 are the brothers of the deceased Premsagar. On the date of

incident on 12/11/2001, deceased was traveling along with his

father on Kinetic Honda Scooter bearing no. MH-30-G-9927 from

Mangrulpir to Karanja. On the way, Luxury Bus bearing no. MH-30-

A-9981 coming from opposite side, gave dash to the scooter of the

deceased. As a result, both deceased Premsagar and his father died

in the said accident, on account of the dash given by the Luxury Bus.

The Luxury Bus was insured with respondent no.3, whereas it was

owned by respondent no.2 and driven by respondent no.1. Hence,

they are sued for the amount of compensation on account of

untimely death of the deceased. It was averred by the appellants

0906 FA 137/2004 3 Judgment

that deceased was earning Rs.1200/- per month by working in the

Xerox Centre of witness no.2 Deolal Ingole. On account of his death,

they have lost their only source of income, and hence they claimed

the compensation to the tune of Rs.4,00,000/-.

3] The respondent no.1's name was deleted from the

petition, whereas respondent no.2 remained absent though duly

served, and hence, petition proceeded ex-parte against him.

4] It was respondent no.3 alone which resisted the petition

by written statement at Exh.13, admitting the insurance of the

Luxury Bus and also the fact that it has a valid insurance at the time

of incident. However, it is denied that the accident has occurred due

to rash and negligent driving of the respondent no.3. As regards the

amount of compensation claimed, it was contended that it was

exorbitant.

5] On the basis of these pleadings, the learned Tribunal

framed the necessary issues for it's consideration. In support of her

claim, appellant no.1 examined herself and also the owner of

Vaishnali Xerox Centre, Shri Deolal Ingole, to prove that the

0906 FA 137/2004 4 Judgment

deceased was working in the said Xerox Centre and was earning

salary of Rs.1200/- per month. Both these witnesses were cross-

examined on behalf of respondent no.3. However, respondent no.3

did not led any oral or documentary evidence.

6] On appreciating evidence of these witnesses, it was to

held by the Tribunal that accident has occurred due to the rash and

negligent driving of the Bus driver, and hence the respondents are

liable to pay the compensation. However, as regards the quantum of

compensation, the learned Tribunal came to disbelieve the evidence

of witness no.2 that the deceased was working with him as Xerox

Operator, and therefore, the learned Tribunal held that there was no

evidence to show that the deceased was earning the income of

Rs.1200/- per month. The learned Tribunal further came to hold

that at the time of incident, the deceased was in the school and

considering his age and uncertainty of life, the learned Tribunal

awarded the compensation of Rs.80,000/- only, as being just and

reasonable, inclusive of the amount received by the appellant

towards No Fault Liability.

7]              While   challenging   the   judgment   of   the   learned



 0906 FA 137/2004                                5                          Judgment

Tribunal, submission of the learned counsel for the appellants is that

the learned Tribunal has not appreciated the evidence on record

properly nor applied the correct multiplier. Tribunal has also failed

to award the compensation towards the heads of loss of love and

affection, loss of dependency, loss of estate and the funeral

expenses. It is urged that as per the Post Mortem Report, the age of

the deceased was shown as 25 years, and in such situation, even if

the evidence of witness no.1 is disbelieved, in that case also,

considering the notional income of the deceased as Rs.3,000/- per

month, the Tribunal should have calculated the loss of dependency

and applied the correct multiplier of 16 having regard to the age of

appellant no.1, who is the mother and awarded the compensation

towards the additional heads of loss of love and affection, loss of

dependency, loss of estate and funeral expenses etc. It is urged that

the learned Tribunal has not considered all these aspects and

awarded meager sum of Rs.80,000/- only, as compensation. It is

totally a perverse finding and it needs to be quashed and set aside

and compensation amount be awarded by calculating all the heads,

as claimed by the appellants.

 0906 FA 137/2004                               6                          Judgment


8]              Though   the   learned   counsel   for   the   respondent   no.3

tried to support the impugned judgment and award of the learned

Tribunal, he could not succeed in doing so. Considering the legal

position as well as the factual position, this Court is constrained to

observe that the learned Tribunal has not at all properly appreciated

the evidence on record and also the legal aspects.

9] It may be true that as regards the aspect of negligence

and liability of the respondents to compensate the claimants. The

Tribunal has rightly held that in the absence of any evidence

produced on record by the respondents, even by non-examining the

Bus Driver of the Luxury Bus, it has to be held that the accident has

occurred due to the rash and negligent driving of the Luxury Bus.

This finding cannot be disturbed in view of the fact that it is based

on the evidence, especially the FIR (Exh.28) and also because the

respondents have not challenged the same by filing any cross-

objection to the appeal.

10] The only issue raised for consideration is pertaining to

the quantum of compensation and on this aspect, it has to be held

that the Tribunal has not calculated the compensation amount

0906 FA 137/2004 7 Judgment

correctly. Even accepting the finding given by the learned Tribunal

that no documentary evidence is produced on record by the witness

no.2 Deolal Ingole to prove that deceased was working with him as

Xerox Operator and earning salary of Rs.1200/- per month, the fact

remains that at the time of incident, the deceased was definitely of

the age of 18 years, as deposed by the appellant no.1. It can be seen

from the inquest panchnama and post mortem report, his age is

shown as 25 years. Hence, it has to be held that at the time of

accident, he was a major person. Merely because in the school

leaving certificate it is mentioned that he has left the school on

12/11/2001 i.e. date of accident, it cannot be accepted or presumed

that on the date of accident, he was a school going boy.

11] Once deceased was held to be a major person, then

compensation amount has to be calculated on the basis of the

notional income of Rs.1,500/- per month. As he was unmarried,

50% of the said income will have to be deducted towards his

personal expenses. Therefore, liability or dependency of the

appellants on his income comes to Rs.750/- per month x 12 which

comes to Rs.9,000/- per annum. The learned Tribunal has not at all

0906 FA 137/2004 8 Judgment

applied any multiplier but awarded compensation amount of

Rs.80,000/-, which was not at all a correct method to calculate the

amount of compensation.

12] In the instant case, for the purpose of deciding

multiplier, as the deceased was unmarried, the age of the appellant

no.1, who was mother, is required to be considered, it being on

higher side. Her age is stated in the petition to be 35 years. Hence,

appropriate multiplier would be 16. Accordingly, the total

dependency comes to Rs.9,000/- x 16 = Rs.1,44,000/-.

13] Then learned Tribunal has not awarded any sum

towards the funeral expenses, loss of love and affection and loss of

estate etc., and thereby committed an error, which needs to be

corrected in this appeal. As per the recent trend and the law laid

down by the Hon'ble Apex Court, the appellants will be entitled for

Rs.1,00,000/- towards loss of estate, Rs.25,000/- towards funeral

expenses and Rs.4,00,000/- towards loss of love and affection. Thus,

total amount of compensation to which the appellant is entitled,

comes to Rs.1,44,000/- towards loss of dependency, Rs.1,00,000/-

towards loss of estate, Rs.4,00,000/- towards loss of love and

0906 FA 137/2004 9 Judgment

affection of 4 appellants and Rs.25,000/- towards funeral expenses,

totally Rs.6,69,000/-. Out of that the learned Tribunal has already

granted the compensation of Rs.80,000/-. If that amount is

deducted, then the appellants become entitle to recover an amount

of Rs.5,89,000/- from the respondents with interest at the rate of

9% per annum.

14] At this stage, learned counsel for the appellant submits

that on this amount interest should be awarded at the rate of 9%

per annum from the date of filing of petition on 28/01/2002. In

support of his submission, he has also relied upon the decision of

the Hon'ble Apex Court in case of Neeta Kallappa Kadolkar and

others -Vs- Divisional Manager, Maharashtra State Road

Transport Corporation, Kolhapur, 2015(3) SCC 590, wherein

interest was awarded at the rate of 9% per annum from the date of

filing of the application till the date of payment. As against it,

learned counsel for the respondent no.3 submitted that amount of

compensation is enhanced today by this court and in such situation,

awarding rate of interest at the rate of 9% per annum from the date

of filing of petition will not be proper. It would be penalizing the

0906 FA 137/2004 10 Judgment

respondent no.3. It is submitted that if the Tribunal has awarded

this amount, the respondent no.3 would have paid or already

deposited the same and was not required to pay interest on this

amount from the date of petition.

15] Having considered the submissions advanced by the

learned counsel of both the parties and considering the period for

which this appeal remained pending and once it was also dismissed

in default, in my opinion, interest at the rate of 7.5% per annum

would be just and reasonable.

16] Accordingly, the respondents are directed to pay the

additional amount of compensation of Rs.5,89,000/- with interest at

the rate of 7.5% per annum from the date of filing of petition i.e.

28/01/2002 till deposit/payment of the entire amount, subject to

payment of deficit court fee stamp, if any.

17] The respondents are further directed to deposit the

entire amount of compensation in this court within a period of 3

months.

 0906 FA 137/2004                               11                        Judgment


18]             On   deposit   of   such   amount   of   compensation   by   the

respondents, the appellants are entitled to withdraw the same, as

per apportionment made by the Tribunal.

19] The appeal is thus allowed and disposed of in above

terms.

JUDGE Yenurkar