Bombay High Court
Sandhya Yashwant Masane & Others vs Rajkumar Bainath Pal on 12 June, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 265 of 2005
Appellants : 1) Sandhya Yashwant Masane, aged about
30 years
2) Sau Puja Sachin Dhanorkar, aged 23 years
3) Ku Neha Yashwant Masane, aged about
10 years
4) Akshay Yashwant Masane, aged about 7 yrs
5) Ramrao Avdhutrao Masane, aged 64 years
6) Vatsalabai Ramrao Masane, aged 59 years
Nos. 2 to 4 minors, by guardian-mother
Sandhya Yashwant Masane
All residents of Umari umarkhed, Akola
versus
Respondents : 1) Rajkumar Bainath Pal, aged about 30
years, Occ: Driver, resident of Baria Howrah
2) Ravindra Nath Dey, Adult, Truck Owner,
resident of Near Burma Sheel Petrol Pump,
PO Bashirhat, 24, Paragana (N), District
24 Paragana (WB)
::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:56:05 :::
2
3) Divisional Manager, Oriental Insurance
Company Limited, Akola
----------
Shri C. A. Joshi, Advocate for appellants
None appears for respondents no. 1 and 2
Shri A. R. Godbole, Advocate for respondent no. 3
Coram : S. B. Shukre, J
Dated : 12th June 2017
Oral Judgment
1. The claimants have preferred this appeal being not satisfied with
the quantum of compensation determined by the Motor Accident Claims
Tribunal, Akola in its judgment and order dated 15.12.2004 rendered in MACP
No. 323 of 2000. The claimants who have preferred this appeal, are the
widow, children and parents of the deceased Yashwant Masane.
2. Yashwant Masane was serving as Driver with the Maharashtra
State Road Transport Corporation. He was driving ST Bus belonging to the
Corporation in the morning of 27.7.1999. The bus was proceeding from
Khamgaon ST Stand to Akola. On National Highway No. VI when the ST Bus
reached near village Tembhurna at about 05.00 am, one Truck bearing
registration No. WB-25-1988 collided head-on with the ST Bus. The deceased
sustained serious injuries and on being brought to the hospital, he succumbed to
those injuries. His monthly salary was Rs. 4100/- and the appellants were
dependents on him. Claim petition filed by the appellants under Section 166 of
the Motor Vehicles Act, 1988 was partly allowed and compensation of Rs.
5,13,500/- was granted to them. It was directed to be paid jointly and severally
by respondents no. 1 to 3. Not being satisfied with the quantum of
compensation, the appellants are before this Court in this appeal.
3. I have heard Shri C. A. Joshi, learned counsel for the appellants
and Shri A. R. Godbole, learned counsel for respondent no. 3. None appears for
respondents no. 1 and 2 though they are duly served. I have gone through the
Record & Proceedings.
4. According to learned counsel for the appellants, the quamtum of
compensation is inadequate and is not in consonance with the settled law. He
relied upon Vimal Kanwar & ors v. Kishore Dan & ors reported in (2013) 7
SCC 476. According to learned counsel for respondent no. 3, there is no need
to interfere with the impugned and order as the compensation awarded to the
appellants is just and proper.
5. It is seen from the evidence available on record that the Tribunal
has wrongly determined the monthly income of the deceased when his salary
slip (exhibit 39) duly proved in evidence, clearly showed that his monthly
income was Rs. 4100/- approximately. This salary slip also shows that what
was to be deducted therefrom was only Rs. 90/- on account of professional tax.
The actual monthly salary of the deceased was Rs. 4089/- which was rounded
off to Rs. 4100/-. On deducting Rs. 90/- on account of professional tax, his
salary woulc have come to Rs. 4000/- approximately. Since this amount is
clearly borne out from record of the case, I find that determination made by the
Tribunal in this regard is completely erroneous and needs to be substituted by
recording a finding that the monthly income of the deceased was Rs. 4000/-.
6. In the case of Vimal Kawar & ors (supra) relied upon by learned
counsel for the appellants, it is held that when the deceased was below 30 years
of age and having a permanent job, it was reasonable to predict that during the
remainder of his service, which could have been approximately of about 28
years, the salary of the deceased would have doubled and, therefore, hundred
percent amount on account of future prospects was required to be added to the
monthly income of the deceased. Same being the established fact of the instant
case, I am of the view that in the monthly income of Rs. 4000/- of the deceased,
another amount of Rs. 4000/- is required to be added and it is taken into
consideration accordingly.
7. In New India Assurance Company Limited v. Gopali & ors
reported in (2012) 12 SCC 198, the Hon'ble Apex Court has held that in a case
where there are five or more family members, the deceased, being the bread-
earner for the family, would hardly be left with 10% of his income for his
personal expenses and, therefore, in such a case, what was required to be
considered for making deduction from the monthly income, was the amount
which was equivalent to 1/10th of the deceased's income. In the instant case,
the family of the deceased comprised six members apart from the deceased
himself. Therefore, the ratio of the case of New India Assurance Company Ltd. v.
Gopali & ors (supra) is applicable to the facts of the present case. Accordingly,
1/10th of monthly income of Rs. 8000/- would have to be deducted and by
making such deduction, the monthly income would come to Rs. 7200/-. Thus,
annual income of the deceased would come to Rs. 86,400/-. Since the
multiplier "17" was applied in the case in Gopali & ors (supra) where the
deceased was about 24 years old, the same multiplier would have to be applied
in the instant case also and by doing so, the total loss of dependency would
come to Rs. 14,68,800/-.
8. In addition to above referred amount as compensation, more
amount under "non-pecuniary" heads would have to be added. By relying upon
the cases of Vimal Kanwar & ors (supra), Gopali & ors (supra) and Neeta w/o
Kallappa Kadolkar & ors v. Divisional Manager, Maharashtra State Road
Transport Corporation, Kilhapur reported in (2015) 3 SCC 590, the following
amounts of compensation would have to be added :
(a) Loss of consortium and estate
to widow .. Rs. 1,00,000/-
(b) Loss of love and affection to widow
.. Rs. 1,00,000/-
(c) Loss of love and affection to mother .. Rs. 2,00,000/-
and father (i.e. Rs. 1,00,000/- each)
(d) Loss of lolve and affection to three .. Rs. 3,00,000/-
children (i.e. Rs. 1,00,000/- to each)
(e) Funeral expenses .. Rs. 25,000/-
Less
Compensation awarded by the Tribunal .. Rs. 5,13,500/-
Amount payable to the appellants .. Rs. 16,.80,300/-
9. I must say, on the additional compensation so determined by this
Court as payable to the appellant, interest would have to be given and
reasonable rate of interest would be 7% per annum from the date of application
till the date of actual payment. All these amounts would have to be paid jointly
and severally by the respondents no. 1 to 3.
10. Appeal is partly allowed with proportionate costs. Respondents
no. 1 to 3 are directed to pay the additional amount of Rs. 16,80,300/- jointly
and severally to the appellants, as directed above together with interest @ 7%
per annum from the date of application i.e. 5.10.2000 till realization.
Respondents shall deposit the amount in the Tribunal within three months from
the date of this order.
S. B. SHUKRE, J
joshi
