Bombay High Court
United India Insurance Co.Ltd vs Radhabai Bhagwan Tarkase And Ors on 13 June, 2017
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 828 OF 2009
United India Insurance Co. Ltd.
Tilak Nagar,main Road, Latur
Through its Divisional Manager
Aurangabad Divisional Office ...Appellant
Aurangabad (Ori. Opp. No.3)
versus
1. Radhabai w/o Bhagwan Tarkase,
Age 31 years, Occ. Household
2. Ashish s/o Bhagwan Tarkase
Age 9 years,
3. Rupali d/o Bhagwan Tarkase
Age 7 years, Occ. Education,
4. Dipali d/o Bhagwan Tarkase
Age 5 years, Occ. Education,
(Claimant Nos. 2 to 4 are minors
u/g their natural mother i.e. claimant No.1)
5. Sow. Revatibai w/o Sukhdeo Tarkase
Age 58 years, Occ. Nil
6. Sukhdeo s/o Changdeo Tarkase
Age 61 years, Occ. Nil,
All R/o. Moti Nagar, Latur (Ori. Claimants)
7. Dada s/o Pitambar Patil,
Age 38 years, Occ. Driver
R/o. Khurde-Khurde
Tq. and District Nandurbar
8. Ashokbhai s/o Chamaplal Dave
Age major, Occ. Business,
Tq. Mizar, District Surat (Gujarat),
Now R/o. Raghuwanshi Transport
Nandurbar, Dist. Nandurbar ...Respondents
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...
Advocate for Appellant : Mr. A B Gatne
Advocate for Respondents 1 to 6: Mr. V.D. Godbharle
Advocate for Respondents 7 and 8: Mr. Y.B. Bolkar h/f Mr. A.B. Girase
.....
CORAM : V. K. JADHAV, J.
DATED : 13th JUNE, 2017
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award passed by the
Member, Motor Accident Claims Tribunal, Latur dated 15.11.2007, in
M.A.C.P. No. 193 of 2005, the original respondent No.3-insurer has
preferred this appeal to the extent of quantum.
2. Learned counsel for the appellant-insurer submits that deceased
Bhagwan was doing his business of selling of food articles on handcart.
In absence of any satisfactory evidence about his income from the said
source, the Tribunal has erroneously considered the income of
deceased Bhagwan from the said business at Rs.6000/- p.m. Even
though the diary books at Exh.32 to 35 are produced on record, the
same hardly reflect any entry about the income earned by deceased
Bhagwan from the said business. The entries in the said documents do
not disclose the clear and exact income and expenses of deceased
Bhagwan from the said business.
3. Learned counsel for the respondents claimants submits that
deceased Bhagwan was doing the business by parking his handcart
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near Shivneri Gate at Latur. He was selling the vegetables in the
market in the morning and in the evening he was selling food articles
prepared from eggs. Deceased Bhagwan used to maintain the diary of
the accounts and claimants have produced on record the said diaries at
Exh. 32 to 35, respectively. It appears from the entires taken in the said
diary that deceased Bhagwan used to purchase the grocery articles
required for his business on daily basis. The claimants have also
examined P.W.2 Rajesh, a person employed as waiter by deceased
Bhagwan. Deceased Bhagwan was paying P.W.2 an amount of
Rs.800/- per month. According to this witness, income of deceased
Bhagwan was about Rs.1200/- to 1500/- per day from the said
business.
4. Learned counsel for the respondents-claimants submits that
deceased Bhagwan obtained electricity meter from his own income in
his house. He had purchased one plot at Latur. He was having gas
connection and installed a telephone. Deceased Bhagwan was having
good income from his business and as such, he could purchase a plot
and installed the said facilities in his residential house. Learned counsel
submits that considering the same, the Tribunal has considered the
income of deceased Bhagwan at Rs.6000/- per month however, the
Tribunal has not made any addition in the income of deceased
Bhagwan towards his future prospectus though deceased Bhagwan met
with an accidental death at the age of 33 years. Learned counsel
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submits that the Tribunal has also erroneously applied the multiplier 15
instead of 16. The school living certificate of deceased Bhagwan was
placed on record and as per the date of birth, mentioned in the said
school living certificate, deceased Bhagwan was 33 years of age at the
time of his accidental death. Further, even though there are 6
dependents-claimants, the Tribunal has erroneously deducted 1/3 rd of
the amount towards personal and living expenses of deceased
Bhagwan instead of 1/5th. Learned counsel submits that the Tribunal
has awarded very meager amount under non pecuniary heads.
Learned counsel submits that though the claimants have not preferred
any appeal or cross objection, they are entitled for just and reasonable
compensation in accordance with law.
5. Learned counsel for the respondents-claimants in order to
substantiate his submission, placed reliance on the judgment of
Supreme Court in the case of Sanobanu Nazirabhai Mirza and Ors.
vs. Ahmedabad Municipal Transport Service, reported in 2013(6)
ALL MR 981 (S.C.) wherein the Supreme Court has relied upon the
decision of the Larger Bench rendered in the case of Nagappa vs.
Gurudayal Singh and others reported in (2003) 2 SCC 274, held that
it is the duty of the Tribunal and the appellate court to award just and
reasonable compensation to the claimants to meet their hardships and
agony.
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6. I have also heard learned counsel for the respondent Nos. 7 and
8.
7. On careful perusal of the pleadings, evidence and the impugned
judgment and award passed by the Tribunal, it appears that though the
claimants have claimed income of deceased Bhagwan from the
business of selling food articles on handcart at Rs.15,000/- p.m. the
Tribunal in absence of satisfactory evidence has considered the income
of deceased Bhagwan at Rs.6000/- p.m. On careful perusal of the
diaries Exh.32 to 35, there are some entries about purchase of grocery
articles and on the basis of the same, nothing can be inferred about the
income of deceased Bhagwan. However, it is a matter of record that
deceased Bhagwan had appointed P.W.2 Rajesh as a waiter on his
handcart for serving the customers on monthly salary of Rs.800/-. It is
also a matter of record that deceased Bhagwan had obtained electricity
meter in his house from the said income and also installed a telephone.
He was having gas connection. He had also purchased one plot at
Latur. Even if the notional income of deceased Bhagwan is considered
at Rs.3000/- p.m. after addition in his income towards future prospectus,
his income comes to Rs.6000/- per month. The Tribunal has not made
any addition towards future prospectus.
8. Learned counsel of the respondents claimants has rightly pointed
out that the Tribunal has erroneously applied the multiplier 15 instead of
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16 and also erroneously deducted 1/3 rd amount towards personal and
living expenses of deceased Bhagwan instead of 1/5 th. Learned Member
of the Tribunal has not considered the age of deceased at the time of
his accidental death for applying the relevant multiplier and also not
considered the number of dependents-claimants. Though the claimants
have not filed any appeal or cross objection, however, in view of the
observations made by the Supreme Court in the case of Sanobanu
Nazirabhai Mirza and Ors. vs. Ahmedabad Municipal Transport
Service, (supra), relied upon by learned counsel for the respondents-
claimants, this court can consider just and reasonable compensation to
be awarded to the legal representatives of deceased Bhagwan. There is
apparent error in applying the multiplier and deduction towards personal
and living expenses of deceased. It also appears that the Tribunal has
awarded very meager amount under non pecuniary heads. Though the
Tribunal has rightly awarded Rs.10,000/- each to the claimant Nos. 2 to
6 towards love and affection, the Tribunal has awarded Rs.10,000/- only
for loss of consortium to claimant No.1 however, considering the year
of accident, the claimants are entitled for amount of Rs.50,000/- towards
loss of consortium. The claimants are also entitled for amount of
Rs.10,000/- towards loss of estate and Rs.15,000/- forwards funeral
expenses. The Tribunal has awarded Rs.10,000/- towards misc.
expenses.
9. In view of above, the break up of compensation under various
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heads which can be broadly categorized is as under under:-
i) Loss of future income Rs. 9,21,600.00
(Rs. 6000/- p.m. after deduction
1/5th of the amount Rs.488x12x16)
Against Rs.7,20,000/- as awarded by
the Tribunal)
ii) Loss of consortium to claimant No.1 Rs. 50,000.00
(against Rs.10,000/-
as awarded by the Tribunal)
iii) Loss of love and affection Rs. 50,000.00
Rs. 10,000/- each
(as awarded by the Tribunal)
iv) Loss of estate Rs. 10,000.00
v) Towards funeral expenses Rs. 15,000.00
vi) Medical expenses Rs.1,48,114.00
(as awarded by the Tribunal)
vii) Misc. expenses Rs. 10,000.00
(as awarded by the Tribunal)
----------------------
Total Rs. 12,04,714.00
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10. Thus, the claimants are entitled for amount of Rs.12,04,714.00.
The impugned judgment and award therefore, requires modification.
Hence, I proceed to pass the following order:-
ORDER
I. The judgment and award dated 15.11.2007 passed by the
learned Member, M.A.C.T. Latur in M.A.C.P. No. 193 of 2005 is
modified in the following manner:-
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"The claimants are entitled for compensation of Rs.12,04,714.00
(Rupees Twelve lacs four thousand seven hundred fourteen only)
(inclusive of 'no fault liability') together with future interest at the
rate of Rs.7.5% p.a. from the date of petition till realization of the
amount and the original respondent Nos. 1 to 3 are jointly and
severally liable to pay the compensation together with future
interest, as above, to the claimants"
II. Rest of the judgment and award stands confirmed.
III. Award be drawn up as per above modification.
IV. Deficit court fees, if any, be paid within a period of four weeks.
V. The claimants are permitted to withdraw the amount, if deposited
before this court by the appellant-insurer.
VI. Appeal is accordingly disposed of.
( V. K. JADHAV, J.)
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