Pushpa Wd/O Sheshrao Datar & Anor vs M/S. Prashand Construction Co. & 2 ...
2017 Latest Caselaw 3157 Bom

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                                                             1


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                                FIRST APPEAL NO.634 OF 2008

 1]          Pushpa wd/o Sheshrao Datar
             Aged about 48 years, Occ.: Household

 2]          Asha d/o Sheshrao Datar
             Aged about 24 years, Occ.: Nil
 [




             Both residents of Indira Nagar, 
             Ward No.7, Gadchiroli.                                              ....... APPELLANTS

                        ...V E R S U S...

 1]          M/s Prashant Construction Co.
             Subhedar Lane, Gadikhana
             Mahal, Nagpur (Owner of Truck).

 2]       Divisional Manager,
          National Insurance Company, 
          Chandrapur (Insurer of Truck).
           
 3]  Divisional Manager,
          Oriental Insurance Company,
          Mahatma Gandhi Road, 
          Chandrapur 
          (Insurer of Motor Cycle).                          ....... RESPONDENTS
 -------------------------------------------------------------------------------------------
          Shri. P. P. Pendke, Advocate for Appellants.
          Shri C. A. Anthony, Advocate for Respondent No. 2. 
          None appeared for Respondent No. 1 & 3.
 -------------------------------------------------------------------------------------------

             CORAM :  SMT. DR. SHALINI PHANSALKAR-JOSHI, J. 

             DATE    :  14 th
                              JUNE, 2017.

 ORAL JUDGMENT

This appeal is preferred by the original claimants

against the judgment and award dated 15.7.2007 passed by the

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Member, Motor Accident Claims Tribunal, Gadchiroli in Motor

Accident Claims Petition No. 32/2004.

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

Appellant No.1 is the wife and appellant no.2 is the

daughter of deceased Sheshrao, who met with an accident while

driving the motorcycle, bearing No. MH-33/D-4015, which was

insured with respondent No.3. The truck bearing No. MWH-5639

owned by respondent no.1 and insured with respondent No. 2 had

given dash to his motorcycle, which resulted into his fatal injuries.

After carrying out necessary inquiry, police had registered Crime

No. 157/2004 against the driver of the offending truck for the

offences punishable under Sections 279, 304-A of the Indian Penal

Code. The appellants being dependents of the deceased Sheshrao,

filed the petition for compensation of Rs.5,00,000/- from the

respondents.

3] The respondents resisted the said claim petition.

However, on appreciation of evidence on record, the learned trial

Court was pleased to allow the said petition directing respondent

Nos. 1 and 2 i.e. the owner and insurer of the offending truck to

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pay jointly and severally the compensation of Rs.5,00,000/-

inclusive N.F.L. of Rs.50,000/- to the appellants.

4] Being not satisfied with the amount of compensation

as awarded by the Tribunal, this appeal is preferred by original

claimants.

5] I have heard learned Advocate for the appellant and

also perused the record of the case. The only question for my

determination is whether the Tribunal has awarded just and

correct amount of compensation.

6] As per admitted facts of the case, the Tribunal has

held that the cause of accident was rash and negligent driving of

the truck driver and the owner of the truck i.e. respondent No.1

and insurer are held liable to compensate the appellants.

Respondent Nos. 1 and 2 have not preferred any appeal

challenging the order passed by the Tribunal. Hence, so far as

legal liability of respondent Nos. 1 and 2 to compensate the

appellants is concerned, it already stands proved on record.

  





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 7]                   The   only   dispute   is   about   the   quantum   of

compensation. It is brought on record and proved through the

evidence of the appellants and the salary certificate (Exh.49) that

the deceased was drawing salary of Rs.8,974/- per month. It is

also brought through the evidence of service book (Exh.50) that

he was born on 7.5.1950 and he died in the accident on 5.1.2004.

Therefore, at the time of accident, he was of 54 years of age.

Hence, as per Second Schedule of Section 163-A of the Motor

Vehicles Act, multiplier of 11 needs to be applied.

8] Now, in view of settled position of law as laid down

by Hon'ble Apex Court in the case of "Sarla Verma Vs. DTC,

(2009) 6 SCC 121" and further confirmed in the case of "Rajesh

and others Vs. Rajbir Singh and others, (2013) 9 Supreme

Court Cases 54", as the deceased was in the age group of 50 to

60 years, he was entitled to 15% of his income towards the future

prospects. Thus, having regard to his income from salary of

Rs.8,974/- per month multiplied by 12 comes to Rs. 1,07,688/-

plus 15% towards future prospects Rs. 16,154/- it comes to

Rs.1,23,842/-. If 1/3rd of the said amount which comes to

Rs.41,280/- is deducted towards his personal expenses, then

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dependency of the appellants comes to Rs.82,562/-. If the said

amount is multiplied by 11, then it comes to Rs.9,08,182/-.

9] Learned Tribunal has held that the appellants are

entitled to the amount of Rs.7,89,712/- towards the loss of

dependency applying the multiplier of 11 and holding his income

from salary of Rs.8,974/- per month. However, as learned

Tribunal has not awarded him 15% of the income towards future

prospects, that amount is now required to be added as stated

above.

10] Moreover, learned Tribunal has deducted 20%

amount of compensation on the count that appellants were

getting the said amount at once in lump-sum. Thus, the Tribunal

has deducted the amount of Rs.1,57,942/- from the amount of

Rs.7,89,712/- and held the appellants entitled to get

Rs.6,71,770/- only. However, on which basis the learned Tribunal

has deducted the amount of 20% amount of compensation is not

explained. It has no basis in law. Hence, such deduction is

required to be set aside. Moreover, the Tribunal has awarded

amount of Rs.2,000/- only towards funeral expenses and

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Rs.5,000/- only towards loss and consortium, love and affection.

However, considering the trend of the recent decisions of the

Apex Court, the said amount needs to be enhanced to Rs.25,000/-

towards funeral expenses and Rs.1,00,000/- towards loss of

consortium love and affection. Thus, the appellants become

entitled to get the total amount of Rs.10,33,182/-.

11] It is also surprising to note that learned Tribunal has

though arrived at a conclusion that appellants are entitled to get

total amount of Rs. 6,78,770/-, as the appellants had restricted

the claim to the extent of Rs.5,00,000/- in the petition, being

unable to pay court fee stamp, the Tribunal has awarded the

compensation of Rs.5,00,000/- only. Needless to state that this

part of the order of the learned Tribunal holding the appellants

entitled to get total amount of Rs. 6,78,770/- but awarding only

Rs.5,00,000/- also needs to be modified as the Tribunal could

have awarded the said amount subject to appellants depositing

court fee.

12] The net result is that this appeal is allowed.

Appellants are held entitled to get total compensation amount of

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Rs.10,33,182/-. Out of the said amount, appellants have already

received the amount of Rs.5,00,000/- as awarded by the Tribunal.

Hence, now and respondent Nos. 1 and 2 are jointly and severally

liable to pay the remaining amount of Rs.5,33,182/- to the

appellants with interest thereon at the rate of 7.5% per annum

from the date of petition till realization of the entire amount.

13] Subject to appellants paying deficient court fee stamp,

out of the remaining amount of compensation of Rs.5,00,000/-,

75% amount with interest accrued thereon be paid to appellant

No.1 Pushpa, the widow of Sheshrao Datar and remaining 25%

amount with interest accrued thereon be paid to appellant No.2

Asha, the daughter of the deceased Sheshrao.

JUDGE

RGIngole