Bombay High Court
Smt.Subhadrabai Wd/O Uttamrao ... vs State Of Maharashtra & 3 Others on 22 June, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL No.73 OF 2008
IN
FIRST APPEAL No.280 OF 1985
1. Smt. Subhadrabai wd/o. Uttamrao Sardar,
Aged about 75 years,
Occupation : Household,
R/o. Khamgaon, Distt. Buldhana.
2. Avinash s/o. Madhukar Sardar,
Aged about 26 years, Occu. :
R/o. Khamgaon, Distt. Buldhana. : APPELLANTS
...VERSUS...
1. State of Maharashtra,
Through the Collector, Yavatmal.
2. Zilla Parishad, Yavatmal,
Through its Executive Officer, Yavatmal.
3. Smt. Vatsalabai wd/o. Madhukar Sardar,
about 45 years, Occ.: Household,
R/o. Icchapur, Tq. Shegaon,
Distt. Buldhana.
Matter is dismissed 4. Hemlata Madhukar Sardar,
against respondent about 22 years,
No.4 as per Registrar R/o. Khamgaon, Distt. Buldhana. : RESPONDENTS
(J) order dt.5.2.2013.
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Shri R.L. Khapre, Advocate for the Appellants.
Smt. Ritu Kalia, Asstt. Government Pleader for Respondent No.1.
Shri N.I. Moharir, Advocate for the Respondent No.2.
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CORAM : B.P. DHARMADHIKARI AND
ROHIT B. DEO, JJ.
nd JUNE, 2017.
DATE : 22
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ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)
1. By this appeal filed in June, 2001 the judgment and order
passed on 26.4.2001 by learned Single Judge of this Court in First Appeal
No.280/1985 has been questioned by mother and son of victim of
accident, namely, deceased Madhukar.
2. It appears that as there was delay of 2 days in preferring
Letters Patent Appeal, Civil Application No.4941/2001 was filed and the
delay was condoned on 28.2.2008. Therefore, Letters Patent Appeal has
been registered in the year 2008. These details are required to be
mentioned only to bring on record the fact that amendment to Section
100-A C.P.C. will not have any application here.
3. The accident occurred on 23.9.1980 and claim petition was
filed by widow Smt. Vatsalabai minor son Avinash, minor daughter
Hemlata and mother Subhadrabai vide Motor Accident Claim Petition
No. 1/1981 under Section 110-D of the Motor Vehicles Act, 1939.
Vehicle belongs to Zilla Parishad and, therefore, covered with Directorate
of Insurance under State Government. As such State of Maharashtra,
Zilla Parishad and the driver of the said vehicle (Jeep) were joined as
respondents.
4. The Motor Accident Claims Tribunal, Yavatmal delivered
judgment on 28th March, 1984 and claim petition was dismissed. This
dismissal was questioned in First Appeal No.280/1985 before this Court
and the learned Single Judge by impugned judgment dated 26 th April,
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2001 awarded total compensation of Rs.1,02,000/- to the appellants
with interest at 9% p.a. Said appeal was filed by the widow, son-Avinash
and daughter-Hemlata. Children were minors even at that stage.
Mother-Smt. Vatsalabai was joined as party respondent No.4 in that
appeal.
5. Present Letters Patent Appeal is filed by mother and
son-Avinash. The widow of deceased and daughter of deceased are
joined as respondent Nos.3 and 4 in the present matter.
6. It appears that the appeal against daughter as respondent
No.4 has been dismissed as per order dated 8.2.2013.
7. It is in this background, we are heard respective counsel.
8. Advocate R.L. Khapre, submits that in view of later
judgments of the Hon'ble Apex Court in the case of Sarla Verma and
others vs. Delhi Transport Corporation and another, reported at
2009(5) Mh.L.J. 775 and in the case of Sandhya Rani Debbarma and
others vs. National Insurance Company Limited and another,
reported at 2016(16) SCC 206, in present matter it is not necessary to
delve into evidence. The deceased was about 35 years of his age and his
monthly income has been accepted at Rs.900/- per month. As number of
dependents upon him was four, deduction of ¼th amount from his wages
for personal expenditure was/is necessary. Similarly, for loss of future
potential/prospects 50% of the wage amount needs to be added and
thereafter actual dependency can be worked out. He has accordingly
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prepared a chart and as per that chart annual dependency worked out to
Rs.12,150/-. He submits that considering the age of the deceased
appropriate multiplier i.e. 16 needs to be used and, therefore, total
compensation payable on account of this date to family members works
out to Rs.1,94,400/- In addition, he submits that the Hon'ble Apex Court
has now pointed out the heads under which damages are awardable as
also quantum thereof. He, therefore, claims funeral expenses of
Rs.25,000/-, loss of consortium at Rs.1,00,000/-, loss of guidance to
minor children at Rs.1,00,000/-, loss of love and affection to aged
parents at Rs.1,00,000/-, loss of estate at Rs.1,00,000/- and litigation
costs of Rs.25,000/-. He accordingly claims amount of Rs.4,50,000/-
over and above the damages computed supra with interest as awarded by
learned Single Judge.
9. Learned A.G.P. is strongly opposing the appeal. She submits
that the damages under various heads claimed are more than 200% than
the compensation worked out by applying multiplier. She further points
out that the appeal is being prosecuted only by two claimants i.e. mother
and son and others have not approached this Court. She points out that
respondent No.3 widow though served has chosen not to appear in this
Letters Patent Appeal and hence damages under various heads as
claimed cannot be awarded in present matter.
10. In view of rival contentions, following points arise for our
determination :
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i) To what amount the appellants are entitled
as compensation on account of death of
Madhukar on 23.9.1980 ?
ii) Whether the legal heirs impleaded as
respondents can also get benefit of
enhancement ?
iii) Whether the appellants are entitled to
enhance compensation/compensation
under all six heads pointed out by the
Hon'ble Apex Court in 2016(16) SCC 206 ?
11. We find that discussion on all these points can be undertaken
conveniently together. The State Government or Zilla Parishad have
accepted adjudication in First Appeal No.280/1985 by learned Single
Judge. Therefore, their liability to pay compensation is admitted.
12. The Judgment of the Hon'ble Apex Court in case of Sarla
Verma and others vs. Delhi Transport Corporation and another (supra)
shows how concept of compensation needs to be understood as just
compensation. There deceased Rajinder had expired in an accident on
18.4.1988. We need not dwell more on this judgment because in later
judgment i.e. Sandhya Rani Debbarma and others vs. National Insurance
Company Limited and another, the Hon'ble Apex Court has again relied
upon it. In this later judgment the accident had taken place on
14.11.2003. In present matter as already noted supra accident has taken
place on 23.9.1980.
13. However, even now the formula used for determination of
compensation in such cases after arriving at annual dependency as
evolved in case of Sarla Verma (supra) can be conveniently resorted to.
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The monthly undisputed salary of deceased Madhukar was Rs.900/- per
month. Therefore, his annual salary works out to Rs.10,800/-. As
observed by Hon'ble Apex court in case of Santoshidevi vs. National
Insurance Company Limited, reported at 2012(6) SCC 421,
considering his age, his income needs to be hiked by 50% in lieu of loss
of future prospects/potential. Accordingly, total annual wage works out
to Rs.16,200/-. Considering number of dependents to be four, when ¼th
amount from his annual wage is subtracted, dependency of family works
out to Rs.12,150/-. When this figure is multiplied by multiplier of 16,
the amount of compensation works out to Rs.1,94,400/-. Thus, legal
heirs could have claimed and should have been awarded amount of
Rs.1,94,400/- by this Court.
14. Heads of damages are specified by Hon'ble Apex Court in
paragraph 17 of its judgment in case of Sandhya Rani Debbarma and
others (supra). Loss of consortium can be claimed by widow of
Madhukar, but then she has chosen not to appeal against the adverse
judgment of Claims Tribunal. Widow was respondent No.4 in the first
appeal. After First Appellate Court granted some relief, again in letters
patent appeal she was required to be impleaded as respondent No.3.
Though served, she has chosen not to appear. Circumstances in which
she did not challenge the decision of claim petition by Claims Tribunal or
then did not seek further enhancement, are not on record. Even
daughter-Hemlata who was appellant in first appeal, has not filed Letters
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Patent Appeal. She has been impleaded as respondent No.4 and as
service could not be effected on her, appeal has been dismissed against
her on 8.2.2013, with the result she is, as of now, not a party to this
proceeding at all.
15. In this situation, we find that benefit of enhancement can be
awarded to the present appellant only proportionately.
16. The other head under which Hon'ble Apex Court has
awarded compensation is loss of estate. Facts necessary to enable
appellant to claim damages under this head are not on record. Hence,
no compensation can be awarded under said head. With the result, the
present appellants can claim damages under heads like funeral expenses,
loss of guidance to minor children, loss of love and affection to aged
parents and litigation costs. The quantum of compensation awarded
under these heads by Hon'ble Apex Court is in the year 2016 and in
relation to accident which has taken place in year 2003. Here the
accident has taken place in the year 1980. Thus amount mentioned by
the Hon'ble Apex Court cannot ipso facto apply in present facts. We,
therefore, find that in this situation, the appellants can be awarded
amount of Rs.5,000/- towards funeral expenses, amount of Rs.25,000/-
towards loss of guidance to minor child Avinash, amount of Rs.50,000/-
towards loss of love and affection to mother Subhadrabai and amount of
Rs.12,000/- towards litigation costs.
17. The amount of compensation arrived at supra on account of
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death of Madhukar i.e. Rs.1,94,400/- needs to be increased by loss of
love and affection to aged parents Rs.50,000/-, loss of guidance to minor
son Rs.25,000/- and funeral expenses Rs.5,000/-, litigation costs
Rs.12,000/-. Total amount thereafter works out to Rs.2,86,400/-.
18. Thus, we find that the appellants are entitled to total amount
of Rs.2,86,400/- from respondent as compensation due to accidental
death of Madhukar. The amount already received by them (if any) shall
be subtracted from this amount and balance amount shall be paid to
them with 9% interest on it as awarded by learned Single Judge.
19. The appellants have paid Court fee only on claim of
Rs.1,00,000/- while preferring this Letters Patent Appeal. On amount
awarded in excess of Rs.1,00,000/-, deficit Court fee shall be paid by
them within four weeks. After deficit Court fee is received, they shall be
free to execute the present judgment.
20. Respondents shall after receipt of certified copy of judgment
with certificate that deficit Court fee has been paid, arrange to pay
balance amount to appellants within next two months. If it is not so
paid, it shall be open to appellants to execute the same as per law.
21. Letters Patent Appeal is thus allowed and disposed of.
JUDGE
okMksns
