Raghunath Kisanrao Dhole & 4 ... vs Bhanwarlal Trilokchand Jain & ...
2017 Latest Caselaw 3533 Bom

2206 FA  418/2008                             1                        Judgment


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


                        FIRST APPEAL NO. 418/2008 


1]     Raghunath s/o Kisanrao Dhole,
       Aged 50 years, Occu: service,

2]     Smt. Geetabai w/o Raghunath Dhole,
       Aged 45 years, Occu: Household,

3]     Waman s/o Kisanrao Dhole (Handicap)
       Aged 35 years, Occu: Nil,

4]     Madhuri d/o Raghunath Dhole,
       Aged 20 years, Occu: Student,

5]     Pradeep s/o Raghunath Dhole,
       Aged 18 years, Occu: Student,

       All R/o. Amarjyoti Nagar, 
       Bhim Chowk, Nagpur.                              APPELLANTS

                                .....VERSUS.....


1]     Bhawarlal s/o Trilokchand Jain,
       R/o. Digambar Coop. Housing Society,
       Azamshah Layout, Nagpur.

2]     The Divisional Manager,
       National Insurance Co. Ltd.,
       Mount Road, Sadar, Nagpur.                        RESPONDE NTS
                                                                     


       Shri Asghar Hussain, counsel for appellants.
       Mrs. Smita P. Deshpande, counsel for respondents.




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 2206 FA  418/2008                               2                          Judgment


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

                DATE     : JUNE 22, 2017.


ORAL JUDGMENT :  

This appeal is preferred by the original claimants, being

aggrieved by the meager amount of compensation awarded by the

Motor Accident Claims Tribunal, Nagpur, vide its judgment and

order dated 02/05/2003 in Claim Petition No. 503/1999.

2] Brief facts of the appeal are as follows ;-

Appellant nos.1 and 2 are the parents, appellant no.3 is

the uncle, appellant no.4 is the married sister and appellant no.5 is

the major brother of the deceased Satish, who has died in the

vehicular accident, that took place on 22/02/1999. It is case of the

appellants that deceased was doing the business of Cushion making

and repairs under the name and style as "S.R. Cushion Works" at

Nagpur. From the said business, he was earning the income of

Rs.4,000/- per month and maintaining his parents, uncle, brother

and sister. On account of untimely death of the deceased, they have

lost their only source of income, and hence, considering his future

prospects and the financial loss which they have suffered due to his

2206 FA 418/2008 3 Judgment

death, they claimed the compensation of Rs.5,00,000/- from the

respondent no.2, the insurance company and respondent nos.1, the

owner of the offending vehicle.

3] In support of their case, appellant no.1 examined

himself and produced various documentary evidence on record to

prove the income of the deceased.

4] On appreciation of the said evidence, the Tribunal by

considering the age of the deceased, which was 25 years and also

the age of appellant nos.1 and 2, who were the parents, applied the

multiplier of '13' and in the absence of any evidence produced on

record to show that deceased was earning Rs.4,000/- per month,

considered his notional income of Rs.15,000/- per annum; then by

deducting 1/3 rd of the said income towards his personal expenses,

the Tribunal awarded compensation of Rs.1,30,000/- only, inclusive

of Rs.50,000/- towards no fault liability.

5] As the respondent nos.1 and 2 had not challenged the

findings of the Tribunal, holding them jointly and severally liable to

2206 FA 418/2008 4 Judgment

pay the amount of compensation to the appellants, the only issue

raised for consideration in this appeal is whether the amount of

compensation, as awarded by the Tribunal, is just, adequate and

fair?

6] In this respect, as regards the age of the deceased that

at the time of accident he was 25 years of age, is not disputed.

Similarly, having regard to the fact that he was unmarried for

deciding the multiplier, as the age of his parents, which was on

higher side, was necessary to be considered, and accordingly the

multiplier applied by the Tribunal of '13' is also correct.

7] However, the only aspect in which the Tribunal has

gone wrong is about income of the deceased. It is pertinent to note

that the claimant no.1 Raghunath, who was the father of deceased,

has examined himself and produced on record the Shop Act Licence

at Exh.34 to show that deceased was running the business of

Cushion making and repairs, under the name and style as "S.R.

Cushion Works" at Nagpur. He has also produced on record the

experience certificate of the deceased at Exh.35, which shows that

deceased was working with Maharashtra Body Works and also with

2206 FA 418/2008 5 Judgment

A to Z Cushion Works. According to his evidence, deceased was

earning the income of Rs.4,000/- per month from his business.

Except for the fact that he has not produced any document in

respect of the actual amount earned by the deceased and that his

income was not regular, nothing worthwhile is elicited in his cross-

examination conversely. In cross-examination of claimant no.1 it is

brought on record that deceased was giving him Rs.3,000/- per

month for household expenses. Therefore, the Tribunal has

committed an error in holding that there was no evidence to show

that deceased was earning the income of Rs.4,000/- per month and

held his notional income as Rs.15,000/- per annum. As deceased

was of the age of 25 years and running the business since 3 years

with necessary experience for the said business, then the income of

Rs.4,000/- per annum as stated by his father from the said business,

cannot be called as unreasonable or on higher side, so as to

disbelieve the same.

8] In view of the judgment of Hon'ble Apex Court in the

case of Santosh Devi -Vs- National Insurance Co. Ltd., (2012) 6

SCC 421 and the subsequent decision in the case of Rajesh -Vs-

Rajbir Singh, 2013 (9) SCC 54, there has to be addition of 50% of

2206 FA 418/2008 6 Judgment

the income towards future prospects of deceased. Therefore, if 50%

of his income is added towards future prospects, then his income

can be calculated at the rate of Rs.6,000/- per month. As he was

unmarried, 50% of the said amount was required to be deducted

towards his personal expenses. Thus, the amount of compensation

to which the claimants becomes entitled for loss of dependency is

Rs.3,000/- per month x 12 = Rs.36,000/- per annum x 13 =

Rs.4,68,000/-.

9] In this case, the Tribunal has not awarded any amount

towards funeral expenses or even towards the loss of love and

affection, considering that appellant nos.1 and 2 are the father and

mother of the deceased. As per the above referred decision of

Hon'ble Apex Court in the case of Rajesh -Vs- Rajbir Singh, amount

of Rs.1,00,000/- each is required to be awarded to appellant nos.1

and 2 towards the loss of love and affection of their son and

Rs.25,000/- towards funeral expenses.

10] Thus, the total amount of compensation to which

appellants become entitled comes to Rs.6,93,000/-. This amount is

inclusive of the amount already awarded by the Tribunal, which is

2206 FA 418/2008 7 Judgment

to the tune of Rs.1,30,000/-, inclusive of no fault liability amount of

Rs.50,000/-. Appellants become entitled, therefore, to recover

amount of Rs.6,93,000/- - Rs.1,30,000/- = Rs.5,63,000/- from the

respondents.

11] As regards the interest, it is submitted by learned

counsel for appellants that, having regard to the recent trend of the

decisions of the Hon'ble Supreme Court, the appellants are entitled

to the interest at the rate of 9 % per annum. Per contra, learned

counsel the insurance company has submitted that this appeal

remained pending in the court from the year 2008. No efforts were

made by the appellants to circulate the matter for final hearing. It is

urged that the accident has also taken place in the year 1999. Hence

for no fault of the insurance company, the insurance company

should not be fastened with the liability of paying the interest at the

rate of 9% per annum.

12] In my considered opinion, though it is true that the

appeal has remained pending in the court for last 6 to 7 years, but it

is for no fault on the part of either the appellants or respondents, it

may be on account of pendency of several matters in this court, and

2206 FA 418/2008 8 Judgment

therefore, for that, the appellants cannot be penalised and deprived

from the rate of interest at 9% per annum which is awarded by the

Hon'ble Apex Court as the correct rate of interest in the decision of

Municipal Corporation of Delhi -Vs- Association of Victims of

Uphaar Tragedy, 2012 ACJ 48 (SC) and further confirmed in the

decision of Asha Verman and others -Vs- Maharaj Singh and

others, 2015 ACJ 1286.

13] In view of above discussion, appeal is allowed.

14] Respondent nos.1 and 2 are directed to pay jointly and

severally, enhanced amount of compensation of Rs.5,63,000/-, to

the appellants along with future interest at the rate of 9% per

annum from the date of filing of the petition till realization of the

entire amount.

15] Appeal, is thus disposed of in above terms, with no

order as to costs.

JUDGE

Yenurkar