The Oriental Insurance Company ... vs Smt. Sangita Wd/O Raju Jayde And ...
2017 Latest Caselaw 3614 Bom

                                           1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                      NAGPUR BENCH : NAGPUR



First Appeal No. 626 OF 2017



Appellant             :        The Oriental Insurance Company Limited, 

                               through its Divisional Manager, Division 

                               Office, Indira Market, Wardha, represented by

                               Dy Manager, Oriental Insurance Company, 

                               Regional Office, Nagpur

                               versus

Respondents           :        1.  Smt Sangita wd/o Raju Jayde, aged about 

35 years, Occ: Household

2. Smt Kusumbai wd/o Damodar Jayde, aged

about 70 years, Occ: Nil

3. Vaishali d/o Raju Jayde, aged 15 years

4. Ku Shivani d/o Raju Jayde, aged 13 years

5. Nakul s/o Raju Jayde, aged 8 years

Respondents no. 3 to 5 being minor,through

their mother/respondent no. 1

6. Shadab Khan Fatyb Khan, aged Adult, Occ:

Business and Driver, resident of Khatib Ward,

Pusad, District Yavatmal

Smt Mrinal Naik, Advocate for appellant

Ms B. M. Kasare, Advocate for respondents no. 1 to 5

Respondent no. 6 served

Coram : S. B. Shukre, J

Dated : 27th June 2017

Oral Judgment

1. Heard. Admit. Sending for Record and Proceedings and filing

of private paper book is dispensed with. Taken up for final disposal in view

of order dated 14th December 2015. Heard Ms Mrinal Naik, learned

counsel for appellant and Ms B. M. Kasare, learned counsel for respondents

no. 1 to 5. None appears for respondent no. 6 though duly served. No

written submissions have been filed on his behalf.

2. This appeal has been filed challenging only one finding

recorded in the judgment and order dated 27th November 2014 rendered

by the Chairman, Motor Accident Claims Tribunal, Wardha in MACP No.

121 of 2013. This finding is regarding the age of the deceased at the time

of his accident.

3. Respondents no. 1 to 5 were dependent upon the income of

deceased Raju Jayade who was working in the Police Department. He died

in an accident involving the use of motor vehicle on 21.3.2013. At that

time, deceased was riding motor-cycle bearing registration No. MH-32-N-

4184 and when the motor-cycle came within the jurisdiction of Gram

Panchayat, Sawangi (Meghe), one truck bearing registration number MH-

31/W-4933 suddenly appeared from the rear side of the motor-cycle and

gave a violent dash to the motor-cycle. The result was, deceased Raju fell

down on the road sustaining grievous head injuries. He died

instantaneously of the injuries. A claim petition was filed by respondents

no. 1 to 5 seeking compensation for untimely death of Raju under Section

166 of the Motor Vehicles Act. It was allowed on merits of the case.

However, learned counsel for the appellant submits that the age of the

deceased was wrongly found to be 40 years although the evidence

available on record clearly showed that he was 47 years old at the time of

accident. It is also the contention of the appellant that for the age of 47

years, the appropriate multiplier as per the ruling in the case of Sarla

Verma vs. Delhi Transport Corporation reported in 2009 ACJ 1298 (SC),

was "13" and the Tribunal wrongly considered the age to be 40 years and

applied multiplier of "15" and thereby it has committed serious error of fact

and law.

4. Learned counsel for the respondents no. 1 to 5 submits that

the finding recorded by the Tribunal as regards the age of the deceased is

according to the evidence available on record and, therefore, is correct.

5. On going through copy of deposition which is placed on

record by learned counsel for the appellant and which is marked "X" for

identification, I find that witness no. 2 Ravindra Killekar, Deputy

Superintendent of Police for the claimants has stated categorically that the

date of birth of deceased Raju, as contained in the Service Book, was

17.12.1965. This being the evidence available on record, learned Chairman

could not have recorded a different finding that the age of the deceased at

the time of accident was 40 years although it was clearly of 47 years. The

age of the deceased drawn by the learned Chairman of the Tribunal

appears to be on the basis of some imagination. This finding of fact is,

therefore, perverse and needs to be quashed and set aside.

6. In the result, I find that the age of the deceased at the time of

accident was of 47 years and not of 40 years and therefore, according to

Sarla Verma v. Delhi Transport Corporation (supra), the appropriate

multiplier to be applied in the instant case would be "13" instead of "15".

There is no dispute about the loss of dependency and, therefore, the

multiplier of "13" will have to be applied to the loss of income of Rs.

2,32,740/- and if we take "13" as multiplier, the total future loss of income

would be Rs. 30,25,620/-. The compensation awarded by the Tribunal

under non-pecuniary head has not been challenged and, therefore, the

same will have to be added to the amount of total loss of income and by

adding the same, the compensation that the claimants would be entitled to

receive from the appellant and respondent no. 6 jointly and severally

would be of Rs. 32,30,620/-. This amount shall be payable from the date of

application and shall carry interest @ 7.5% per annum from the date of

application till actual realization or deposit of the amount in the Tribunal.

In the circumstances, the appeal is allowed in terms of above order. The

Award is modified accordingly. Rest of the Award is confirmed. The

amount which is in excess of the compensation so determined under this

order and which is already deposited in the Tribunal, is permitted to be

withdrawn by the appellant with interest, if any, and the amount from out

of the amount deposited by the appellant before the Tribunal, which

represents the amount determined by this Court, is permitted to be

withdrawn by the claimants.

S. B. SHUKRE, J

Joshi