Bombay High Court
Smt. Maya Widow Of Rajendra vs Shri Ashok Kumar Son Of on 31 March, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
First Appeal No. 309 of 2003
1. Smt. Maya widow of Rajendra
Waghmare.
.....Deleted following death
as per order dated 5-9-14.
2. Smt. Annapurna wife of
Hiraman Waghmare.
.....Deleted as per
order dated 11-7-16.
3. Shri Hiraman son of Bisan
Waghmare,
.....Deleted as per
order dated 11-7-16.
4. Ms. Ritika daughter of late
Rajendra @ Raju Waghmare,
aged about 4 years,
occupation - student,
through her guardian - Ms. Manorama
daughter of Jagannath Jambhulkar,
aged about 55 years,
occupation - Household,
resident of 1, Vishal Tower,
Flat No. 503,
10 no. Pool, near Nagsen
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School, Bezonbag,
Kamptee Road,
Nagpur. ..... Appellants
Org. Petitioners.
Versus
1. Shri Ashok Kumar son of
Tuljashankar Oza,
aged about major,
occupation - Transportation,
resident of E-10, Laxminagar,
Nagpur.
2. Shri Manohar son of Tularam
Rahule,
aged about - major,
occupation - Transportation,
resident of near Amle Babu Chowk,
Laksharibagh, Nagpur.
3. The Divisional Manager,
National Insurance Co. Ltd.,
Divisional Office No.1,
Firdos Chambers,
Wardha Road,
Nagpur. ..... Respondents.
Org. Respdts.
*****
Mr. S. N. Kumar, Adv., for the appellant.
None for respondent nos. 1 and 2, though served.
Mrs. Smita Deshpande, Adv., for respondent no.3.
*****
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CORAM : A.S. CHANDURKAR, J.
Date : 31st January, 2017
ORAL JUDGMENT:
01. The present appeal filed under Section 173 of the Motor
Vehicles Act, 1988 [for short "the said Act"] by the original claimants
seeks enhancement in the amount of compensation as awarded by the
Motor Accident Claims Tribunal, Nagpur, in the Claim Petition No. 679
of 1997. By judgment dated 7th January, 2003, the learned Member
was pleased to grant compensation to the extent of Rs.1,84,000-00
under the provisions of Section 166 of the said Act.
02. On 26th June, 1997, one Rajendra Waghmare, who was
working as a Clerk, was travelling in an auto-rickshaw from Kamptee to
Nagpur. Said auto-rickshaw met with an accident when it was dashed
by a truck coming from the opposite side. As a result of said accident,
Rajendra suffered various injuries resulting in his death. His legal
heirs, therefore, filed proceedings for grant of compensation. The
Claims Tribunal, after considering the evidence on record, partly
allowed the application under Section 166 of the said Act and awarded
compensation of Rs.1,84,000-00. Being aggrieved by the quantum of
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compensation, the legal representatives have filed the present appeal.
03. Shri S.N. Kumar, learned counsel for the appellant,
submitted that considering the nature of evidence, the Claims Tribunal
ought to have awarded higher compensation. It was submitted that
the deceased was employed on the post of Clerk and his future
prospects have not been taken into consideration while determining
the amount of compensation. The appointment of the widow of
Rajendra on compassionate basis has been kept in mind, resulting in
award of lesser compensation. Similarly, amount of compensation on
various conventional heads has not been granted. He referred to the
averments as amended in the claim petition and submitted that the
appellant was entitled for higher compensation. In support of his
submissions, the learned counsel placed reliance on the following
decisions:-
[a] Rajesh & others Vs. Rajbir Singh & others [2013
ACJ 1403],
[b] Sarla Verma (Smt) & ors. Vs. Delhi Transport
Corporation & another [(2009) 6 SCC 121],
[c] Reshma Kumari & ors. Vs. Madan Mohan &
another [(2013) 9 SCC 65],
[d] Vimal Kanwar & ors. Vs. Kishore Dan & ors.
[(2013) 7 SCC 476], and
[e] Kalpanaraj & ors. Vs. Tamil Nadu State Transport
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Corpn. [(2015) 2 SCC 764],
04. Smt. Deshpande, learned counsel for the respondent no.3,
supported the impugned order of the Claims Tribunal. According to
her, the Claims Tribunal, after considering the entire evidence on
record, has rightly awarded compensation. The appointment of the
deceased having been made on 3rd April, 1996 and the accident
having occurred shortly thereafter, it could not be said that the
deceased was a permanent employee. Hence, there was no question
of granting any amount towards future prospects, as urged. It was
submitted that the appellants had restricted their claim before the
Claims Tribunal and, therefore, they were precluded from seeking any
enhancement in the amount of compensation. It was then pointed out
that the appeal was dismissed in default on 11th December, 2006 and
was restored only on 13th April, 2010. This aspect was also required
to be taken into consideration, as the appellants were not diligent in
prosecuting the appeal. It was, therefore, submitted that considering
the evidence on record, no case was made out to further enhance the
amount of compensation.
05. With the assistance of the learned counsel for the parties, I
have perused the records of the case and I have given due
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consideration to their respective submissions.
06. The following point arises for determination:-
Whether the appellants are entitled for higher amount of
compensation?
07. Before the Claims Tribunal, the widow of Rajendra was
examined at Exh.37. She placed on record the Salary Certificate of
Rajendra at Exh.41. In her cross-examination, it was stated that she
had been appointed on compassionate ground by the employer of
Rajendra. Another witness examined was a co-passenger of Rajendra,
who was also employed with him. This witness has been examined at
Exh.47. The Claims Tribunal, after considering the aforesaid evidence,
took into consideration the fact that the last drawn salary of the
deceased was Rs. 3,000-00 and after taking into consideration the
entitlement of the claimant no.1 and the age of the deceased, applied
the multiplier of thirteen. On that basis, compensation of Rs. 1,84,000-
00 came to be determined.
08. By order dated 30th January, 2017, the appellant was
permitted to amend the claim petition with a view to seek higher
compensation. In Rajesh & others [supra], it has been held by the
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Honourable Supreme Court that while adjudicating proceedings under
Section 166 of the said Act, the Court has to award fair and reasonable
compensation if necessary by ignoring the claim as made in the claim
petition. The manner of determining fair compensation has been
referred to in Sarla Verma & ors. [supra]. Grant of compensation on
account of various conventional heads has been adverted to. In Vimal
Kanwar & ors. [supra], it has been held that grant of compassionate
appointment to a legal heir of the victim would not amount to granting
any pecuniary advantage for the purposes of the said Act, so as to
reduce the amount of compensation. Taking into consideration the
various principles laid down by the Honourable Supreme Court in the
decisions referred to above, the amount of fair compensation would
have to be adjudicated.
09. As per the Certificate at Exh.41, the gross salary of Rajendra
was shown as Rs.3527-64, while the net salary of the deceased is
shown as Rs.3,003-64. After deducting only the amount of Professional
Tax, Labour Welfare Fund and contribution towards G.S.L.I.S., the net
monthly income would come to Rs.3,400-00. The said document at
Exh.41 does not indicate that the appointment of the deceased was
temporary in nature, as sought to be urged by the learned counsel for
the respondent no.3. Hence, considering the age of the deceased, the
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aspect of future prospects is required to be taken into consideration.
Fifty per cent of the amount of Rs.3400-00 [rupees three thousand
four hundred only] can be taken to be the future prospects. Said
amount would, therefore, be Rs.1700/-. The total income would be
Rs.3400-00 + Rs.1700-00 = Rs.5100-00. The deceased was survived
by parents, widow and one daughter. Hence, on account of personal
expenses, one-fourth amount of Rs.1275-00 is liable to be deducted.
The Claims Tribunal, while determining the multiplier has referred to
the ages of the parents as well as the age of the deceased, and has
taken the average of all the figures, and has thereafter applied the
multiplier of thirteen. Considering the observations of the Honourable
Supreme Court in Sarla Verma [supra], the multiplier applicable would
be sixteen. Thus, the total loss of dependency would come to Rs.3825-
00 x 12 x 16=Rs.7,34,400-00 [rupees seven lakhs thirty-four thousand
four hundred only] .
10. In so far as conventional heads of compensation are
concerned, amount of Rs.1,00,000-00 [rupees one lakh only] can be
granted for loss of consortium, Rs.1,00,000-00 [rupees one lakh only]
for loss of love and affection for the minor child. Further amount of Rs.
25,000-00 [rupees twenty-five thousand only] is liable to be granted
for funeral expenses. Thus, the claimant would be entitled for a total
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amount of compensation of Rs.9,60,000-00 [rupees nine lakhs sixty
thousand only]. The Claims Tribunal has awarded compensation at the
rate of nine per cent per annum. The same is liable to be paid from
18th August, 1997, which is the date on which the proceedings were
filed. The appeal, however, was dismissed on 11th December, 2006
and it was restored on 13th April, 2010. Hence, interest on the
amount of compensation is not liable to be paid for said period.
Interest would, however, be liable to be paid till realization of the
enhanced amount of compensation.
Hence for aforesaid reasons, the point as framed is
answered by holding that the appellant - claimant is entitled for higher
amount of compensation, as stated above.
11. Accordingly, the following order is passed:-
ORDER
[a] It is held that the appellant is entitled to receive
total compensation of Rs.9,60,000-00 [rupees
nine lakhs sixty thousand only] including the
amount of No-fault-Liability. The judgment in
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Claim Petition No. 679 of 1997 is partly modified
as above.
[b] After deducting the compensation already
received, the balance amount of compensation shall
be paid to the appellant-claimant within a period of
three months by the respondents. The appellants
would not be entitled for interest for the period from
11th December, 2006 to 13th April, 2010. Interest @
nine per cent per annum is liable to be paid from 18th
August, 1997 till realization, excluding period from
11th December, 2006 to 13th April, 2010.
[c] The appellant-claimant, before receiving the amount of
additional compensation, shall pay the deficit court
fees on the claim as granted.
12. First Appeal is partly allowed in aforesaid terms with no
order as to costs.
Judge
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