Bombay High Court
Prabhakar Sitaram Joshi And 3 Ors vs Arunkumar Singh Ramraksha Singh ... on 22 May, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.801/2006
1. Shri Prabhakar S/o Sitaram Joshi,
aged 64 Yrs., Occu. Nil.
2. Mrs. Shobhana W/o Prabhakar Joshi,
aged 53 Yrs., Occu. Household.
3. Kishor S/o Prabhakar Joshi,
aged 34 Yrs., Occu. Nil.
4. Vaishali D/o Prabhakar Joshi,
aged 24 Yrs., Occu. Household.
Respondent Nos.1 to 4 are R/o Vishnu Prayag
Apartment, Behind Natraj Cinema
Welekar Galli Mahal, Nagpur. ..Appellants.
..Vs..
1. Shri Arunkumar Singh S/o Ramraksha Singh,
aged about not known, Occu. Business,
M/s. Singh & Sons Chhindwara Road,
Dahegaon (Rangari), Tahsil Saoner,
Distt. Nagpur 441 113.
2. Sidharatha Namdeo Pargane,
aged about 34 Yrs., Occu. Driver,
Behind Arjun Driver's House Ward No.5,
Khaparkheda, Tahsil Saoner, Distt. Nagpur.
3. The Branch Manager,
The New India Assurance Co. Ltd.,
Rajkamal Building, 2nd Floor, Near Panchsheel
Chowk, Wardha Road, Nagpur -12.
4. Smt. Apurva Ashok Joshi,
aged about 26 Yrs., Occu. Nil.
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5. Ajinkya Ashok Joshi,
aged 3 ½ Yrs., through natural guardian
Smt. Apurva Ashok Joshi.
Both R/o Flat No.29, Hitesh Apartment
Jaripatka Police Station Square, Jaripatka,
Nagpur. ..Respondents.
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Ms. Deepali Sapkal, Advocate h/f Shri A.S. Kilor, Advocate for the appellants.
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CORAM : B.P. DHARMADHIKARI, J.
DATE : 22.5.2017.
ORAL JUDGMENT
1. Matters are being heard finally in summer vacation after due
notification and calling for objections, if any. Registry has informed that only
those matters in which counsel representing the respective parties did not
object to listing of matters for final hearing are placed on board. In the
present matter nobody has objected and accordingly this matter is placed for
final hearing. It was called out in first half and again in second half.
2. I have heard Advocate Deepali Sapkal who appears for appellants.
Nobody appears for respondents. Respondent No.3 is the Insurance Company
while respondent Nos.4 and 5 are original claimants.
3. The present appeal is by parents, brother and sister of deceased.
This Court has admitted the matter for final hearing on 18 th January, 2007
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without any interim orders. It is, therefore, apparent that entire amount of
compensation as awarded by Motor Accident Claims Tribunal is received by
claimants i.e. Respondent Nos.4 and 5 in this appeal.
4. The respondent No.4 who was petitioner No.1 while respondent
No.5 (son of deceased) was petitioner No.2 in Claim Petition No.575/1995.
The accidental death of her husband Ashok s/o Prabhakar Joshi on 31 st May,
1995 is not in dispute.
5. Preliminary grievance raised by Advocate Sapkal is about not
awarding full compensation to parents, brother and sister of deceased who
were dependent upon deceased namely Ashok Prabhakar Joshi. She has
invited attention to evidence of claimant - Smt. Apurva as also to evidence of
father of deceased namely Prabhakar to urge that dependency and extent
thereof has been established on record. She further states that in impugned
judgment dated 5th July, 2006 Tribunal has awarded total compensation of
Rs.6,37,000/-. Out of that amount, amount of Rs.75,000/- each has been
given to parents while balance amount has been made over to Smt. Apurva.
She points out that rate of interest awarded is only 7.5% from the date of
registration of proceedings before Motor Accident Claims Tribunal.
6. She claims that when trial Court has found parents dependent upon
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deceased Ashok, number of dependents exceeded four and, therefore,
deduction of 1/3rd amount from monthly earning to calculate dependency is
unwarranted. It is urged that deceased was in employment therefore, loss of
future potential / prospects calculated at 30% be also needed to be added and,
therefore, the dependency could have been worked out by placing reliance
upon the judgment given in the case of Asha Verman and others V/s. Maharaj
Singh and others reported at 2015 A.C.J. 1286. She submits that loss of
consortium to widow should have been awarded at Rs.1,00,000/-, child also
needed to be given amount of Rs.1,00,000/- for loss of love and affection,
funeral expenses needed to be awarded at Rs.25,000/- and hence award needs
to be modified.
7. She has also invited attention to Schedule I of Hindu Succession Act
to urge that mother of Ashok is Class-I heir and, therefore, entitled to equal
share in compensation to be awarded. She submits that quantification of
compensation at Rs.75,000/- each for parents is arbitrary and without any
basis.
8. I have perused impugned judgment and records with her assistance.
Section 166 of the Motor Vehicles Act permits a legal representative to file
proceedings to recover claim on account of death. The arguments advanced
supra when perused in the backdrop of Schedule I of Hindu Succession Act do
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not show brother or sister or then father as legal representatives of Ashok. If
mother is the legal representative and was not dependent upon her husband
namely Prabhakar, in the scheme of Section 166 of Motor Vehicles Act, 1988
read with Schedule I of Hindu Succession Act, 1955 quantum of assistance
received from Ashok by her may not be decisive. The evidence on record shows
joint stay with Ashok by all and the assertion by Prabhakar that his son was
paying Rs.2,000/- per month has remained unrebutted.
9. The judgments of Hon'ble Apex Court mentioned supra lay down a
standard compensation of Rs.1,00,000/- each to be awarded to widow towards
loss of consortium, the amount of Rs.1,00,000/- to each child for loss of love
and affection and amount of Rs.25,000/- towards funeral expenses. Here as
already noted supra the amount awarded under these heads is much less. It
needs to be mentioned here that original claimants namely Apurva and Ajinkya
have not approached this Court seeking any enhancement. Not only this, they
have also not challenged the grant of amount of Rs.75,000/- each to parents of
Ashok. The parents of Ashok along with other appellants have not questioned
the amount of Rs.8,000/- awarded as compensation towards medical
treatment. Moreover, Hon'ble Apex Court has observed that interest to be
awarded in such situation has to be 9% from the date of petition and here
interest awarded is only 7.5%.
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10. In the light of observations supra as the Insurance Company and
other respondents have chosen not to appear and assist this Court, I find that
interest of justice can be met with by remanding the matter back to Motor
Accident Claims Tribunal for its fresh consideration in accordance with law.
The arguments raised by Advocate Sapkal and noted by this Court supra can
then be examined by Motor Accident Claims Tribunal as per law and the grant
of compensation can be modified on higher side. This will result in grant of
more / better compensation to the legal representatives of deceased Ashok.
Hence leaving all these issues and questions open and only to find out
possibility of such higher computation sought for the benefit of legal
representatives of deceased, judgment dated 5th July, 2006 in Claim Petition
No.575/1995 is quashed and set aside. Claim petition is restored back to the
file of Motor Accident Claims Tribunal, Nagpur for its fresh consideration as per
law after giving parties necessary opportunity.
11. Motor Accident Claims Tribunal shall attempt to decide the matter
afresh within next one year.
12. Appeal is thus partly allowed with no order as to costs.
JUDGE
Tambaskar.
