Bombay High Court
Smt Chitra Hemendrakumar Agrawal ... vs Jagdish Marotrao Meshram & Anor on 23 May, 2017
Bench: B.P. Dharmadhikari
fa1060.07.J.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.1060 OF 2007
1] Smt. Chitra wd/o Hemendrakumar Agrawal,
Aged about 50 yrs.
2] Vishnu s/o Hemendrakumar Agrawal,
Aged about 29 yrs.
3] Anuj s/o Hemendrakumar Agrawal,
Aged about 27 yrs.
All R/o Amgaon, Tah. Amgaon,
District Gondia. ....... APPELLANTS
...V E R S U S...
1] Jagdish s/o Marotrao Meshram,
Aged Major, R/o Risama, Tah. Amgaon,
District Gondia.
2] The National Insurance Co. Ltd.,
Shri Talkies Road, Gondia. ....... RESPONDENTS
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Shri Asgar Hussain, Advocate for Appellants.
Shri N.H. Shams, Advocate for Respondent No.2.
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CORAM: B.P. DHARMADHIKARI, J.
DATE: 23 rd
MAY, 2017.
ORAL JUDGMENT
1] Heard Shri Hussain, Advocate for appellant and
Shri Shams, Advocate for respondent No.2-Insurance Company.
fa1060.07.J.odt 2/6
2] Challenge in this appeal under Section 173 of the
Motor Vehicles Act is to the judgment dated 19.07.2007 delivered
by Member, Motor Accident Claims Tribunal, Gondia in Claim
Petition No.41 of 2004.
3] Accidental death of Hemantkumar is a businessman
and also agriculturist is not in dispute. At the time of accident
on 27.04.2004, he was about 52 years old and his age is also not
in dispute.
4] Upon these undisputed facts, Shri Hussain, Advocate
has relied upon judgments of Apex Court in (i) Sarla Verma v.
Delhi Transport Corporation reported in 2009 ACJ 1298 (SC), (ii)
Rajesh vs. Rajbir Singh reported in 2013 ACJ 1403 (SC) and (iii)
Asha Verman and others v. Maharaj Singh and others reported in
2015 ACT 1286.
5] According to him, in impugned judgment multiplier
of 11 ought to have been applied and loss of future prospects
should have been added at 15%. The annual dependency
calculated according to him, after deduction of income tax and
1/3rd amount for personal expenditure of deceased worked out to
fa1060.07.J.odt 3/6
Rs.1,10,000/- applying multiplier of 11, the compensation amount
worked out to Rs.12,10,000/-. He points out that for loss of
consortium, amount of Rs.5000/- only has been awarded while
Rs.2500/- are sanctioned towards the funeral expenses. He prays
for grant of amount of Rs.1 lakh towards loss of consortium to the
appellant No.1 widow, amount of Rs.1 lakh each for appellant
Nos.2 and 3 i.e. sons of deceased and amount of Rs.25,000/-
towards funeral expenses. He further points out that 9% interest
should have been awarded from the date of filing of appeal. On
this amount, the Trial Court has awarded 7%.
6] Advocate Shams does not dispute legal position and
the judgments of the Apex Court. He, however, points out that the
sons were major and there is no material placed on record to
support the prayer for grant of interest at 9%. According to him,
the view taken by the M.A.C.T. on 21.07.2007 cannot be said to
be contrary to law or not based on evidence and, therefore, no
interference is called for. He prays for dismissal of appeal.
7] Following questions arise for consideration:
[i] Whether M.A.C.T. was justified in applying multiplier
fa1060.07.J.odt 4/6
of 5 considering the age of deceased Hemantkumar?
[ii] Whether annual dependency has been rightly
calculated by M.A.C.T.?
[iii] Whether appellants are entitled to the compensation
under head like loss of consortium, love and affection
and funeral expenses as per judgment of the Apex
Court?
[iv] Whether the appellant are entitled for interest at 9%?
8] During arguments, it was pointed out to this Court
that annual dependency has been worked out by taking into
consideration previous two returns only filed by the deceased.
Last return of his income which came to be filed after his death
has not been considered at all and this has resulted in arriving at
less average. The income of deceased even in financial year
2003-2004 was relevant and accident has taken place
on 27.04.2004. Thus, assessment of income for year 01.04.2003
to 31.03.2004 could not have been ignored merely because return
has been filed after his death. When that returned income is
added to his previous returned income and average for 3 years is
worked out, the gross income works out to Rs.1,90,409/- with
resulting income tax of Rs.50,000/-. Roughly, the annual income
fa1060.07.J.odt 5/6
works out to Rs.1,40,000/-. As held by the Hon'ble Apex Court in
case of Rajesh v. Rajbir Singh (supra). 15% amount needs to be
added towards loss of future potential and accordingly after
adding that amount, net annual income comes to Rs.1,61,000/-.
After deducting 1/3rd amount therefrom for his personal expenses
annual income of Rs.1,10,000/- is left for family. This amount of
annual dependency is to be multiplied by multiplier of 11 as per
judgment of Apex Court in Sarla Verma (supra).
The compensation amount thus works out to Rs.12,10,000/-.
9] Similarly, in the backdrop of various judgments
mentioned supra it is settled position that for loss of consortium,
amount of Rs.1 lakh needs to be awarded to widow. Children are
entitled to amount of Rs.1 lakh each towards love and affection.
Funeral expenditure sanctioned by the Hon'ble Apex Court is also
of Rs.25,000/-. Thus, grant of amount at lesser rates by M.A.C.T.
on this count is also unsustainable as law laid down by the
Hon'ble Apex Court needs to be applied even in the present
matter.
10] Hon'ble Apex Court itself has clarified that interest is
to be calculated at 9% and paid from the date of filing application
fa1060.07.J.odt 6/6
under Section 166 of the Motor Vehicles Act.
11] Accordingly, the appellants are held entitled to
receive compensation of Rs.12,10,000/-. They are also entitled to
amount of Rs.1 lakh towards consortium, amount of Rs.2 lakh
towards loss of love and affection and amount of Rs.25,000/-
towards funeral expenses. Thus, the total amount to which they
become entitled on the date of filing of petition i.e. on 30.07.2004
is Rs.15,35,000/-. On this amount, interest needs to be calculated
at 9% from 30.07.2004 till its payment to them. The amount
already received/paid to appellant be substracted from the total
amount found due and payable by them as per this judgment.
12] The exercise of calculating the compensation due and
payable accordingly shall be completed within next three months
and balance amount thereafter found payable shall be made over
to them within next three months. Appeal is accordingly partly
allowed and disposed of. No costs.
JUDGE
NSN
