Bombay High Court
Hiraman Hanwant Bhoyar & 2 Ors vs The Br. Manager Of The National ... on 29 May, 2017
Bench: B.P. Dharmadhikari
fa773.08.J.odt 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.773 OF 2008
1] Hiraman s/o Hanwant Bhoyar
Aged about 45 yrs., Occ: Teacher.
2] Avikumar s/o Hiraman Borkar,
Aged about 17 yrs., Occ: Student.
3] Minakshi d/o Hiraman Borkar,
Aged about 15 yrs., Occ: Student.
The appellant No.2 and 3 are minor
through natural guardian of
appellant No.1, R/o At Post Veltur,
Tah. Kuhi, Dist. Nagpur. ....... APPLELLANTS
...V E R S U S...
1] The Branch Manager of the
National Insurance Co. Ltd.,
Commercial Complex, 5th Floor,
Wardha Road, Ajni Chowk,
Nagpur.
2] H.N. Gupta,
Aged about Major, Occ: Owner,
R/o C/o Kailashchand N. Gupta,
262, Central Avenue, Lakadganj,
Nagpur. ....... RESPONDENTS
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Ms. Monali H. Pathade, Advocate for Appellants.
None for Respondents.
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CORAM: B.P. DHARMADHIKARI, J.
DATE: 29 th
MAY, 2017.
ORAL JUDGMENT
1] Heard Advocate Pathade for appellants.
Nobody appears for respondents.
2] In this appeal under Section 173 of the Motor
Vehicles Act, accidental death of Venubai, teacher in Zilla Parishad
School on 02.06.2002 is not in dispute. Fact that she was 46 years
old is also not in dispute. Salary certificate Exh.88 issued to her by
employer namely Block Education Officer, Panchayat Samiti, Kuhi
(Exh.35) is also not in dispute.
3] Advocate Pathade submits that in view of judgment
Hon'ble Apex Court reported at I (2008) ACC 162 (SC) National
Insurance Company Ltd. vs. Indira Srivastava and others, deduction
from her monthly emolument towards G.P.F., L.I.C., Group
Insurance Scheme etc. could not have been looked into for
working out annual dependency of the family. To urge that
amount of Rs.1 lakh needed to be towards loss of consortium,
Rs.1 lakh each to children for loss of love, affection, care and
amount of Rs.25,000/- towards funeral expenses, judgment of
fa773.08.J.odt 3/5
Hon'ble Apex Court reported at 2013 (3) T.A.C. 697 (S.C.) Rajesh
and others v. Rajbir Singh and others has been relied upon.
To claim interest at 9% per annum from date of institution of
proceedings. Judgment of Hon'be Apex Court reported at 2015 (1)
T.A.C. 340 (S.C.) Smt. Neeta w/o Kallappa Kadolkar and others
etc. vs. The Divisional Manager, MSRTC, Kolhapur is relied upon.
Lastly she submits that considering age of deceased to be 46 years,
30% amount needed to be added towards loss of future prospect
as laid down by Hon'ble Apex Court in case of Sarla Verma and
others v. Delhi Transport Corporation and another reported at 2009
ACJ 1298.
4] The question to be looked into is whether learned
M.A.C.T. has correctly works out annual dependency and granted
just compensation under relevant heads.
5] The salary certificate Exh.35 has been wrongly
mentioned as Exh.32 in paragraph 15 of its judgment by M.A.C.T.
However, heads of deduction looked into by paragraph 15 reveal
that investments in the interest of family also have been deducted,
and therefore, indirectly are lost to family. The judgment of
Hon'ble Apex Court mentioned in case of National Insurance
Company vs. Indira Srivastava and others mention (supra) points
fa773.08.J.odt 4/5
out that this approach is unsustainable.
6] Perusal of Exh.35 reveals that deceased was not
paying income tax and only amount of profession tax of Rs.175/-
needed to be deducted from her monthly income.
7] Amount accordingly works out needed to be
increased by 30% to take care of loss of future prospects and then
her annual income could have been worked out. To complete
dependency, 1/3rd amount is needed to be deducted towards her
personal expenditure and then remainder should have been
multiplied by 13. Accordingly, when calculations are undertaken
on these lines, the compensation amount payable to appellant
works out to Rs.12,04,320/-.
8] By following above mentioned judgments, it is
apparent that children of deceased are entitled to amount of Rs.1
lakh each for loss of love, affection, care, while appellant No.1
husband is entitled to amount of Rs.1 lakh towards loss of
consortium. Similarly, family needs to be granted funeral expenses
of Rs.25,000/-. That quantum of damages allowed by M.A.C.T.
under above heads is therefore, unjust.
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9] So calculate total amount of compensation receivable
by appellant works out to Rs.15,29,320/-. Interest on it needs to
be calculated at 9% from date of filing of claim petition.
The amount already received by the appellant, then needs to be
substracted to arrive at final balance due and payable to them.
10] The claim made in the appeal before this Court is for
Rs.9,42,484/- and court fee has been paid on amount by which
enhancement is sought i.e. on Rs.1,98,484/-.
11] In this situation, appellant shall arrange to deposit
amount of deficit court fee within two months from today.
12] The respondents to calculate balance amount along
with interest becoming payable to the appellant in view of this
order within next three months and pay it to them immediately
thereafter.
13] Appeal is thus allowed and disposed of. No costs.
JUDGE
NSN
