Bombay High Court
Smt. Sunanda Baba Khedkar & 4 Ors vs The Divn. Manager, The New India ... on 30 May, 2017
Bench: B.P. Dharmadhikari
1 jg.fa910.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
First Appeal No. 910 of 2008
(1) Smt. Sunanda Wd/o Baba Khedkar,
Aged about 45 years, Occupation - Nil.
(2) Ku. Parul D/o Baba Khedkar,
Aged about 24 years, Occupation - Student.
(3) Ku. Snehal D/o Baba Khedkar,
Aged about 22 years, Occupation - Student.
(4) Swapnil S/o Baba Khedkar,
Aged about 20 years, Occupation - Student.
(5) Ku. Gunjan D/o Baba Khedkar,
Aged about 18 years, Occupation - Student.
All are R/o, C/o Kundan
Gopichandji Meshram, Plot No. 1,
Thaore Colony, Indora, Nagpur - 14. ..... Appellants
// Versus //
(1) The Divisional Manager,
New India Assurance Company
Limited, Rani Jhansi Square,
Sitabuldi, Nagpur.
(2) The Manager,
South Eastern Coalfields Limited,
Hasdeo Area, North Zhagarakhand
Colliery, Tahsil Mahendragadh,
District Corea (C.G.) ..... Respondents
-----------------------------------------------------------------------------------------------
Ms. M. H. Pathade, Advocate for the appellants
None for the respondents
----------------------------------------------------------------------------------------------------------------------
CORAM : B. P. DHARMADHIKARI, J.
DATE : 30/05/2017.
2 jg.fa910.08.odt
Oral Judgment
Nobody for the respondents even today. Matter was
called out on 29-5-2017 and there was no appearance for the
respondents.
2. Claimants in this appeal under Section 173 of the
Motor Vehicle Act seek enhancement of compensation. Accidental
death of husband Baba Khedkar in accident on 16-12-2001, number of
dependents on him and the fact that he had reached 40 years of age is
not in dispute.
3. Advocate Pathade submits that as per law laid down
by Hon'ble Apex Court, deduction of one fourth amount only towards
personal expenditure should have been done. Similarly, as deceased
was 40 years, 50% amount of his earnings needed to be added towards
loss of future prospects. She does not dispute use of 15 as multiplier,
however, she claims amount of Rs. 1,00,000/- each on account of loss
of love, affection and care to children and amount of Rs. 1,00,000/- for
wife towards loss of consortium. She also claims funeral expenses at
Rs. 25,000/-.
4. She points out that relevant law was looked into by
this Court in First Appeal No. 773/2008 decided on 29-5-2017.
3 jg.fa910.08.odt
5. She adds that considering the number of family
members and the fact that two daughters were taking education at
Bhopal, monthly income determined at Rs. 3,000/- is unsustainable.
Monthly income should have been worked out at least at Rs. 6,000/-
to 8000/-. She invites attention to evidence of appellant no. 1
Sunanda and one employee of Janpad Panchayat Baikunthpur, District
Oria examined to bring on record the income.
6. Following points arise for determination before me.
(1) Whether learned Motor Accident Claims Tribunal is
right in presuming monthly income to be Rs. 3,000/- ?
(2) Whether just compensation has been awarded under
various heads ?
7. P.W. 1 Sunanda has on oath stated that deceased
was earning Rs. 10,000/- per month. He was a typewriter mechanic
and doing work in name 'India Typewriters Services'. She has stated
that he used to get work from Government Offices, schools and banks.
However, she has not produced on record any document to show his
income. Government Offices, schools and banks would only make
payment by cheques and amounts therefore, could have been reflected
in his bank account/passbook. Non production of that document
4 jg.fa910.08.odt
necessitates drawing of adverse inference. She does not state that
deceased was an Income Tax payer at any point of time. She has not
pointed out living standard or other relevant material to bring on
record the funds required every month to support the same.
8. After speaking about his monthly income, in next
line, she states that her three daughters i.e. appellant nos. 2, 3 and 5
were learning at Bhopal. Witness examined by her, namely,
Charansingh did not produce on record anything to show that he was
employee of State Government. He also did not bring contract of
maintenance with deceased. During the examination-in-chief, he
produced two bills with list at Exhibit 40. Trial Court accepted that
bills as Exhibit 41 and 42. However, on those bills, number of cheque
by which same were cleared was not mentioned. He has stated that
his establishment used to pay about Rs. 2,000/- in a year to deceased.
It is to be noted that he was having establishment in Oria District,
Chattisgarh State. Deceased was staying at Nagpur.
9. Motor Accident Claims Tribunal has looked into this
evidence and thereafter found that amount of Rs. 3,000/- could have
been safely accepted as monthly income of deceased. It is to be noted
that the appellants did not bring on record any authentic document to
5 jg.fa910.08.odt
point out the business as mechanic of deceased. This figure cannot be,
therefore, stated to be erroneous or perverse. Contention that income
should have been presumed to be Rs. 6,000/- to 8,000/- is erroneous
because considering number of dependents in present facts, such an
inference cannot be drawn.
10. However, as number of dependents upon deceased
was five, one fourth of his monthly income needed deduction for his
personal expenditure. As he was 40 years old, use of multiplier of 15
is not in dispute before me. Next submission is to hike this income by
50% towards loss of future prospects. As deceased was 40 years old,
the loss of future prospects needs to be worked out at 30%. The
compensation amount thus works out to Rs. 5,37,500/-.
11. There are three minor daughters as claimants before
the Court and each of them is, therefore, entitled to amount of
Rs. 1,00,000/- towards loss of love, care and affection. Widow is
entitled to amount of Rs. 1,00,000/- towards loss of consortium. In
addition, family is entitled to funeral expenses of Rs. 25,000/-. So
calculated amount works out to Rs. 9,51,500/-. Thus, appellants
before this Court are entitled to compensation of Rs. 9,51,500/-. The
points framed supra are answered accordingly. On this amount, they
6 jg.fa910.08.odt
are entitled to grant of interest at 9% from the date of filing of petition
till its realization.
12. The appellants have paid Court Fees on claim of
Rs. 4,00,000/- only, hence, they are given time of two months to pay
deficit Court Fees.
13. Respondents to work out balance amount payable to
appellants after deducting amount already received by them within
next four months with interest stipulated supra. The balance amount
shall be paid to them immediately thereafter.
The appeal is thus partly allowed and disposed of.
No costs.
JUDGE
wasnik
