Bombay High Court
Smt. Sheela Wd/O Pralhadrao ... vs Swapnil Prabhakar Thakre And ... on 3 November, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.1210 OF 2016
1. Smt. Sheela wd/o. Pralhadrao Gotefode,
Aged 43 years,
Occupation : Household work.
2. Chi. Suraj Pralhadrao Gotefode,
Aged about 18 years,
Occupation : Education.
3. Chi. Harshal Pralhadrao Gotefode,
Aged about 12 years.
Occupation : Education.
Appellants Nos.2 and 3 are minor,
hence they are filing this appeal
through her natural guardian mother
i.e. Appellant No.1.
4. Ku. Shrutika d/o. Pralhadrao Gotefode,
Aged about 18 years,
Occupation : Education.
All R/o. Near Hanuman Mandir,
Saturna Nagar, Badnera Road,
Amravti. : APPELLANTS
...VERSUS...
1. Swapnil Prabhakar Thakre,
Aged adult, R/o. Mangrul Dastagir,
Tq. Dhamangaon Railway,
Distt. Amravati,
Divisional Office, Above State
Bank of Hyderabad, Badnera Road,
Amravati, Tq. And Distt. Amravati.
(Driver-cum-owner of
motorcycle No.MH-27-AL-5901).
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1. Swapnil Prabhakar Thakre,
R/o. C/o. V.N. Kadu, 273,
New Vivekanand Colony,
Near Ganpati Mandir,
Rukhmini Nagar, Amravti,
District Amravati-444 606.
2. I.C.I.C.I. Lombard General Insurance
Co. Ltd., Through its Legal Manager,
Office at Zenith House,
Keshaorao Khade Marg,
Opposite Race Course,
Mahalaxmi, Mumbai.
(Insurer of motorcycle
No.MH-27-AL-5901) : NON-APPLICANTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Pankaj Navlani, Advocate for the Appellants
None for Respondent No.1.
Shri R.D. Bhuibhar, Advocate for the Respondent No.2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
rd
DATE : 3
NOVEMBER, 2017.
ORAL JUDGMENT :
1. Heard
2. Admit. Heard finally in terms of the notice issued by this
Court on 7th December, 2016.
3. This is an appeal preferred against the judgment and order
dated 29.7.2016, rendered in Motor Accident Claim Petition
No.404/2011, by the Member, Motor Accident Claims Tribunal,
Amravati.
4. By the impugned judgment and order, the Motor Accident
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Claims Tribunal, Amravati has partly allowed the petition filed under
Section 166 of the Motor Vehicles Act by the appellants, original
claimants, directing the respondent Nos.1 and 2, the driver-cum-owner of
the offending vehicle and insurer of the offending vehicle, to jointly and
severally pay the amount of Rs.5,36,000/- together with interest at the
rate of 6% p.a. from the date of petition till realization to the appellants.
5. The claim petition was filed by the appellant, who sought
compensation for the loss they suffered on account of untimely death of
deceased Pralhad in a road accident involving motorcycle bearing
registration No.MH-27-AL-5901. The accident occurred in between
10.15 p.m. and 10.30 p.m. of 21.8.2011 on a road crossing at Nawathe
Square, Badnera-Amravati Road, Amravati. The deceased was then
crossing the road and the offending motorcycle being rashly and
negligently driven by the respondent No.1 gave a violent dash to the
deceased. As a result, the deceased died instantaneously, at the spot
itself. At that time, deceased was 49 years of age and left behind him his
widow and children, who are the appellants in the present case. He was
earning some income as contended by the appellants. The Tribunal
found that since the accident occurred only due to rash and negligent
driving of the offending vehicle, the driver-cum-owner and insurer of the
offending vehicle both were liable to pay compensation to the appellants
and accordingly the impugned judgment and order were passed.
6. Learned counsel for the appellants submits that while
computing the compensation payable to the appellants, the Tribunal did
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not take into consideration future prospects and also wrongly considered
compensation payable to the appellants under non-pecuniary head. He
submits that now the law in this regard has been settled by the
Constitution Bench of the Hon'ble Apex Court in its judgment National
Insurance Company Limited vs. Pranay Sethi and others, delivered in
Special Leave Petition (Civil) No.25590/2014, decided on 31st October,
2017.
7. Nobody appears on behalf of respondent No.1 though duly
served for final disposal.
8. Shri R.D. Bhuibhar, learned counsel is present on behalf of
respondent No.2, the insurer of the offending vehicle. He submits that
the issue involved in this case would have to be decided by following the
law laid down by the Hon'ble Apex Court in the aforestated case of
Pranay Sethi and others .
9. In view of rival submissions, the only point which arises for
my determination is :
Whether the compensation awarded by the Tribunal
is just and proper ?
10. In the case of National Insurance Company Limited vs. Pranay
Sethi and others, the Hon'ble Apex Court has now settled the law in terms
that while determining the income of the deceased, who was self
employed on a fixed salary and in the age group of 42 to 50 years, an
addition of 25% to his annual average income must be made on account
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of future prospects that the multiplicand shall be determined by making
deductions for personal and living expenses by following the dictum of
Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and
another, reported in (2009) 6 SCC 121, that the selection of the
multiplier would be on the basis of age of the deceased, that while
selecting the multiplier, Sarla Verma (supra), be followed and that
compensation at the rate of Rs.15,000/-, Rs.40,000/- and Rs.15,000/-
under only three non-pecuniary heads of loss of estate, loss of consortium
and funeral expenses respectively shall be granted, with the addition of
10% for every 3 years after the date of judgment.
11. In the present case, there is no dispute that the Tribunal has
not added anything on account of future prospects to the income of the
deceased determined by it. There is also no dispute that the Tribunal
granted compensation under non-pecuniary heads of loss of estate, loss
of consortium and funeral expenses at different rates. Therefore, this
Court would have to make necessary corrections by following the law of
the Apex Court in the case of Pranay Sethi and others (supra).
12. The Tribunal has determined monthly income of the
deceased by approximation at Rs.4,500/-, considering the fact that he
was running a business of selling of egg omlette on the street. I do not
think that there is any error committed by the Tribunal in making such a
determination. Therefore, monthly income of Rs.4,500/- could be safely
taken to be the income the deceased earned just before his death. This
would make his annual income to be at Rs.54,000/-. The deceased was
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of the age of 49 years at the time of death and, therefore, as per Pranay
Sethi and others (supra), 25% of the future prospect would have to be
added to his annual income and 1/4 th amount would have to be deducted
from his total income on account of his personal and living expenses as
per the case of Sarla Verma (supra). Appropriate multiplier in the instant
case, as per the case of Sarla Verma (supra) would be '13'. In addition to
the amount so arrived at, the additional compensation under the heads
of loss of estate (Rs.15,000/-), loss of consortium (Rs.40,000/-), and
funeral expenses (Rs.15,000/-) would have to be granted. Thus,
calculated, the total compensation payable to the appellant would be as
under :
(A) Annual Income Rs.54,000/-
(+) 25% of future prospects Rs.13,500/-
-----------------
Rs.67,500/-
(-) 1/4th amount on account of Rs.16,875/-
personal expenses to calculate
annual loss of dependency or
multiplicand. -----------------
Rs.50,625/-
Appropriate multiplier would '13' X 13
to calculate total loss of dependency.
------------------
Rs.6,58,125/-
=======
(B) Total loss of dependency
+ Additional compensation under
non-pecuniary heads such as
loss of estate (Rs.15,000),
+ loss of consortium (Rs.40,000)
+ funeral expenses (Rs.15,000) Rs.70,000/-
------------------
Total Compensation [(A)+ (B)] Rs.7,28,125/-
=======
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13. Thus, I find, the total compensation payable to the appellant
would be of Rs.7,28,125/- and it shall carry interest at the rate of
6% p.a. from the date of petition till realization. This compensation
amount shall be payable to the appellants by the respondent Nos.1 and 2
jointly and severally and shall be inclusive of the amount of Rs.50,000/-
towards no fault liability. Out of the amount of compensation,
Rs.1,00,000/- each shall be invested in a fixed deposit account for a
period of five years, in the name of appellant Nos.2,3 and 4 each with
any nationalized bank and remaining amount be paid by cheque to the
appellant No.1.
14. The appeal is accordingly allowed and the impugned
judgment and order stand modified in the above terms.
15. Court fee on additional compensation be paid within four
weeks, if not paid already.
16. Parties to bear their own costs.
JUDGE
okMksns
