Smt. Jamunabai Wd/O Shivlal ... vs Shri Bhagchand S/O Ramchand Koche ... on 6 November, 2017
Bench: S.B. Shukre
FA 445/06 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL N
O
.
/20
1. Smt. Jamunabai Wd/o Shivlal
Bhusum Korku, aged about 35
Years, Occ: Labour.
2. Sau. Kami W/o Kalu Bhusum Korku,
Aged about 65 Years, Occ: Labour.
Both Nos.1 & 2 R/o Kalvit,
Post- Malhara, Tah. Achalpur,
Dist. Amravati. APP
ELL
ANTS
.....VERSUS.....
1. Bhagchand S/o Ramchand Koche,
Aged Adult, Occ: Driver,
R/o Khanapur, Paratwada,
Tah. Achalpur, Dist. Amravati.
2. Sheikh Sadique S/o Sheikh Muneer,
Aged Adult, Occ: Motor Truck Operator,
R/o Naik Plot, Paratwada,
Tah. Achalpur, Dist. Amravati.
3. National Insurance Company Ltd.,
Through its Divisional Manager,
Division Office No.1, 1st Floor,
Samra Complex, Jaistambh Chowk,
Amravati Tah. & Dist. Amravati.
4. Ajabrao S/o Zolaram Amzare,
Aged Adult, Occ: Tractor Driver,
R/o Chincholi Purna, Tah. Achalpur,
Dist. Amravati.
FA 445/06 2 Judgment
5. Rushikesh S/o Gajanan Bul,
Aged Adult, Occ: Agriculture &
Supplier of Building Material,
R/o Navjeevan Colony,
University Road, Amravati.
6. New India Assurance Company Ltd.,
Through its Divisional Manager,
Division Office at Walcut Compound,
Amravati Tah. & Dist. Amravati.
7. The Oriental Insurance Company Ltd.,
Through its Divisional Manager,
Division Office at Rajapeth, Badnera
Road, Amravati Tah. & Dist. Amravati. RESPONDE NT
S
Shri Parag Kadu, Counsel for the appellants.
Shri N.D. Dubey, A.G.P. for the respondent Nos.1 & 2.
Smt. Anita Mategaonkar (Singh), Counsel for the respondent No.6.
CORAM : S.
B. SHUKRE, J
.
DATE : 06 TH NOVEMBER , 2017 .
ORAL JUDGMENT
This appeal is preferred for seeking more compensation
than what has been granted by the tribunal under its impugned
judgment and order.
FA 445/06 3 Judgment
2. The appellant Nos.1 and 2 are the widow and mother of
deceased Shivlal Korku. They filed a petition under Section 166 of
the Motor Vehicles Act ('M.V. Act' for short) claiming compensation
for the untimely death of Shivlal in an accident involving a truck on
one hand and tractor and trolley on the other hand. The accident
occurred on 09.11.1996 at about 6 p.m. on Paratwada road. At that
time, deceased Shivlal was travelling by a truck bearing registration
No.MPM-3624 as a collie. The truck was loaded with the sand
excavated from river Talni. When the truck entered village Jawardi
on Paratwada road, it suddenly collided head on with a tractor and
trolley coming from the opposite direction. The tractor and trolley
had the registration No.MH-27/A-8616 and MH-27/C-8555. The
offending truck was driven and owned by the respondent Nos.1 and
2 and insured with respondent No.3. The offending truck and
trolley were driven and owned by respondent Nos.4 and 5 and
insured with the respondent Nos.6 and 7, respectively. The impact
of the accident between two vehicles was very severe, particularly
for those, who were travelling as collies on the offending truck.
Deceased Shivlal came under the heap of the sand, which tumbled
over after the accident and he died instantaneously.
FA 445/06 4 Judgment
3. The claim petition was contested by the respondent Nos.
1, 2, 3, 4, 5 and 7. However, on merits of the case, the tribunal
found that the accident having taken place due to rash and
negligent driving of both the vehicles, the drivers, owners and
insurers of both the vehicles were respectively liable for payment of
compensation to the appellants. Accordingly, apportioning liability
on 50% basis between these two vehicles, the tribunal granted
compensation of Rs.1,22,700/- together with interest at the rate of
9% per annum inclusive of the amount of no fault liability to the
appellants by its judgment and order dated 23.12.2005. Not being
satisfied with the same, the appellants, who are the original
claimants, are before this Court in the present appeal.
4. I have heard Shri Kadu, learned counsel for the
appellants. Nobody appears on behalf of the respondent Nos.1, 2, 4,
5, 6 and 7. I have heard Mrs. Deshpande, learned counsel for the
respondent No.3. I have gone through the record of the case
including the impugned judgment and order. Now, the only point
which arises for my determination, is;
"Whether the compensation granted by the claims tribunal
is just and proper ?"
FA 445/06 5 Judgment
5. I must make it clear here that the findings recorded by
the claims tribunal as regards the fault liability and age of the
deceased have not been challenged by any of the respondents and
they have attained finality. The tribunal has found that for this
accident, both the drivers of the offending truck as well as offending
tractor and trolley were equally responsible and that would mean
that the liability to pay compensation to the dependents of the
deceased would have to be shared equally between the driver,
owner and insurer of the offending truck on the one hand and
driver, owner and insurers of the offending tractor and trolley on
the other hand, on 50% basis each. The age of the deceased Shivlal
has been found by the tribunal on the basis of the post mortem
report to be at 23 at the time of the accident and rightly so.
6. Shri Kadu, learned counsel for the appellants submits
that the compensation granted in the present case is quite
inadequate, because there has been a serious error committed by the
tribunal in determination of the income of the deceased. However,
this is not agreed to the learned counsel for the respondent No.3,
who submits that the determination made by the tribunal is correct,
rather it is just and proper in the facts and circumstances of this
FA 445/06 6 Judgment
case. She submits that the accident was of the year 1996, at which
time, the daily wage rates were not more than Rs.40/- per day and
that, considering the admission given by the P.W.1 Jamunabai that
the deceased was working for only 18 to 20 days in a month, the
monthly income of the deceased could not have been more than Rs.
500/-. She further submits that if at all any enhancement in
compensation is to be made, the interest should not be granted on it
at the rate of 9% per annum and it should be somewhere in the
range of 6% to 7% per annum.
7. Upon consideration of the evidence available on record
and examining the reasons recorded by the tribunal in the backdrop
of the established facts, I am of the view that there is force in the
argument of learned counsel for the appellants and no merit in the
submissions of learned counsel for the respondent No.3-insurer of
the offending truck.
8. The appellant No.1 examined herself as a witness and in
addition to herself, she also examined one Madhu Babu Bhusum as
P.W.2, who was the other coolie present on the truck at the time of
the accident as her witness. Their evidence, particularly the
FA 445/06 7 Judgment
admissions given in the cross-examination taken on behalf of
respondent Nos.6 and 7, show that the deceased Shivlal used to
bring home amount of Rs.600/- to Rs.700/- per week. This
evidence also shows that the deceased Shivlal was earning not on
the basis of day's work, but on the basis of the work that he used to
perform per trip of the transportation of sand from river Talni. P.W.
2 Madhu Babu, in particular, has stated that the deceased Shivlal
used to earn Rs.25/- for every trip of the offending truck and that
there used to be average five trips that used to be made every day
by the offending truck. There is nothing in the cross-examination of
either of these witnesses to discard such evidence or to hold that
their evidence does not probabilize the case of the appellants that
the deceased used to earn on per trip basis.
9. This evidence would show that the deceased was getting
Rs.600/- to Rs.700/-, but I think this has to be taken with a pinch of
salt having regard to the fact that admittedly, deceased Shivlal used
to work only for 18 to 20 days every month. It is also not a case
that every day, he would have completed five trips of his work. So,
the average trips that he completed every day could be taken to be
at four per day. Thus, calculated, he would have earned about Rs.
FA 445/06 8 Judgment
400/- per week. Thus, I am of the view that the income of the
deceased can be safely taken to be of Rs.400/- per week and so, his
monthly income would be of Rs.1,600/-.
10. For determination of the income of self-employed
persons like the deceased Shivlal in the present case, future
prospects are also required to be taken into consideration. This is
the law now settled in the case of National Insurance Company
Vs. Pranay Sethi and others, S.L.P. (Civil) No.25590/2014,
st
decided on 31
October, 2017 decided by Constitution Bench of
the Hon'ble Apex Court. Since the deceased was aged about 23
years at the time of the accident and in the category of self-
employed persons, following the law of the Hon'ble Apex Court in
the case of 'Pranay Sethi', I am of the view that 40% of the monthly
income would have to be added under the head of future prospects.
The appropriate multiplier in the present case, where age of the
deceased was of 23 years, would be of 18 as per the case of Sarla
Verma & Others Vs. Delhi Transport Corporation & Anr.,
(2009)6 Supreme Court Cases, 121. From this amount, 1/4th
amount would have to be deducted on account of personal
expenditure of deceased considering the fact that originally there
FA 445/06 9 Judgment
were four claimants, out of which, two claimants a minor son and
father of the deceased expired during pendency of the claim
petition. In addition to this amount, compensation under functional
heads, as per Pranay Sethi and others of loss of consortium for
widow, loss of estate, funeral expenses and cost of the litigation
have to be added. Thus, calculated the total compensation payable
to the appellants should be as under;
Sr. Heads Calculation
No.
1. Annual Income (Rs.1600 x12) Rs. 19,200/-
2. 40% of (1) above to be added as Rs. 19,200 +
future prospects. Rs. 7,680
______________
Rs. 26,880/-
3. 1/4th of (2) deducted as personal Rs. 26,880 -
expenses of the deceased. Rs. 6,720
______________
Rs. 20,160/-
4. Compensation after multiplier of Rs. 20,160 x 18
18 is applied (age 23 years of the
deceased) = Rs.3,62,800/-
5. Loss of consortium for widow Rs.40,000/-
6. Loss of estate Rs.15,000/-
7. Funeral expenses Rs.15,000/-
8. Cost of litigation Rs.15,000/-
FA 445/06 10 Judgment
Total Compensation ... Rs.4,47,880/-
Less: Compensation awarded Rs.1,72,700/-
________________
Total enhancement Rs.3,75,180/-
11. In view of above, I am of the view that the amount of
Rs.4,47,850/- would be the amount of compensation payable to the
appellants in just and proper manner, which is inclusive of what is
already granted by the Tribunal.
This amount shall be inclusive of the amount received on
account of no fault liability and shall carry interest at the rate of 9%
per annum from the date of petition till realisation.
Out of this amount, 50% of the amount shall be paid by
the respondent Nos.1 and 2, jointly and severally and remaining
50% amount shall be paid by the respondent Nos.4, 5, 6 and 7
jointly and severally.
The appeal deserves to be partly allowed in these terms.
Therefore, the point is answered accordingly.
Appeal is partly allowed.
The impugned judgment and order stand modified in the
above terms.
FA 445/06 11 Judgment
Parties to bear their own costs.
Appeal stands disposed of.
JUDGE
SHRIPAD
