Bombay High Court
Noor Jaha Abdul Rahman And 6 Ors vs The New India Insurance Co Ltd Thr ... on 16 November, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 684 of 2006
Appellants : 1. Noor Jaha wd/o Abdul Rahman, aged about
44 years, Occ: Household work
2. Nazhat Parveen d/o Abdul Rahman, aged about
26 years, Occ: household
3. Israt Parveen d/o Abdul Rahman, aged about
24 years, Occ: Household work
4. Abdul Ansar s/o Abdul Rahman, aged about
20 years, Occ: Nil
5. Abdul Azhar s/o Abdul Rahman, aged about
18 years, Occ: nil
6. Farhat Parveen d/o Abdul Rahman, aged about
16 years, Occ: Nil
7. Abdul Zafar s/o Abdul Rahman, aged about
14 years, Occ: nil
Nos. 5 to 7 are minors, through natural guardian
mother Smt Noorjaha wd/o Abdul Rahman,
All residents of Balapur, Dist. Akola
Versus
Respondents: 1) The New India Insurance Co. Ltd.,
through Divisional Manager, Rayat Haveli
Building, Old Cotton Market, Akola
2) S. Ram Krishnan, adult, Occ: Tipper owner,
resident of Milind Nagar, Buldhana
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3) The Maharashtra State Road Transport
Corporation, through Divisional Controller,
Buldhana
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Shri C. A. Joshi, Advocate for appellant
None appears for respondents
Coram : S. B. Shukre, J
Dated : 16th November 2017
Oral Judgment
1. This appeal challenges legality and correctness of the
judgment and order rendered in MCAP No. 95 of 2004 by the Member,
Motor Accident Claims Tribunal, Akola on the ground that it grants less
compensation to the appellants.
2. The appellants, widow and children of deceased Abdul
Rahman, contended that the deceased was sole bread winner for the
family and he lost his life in a vehicular accident which occurred on
20.1.2004 at about 07.30 pm on road near Sultanpur. At that time,
deceased Abdul Rahman was returning from Dusarbid by ST bus
belonging to respondent no. 3. When the bus came near village
Sultanpur, one tipper bearing registration No. MH-28-B-5032 came from
the opposite direction and dashed head-on against the bus. Drivers of
both the vehicles died instantaneously in the accident. Deceased Abdul
Rahman also sustained severe injuries and died on the spot. He was at
that time 48 years old. He was a businessman who used to sell various
articles liking fishing nets, gum, honey etc. in weekly markets situated at
the places like Dongaon, Janefal, Disarbid, Sultanpur, Lonar in Mehkar
tahsil. His family comprising eight members including deceased Abdul
Rahman was entirely dependent upon him. Therefore, they filed claim
petition under Section 166 of the Motor Vehicles Act claiming
compensation from respondents no. 1 to 3 who were respectively insurer
of tipper truck, owner of tipper truck and owner of ST bus involved in the
accident.
3. The claim petition was resisted by respondents no. 1 and 3
who filed their separate Written Statements. They put the blame for the
accident on driver of the other vehicle. The owner of the tipper truck
(respondent no. 2) was proceeded ex parte.
4. On merits, the Tribunl found that the accident occurred due
to rash and negligent driving of tipper truck in driving the truck and,
therefore, it fastened liability to pay compensation on respondents no. 1
and 2 as seen from paragraph 13 of the judgment (though wrongly
written in operative portion of the judgment as respondents no. 1 to 3
jointly and severally). The Tribunal granted compensation of Rs.
3,21,500/- together with interest @ 6% per annum from the date of
petition till realization.
5. The appellants feel that such grant of compensation is
inadequate and, therefore, they are before this Court in the present
appeal.
6. I have heard Shri C. A. Joshi, learned counsel for the
appellants. I have gone through record of the case including the
impugned judgment and order. None appears for the respondents though
duly served.
7. The only point that arises for my determination is:
Whether the compensation awarded by the Tribunal
is just and proper ?
8. This appeal has been filed only on the ground of inadequate
compensation and, therefore, there is no reason for me to go into the
findings recorded by the Tribunal regarding the rashness and negligence
which went behind occurrence of the accident and liability to pay the
compensation, which has been primarily fastened upon respondents no 1
and 2 jointly and severally. Respondent no. 3, as can be seen from the
reasons contained in the judgmentm, has been exoenerated of the liability
to pay any compensation to the appellants.
9. It appears that no appeal against the findings so recorded by
the Tribunal, has been preferred by the respondents.
10. The Tribunal has held on the basis of evidence brought on
record by the claimants that the monthly income of the deceased Abdul
Rahman was Rs. 3000/- per month and I do not see any illegality in
making such a determination by the Tribunal. So, this amount would
have to be taken as starting point for computation of compensation
payable in a just and reasonable manner to the appellants. The evidence
prima facie shows that at the time of accident deceased was 48 years. So,
as per the judgment of Hon'ble Supreme Court in the case of Sarla
Verma (Smt) & ors v. Delhi Transport Corporation & anr reported in
(2009) 6 SCC 121, the appropriate multiplier would be "13". Future
prospects now settled by the Hon'ble Supreme Court in National
Insurance Company Limited v. Pranay Sethi & ors delivered in Special
Leave Petition (Civil) No. 25590 of 2014 on 31.10.2017 would also have
to be taken into consideration and this would be at 25% of the annual
income of the deceased because of the fact that the deceased was in the
age group of 40-50 years and fell in the category of "self-employed"
person. About the deduction that must be made on account of personal
expenses, I am of the view that learned counsel for the appellant is right
when he relies upon the ratio laid down by Hon'ble Apex Court in New
India Assurance Company Limited v. Gopali & ors reported in (2012)
12 SCC 198 wherein the income of the deceased was Rs. 3000/- per
month and his family comprised six persons and the Hon'ble Supreme
Court found that to support such a large family in the year 1992, the
deceased would not have been in a position to spend more than 1/10th of
his total income upon himself. The Hon'ble Supreme Court also observed
that where the family of deceased consists of five persons or more and
deceased has income of Rs. 3000-5000, it would be virtually impossible
for him to spend more than 1/10th of his total income upon himself.So,
1/10th of the total income of the deceased would have to be deducted on
account of his personal expenses. Added to this, the compensation would
have to be granted under non-pecuniary heads like loss of estate, loss of
consortium and funeral expenses which would be Rs. 15,000/-; Rs.
40,000/- and Rs. 15,000/- as per the law settled by Hon'ble Apex Court
in the case of Pranay Sethi (supra). Thus calculated, the total
compensation payable to the appellants would be as under :
(a) Monthly income of the deceased including
future prospects at 25% (Rs. 3000 + 750) .. Rs. 3,750/-
(b) Annual income (Rs. 3750 x 12) .. Rs. 45,000/-
(c) Deduct 10% of total income on account
of personal expenses .. Rs. 4,500/-
(d) Total loss of annual dependency .. Rs. 40,500/-
(e) Amount of compensation by applying
multiplier "13" .. Rs. 5,26,500/-
(f) Loss of consortium to widow
(appellant no. 1) .. Rs. 40,000/-
(g) Loss of estate .. Rs. 15,000/-
(h) Funeral expenses .. Rs. 15,000/-
Total compensation payable .. Rs. 5,96,500/-
Point framed is answered accordingly.
11. In the result, the appellants are entitled to compensation of
Rs. 5,96,500/- together with interest @ 6% per annum from the date of
petition till realization. This amount shall be payable jointly and severally
by respondents no. 1 and 2 to the appellants. The impugned judgment
and order stand modified in the above terms. No costs.
S. B. SHUKRE, J
joshi
