Smt. Kunta Wd/O Ganpatrao ... vs Anil Shamrao Jambhulkar & Ors
2017 Latest Caselaw 8810 Bom

        J-fa657.06.odt                                                                                                     1/7 


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.657 OF 2006


        1.    Smt. Kunta wd/o. Ganpatrao Waghmare,
               Aged about 48 years,
               Occupation : Household.

        2.    Pravin s/o. Ganpatrao Waghmare,
               Aged about 28 years,
               Occupation : Doctor.

        3.    Ku. Mamta d/o. Ganpatrao Waghmare,
               Aged about 25 years.

        4.    Ku. Vaishali Ganpatrao Waghmare,
               Aged about 23 years.

               All R/o. Mangalwari, Umred,
               District Nagpur.                                                      :      APPELLANTS

                           ...VERSUS...

        1.    Anil s/o. Shamrao Jhambulkar,
               R/o. Plot No.143, Omnagar, 
               Nagpur.

        2.    Rambhau s/o. Yadaorao Bhoyar,
               Aged Major, R/o. Ramna Maroti, 
               Nagpur.

        3.    National Insurance Co. Ltd.,
               10, Wardhaman Nagar, 
               Nagpur.                                                               :      RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Smt. Vidya Umale, Advocate for the Appellants.
        Smt. S.P. Deshpande Advocate for the Respondent. 3
        None for Respondent Nos.1 and 2.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-




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                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 17 NOVEMBER, 2017.

ORAL JUDGMENT :

1. This is an appeal preferred against the judgment and order

dated 27th October, 2004, rendered in Motor Accident Claim Petition

No.522/1995 by the Motor Accident Claims Tribunal, Nagpur. By the

impugned judgment and order, the Claims Tribunal did not allow the

petition filed under Section 166 of the Motor Vehicles Act claiming

compensation under the head of loss of dependency and allowed the

petition to the extent it claimed compensation on account of untimely

death of Ganpatrao Waghmare, mental agony and pain resulting

therefrom. The Tribunal was of the opinion that in view of the

admissions given by the claimant's sole witness PW 1 Smt. Kunta

Waghmare it was manifestly clear that there was no loss of dependency

on account of death of Ganpatrao Waghmare and therefore, the Tribunal

did not allow any compensation under this head.

2. Deceased Ganpatrao Waghmare had died in a road accident

resulting from a collision between Tempo Tax bearing registration

No.MH-31/H-3018 and a scooter bearing registration No.MH-31-Q-2202

at about 9.00 a.m. of 2nd August, 1995 at a place situated near village

Umargaon, on Nagpur-Umrer Road. The deceased was riding a scooter

J-fa657.06.odt 3/7

along with his daughter and in this accident, both of them died. The

respondent Nos.1 to 3 were respectively driver, owner and insurer of the

Tempo Trax and respondent Nos.2 and 3 have been made to pay jointly

and severally total compensation of Rs.80,000/- granted by the Tribunal

under the impugned judgment and order. As the appellants are seeking

more compensation, they are before this Court in the present appeal.

3. I have heard learned counsel for the appellant and learned

counsel or the respondent No.3. Nobody appears for respondent Nos.1

and 2 though duly served on merits. I have also gone through the record

of the case including the impugned judgment and order.

4. Now, the only point which arises for my determination is :

Whether the compensation granted by he Tribunal is just and proper ?

5. Learned counsel for the appellants has submitted that it is the

settled law that while computing compensation only three facts need to

be established by the claimants which are; age of the deceased, income of

the deceased and the number of dependents and in the present case all

these facts have been established by the appellant and therefore, the

appellants deserve to be granted compensation by assessing the same on

the anvil of these three established facts. Learned counsel for the

appellants for this submission would like draw support from the case of

Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and

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another, reported in (2009) 6 SCC 121. This has been disagreed to by

learned counsel for respondent No.3 who submits that even though these

three facts are required to be established, what has to be understood is

that, they are to be so established only for assessing the loss of

dependency and when it is seen that there is no loss of dependency,

income of the deceased would lose its relevance.

6. It is held in the case of Sarla Verma (supra) that the

aforestated three factors are necessary for making appropriate

assessment of compensation payable to the claimants or the dependents.

But, it is also held that these facts are necessary for computing the

compensation under the head of loss of dependency. So, establishment

of these facts is necessary only when the Court is granting compensation

under the head of loss of dependency. It would then follow that if facts

of a given case disclose that basically there is no loss of dependency, as

rightly submitted by the learned counsel for the respondent No.3, there

would not be any occasion for the Court to consider income of the

deceased and it would lose all its relevance. This is what has happened

in the present case. There are clear cut admissions given by PW 1 Smt.

Kunta, appellant No.1 and the original claimant No.1 that after the death

of her husband, the licence for running ration shop was transferred to her

name and that she was earning income of Rs.3,000/- per month from the

business of ration shop. It is her case that at the time of death, her

J-fa657.06.odt 5/7

husband was running the fair price shop and earning Rs.3,000/- per

month. Of course, she has also stated that he was earning some

additional amount from out of other businesses that he carried out

privately. According to her, from the same fair price shop, deceased

Ganpatrao used to sell the grains as a private dealer. She submits that

there is a licence issued to this effect, which is at Exh.-36.

7. On going through the licence at Exh.-36 I could not come

across any licence having been issued to deceased Ganpatrao for selling

grains from the fair price shop privately, nor learned counsel for the

appellants could show to me any such licence having been issued to

deceased Ganpatrao. Even if it is presumed, just for the sake of

argument, that such licence was indeed issued to deceased Ganpatrao,

the matter would not come to an end. There would be a further duty

upon the claimants to show that such licence for private sale was

gainfully used by the deceased in the sense that he indeed sold privately

the grains and earned something out of his such business. This could

have been easily shown by the claimants by adducing in evidence such

documents as bill-books, registers etc., if it was a fact indeed, for the

reason that the shop-keepers maintain their stock register and also other

registers showing daily transactions taking place in their shops. They

also maintain bill-books and issue receipts for sell of the food-grains

privately and keep the accounts recording the amounts received after

J-fa657.06.odt 6/7

each of the transactions. Not a single document in this regard has been

tendered in evidence by the claimants. Therefore, the claim of the

appellants made in this regard cannot be accepted. In fact, it has been

rightly rejected by the Tribunal. Besides, the claimants also admit that

they are getting additional income of Rs.30,000/- to Rs.50,000/-

annually from their two and half acres of agricultural land. So, the only

conclusion that could have been made in this case was that the

appellants did not experience any loss of dependency after the

unfortunate departure of deceased Ganpatrao Waghmare from this

world. This is what the Tribunal has held and rightly so.

8. If there is no loss of dependency established by the

appellants, there would not be any further question of taking into

consideration the income of the deceased in order to assess the

compensation payable under the head of loss of dependency. Same is

not due to the appellants and it has been rightly rejected by the Tribunal.

9. Now, the question would be whether the Tribunal ought to

have granted reasonable compensation under the heads of loss of estate,

loss of consortium and funeral expenses, which are non-peculiary head.

Now, the law is settled in this regard by the recent judgment of the

Hon'ble Apex Court in the case of National Insurance Company Limited

vs. Pranay Sethi and others , delivered in Special Leave Petition (Civil)

No.25590/2014 , decided on 31

st October, 2017, according to which,

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for these heads, compensation amount of Rs.15,000/-, Rs.40,000/- and

Rs.15,000/- respectively would be payable to the appellant in the present

case. This is the additional amount which ought to have been paid by

the Tribunal and which now shall be paid by this Court under this order.

Such enhancement will take the total compensation amount to

Rs.1,20,000/-. The point is answered accordingly.

10. The appeal is partly allowed.

11. The respondents are granted total compensation of

Rs.1,20,000/- instead of Rs.80,000/- along with interest at the rate of 9%

p.a. from the date of petition till actual realization.

12. The impugned judgment and order stand modified in the

above terms.

13. Parties to bear their own costs.

14. Appeal is disposed of.

JUDGE okMksns