Ujwala Gopaldas Ramekar And 2 ... vs National Insurance Company ...
2017 Latest Caselaw 7184 Bom

                                              1




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                       NAGPUR BENCH : NAGPUR



First Appeal   No.  664 of 2005 

Appellants             :          1)  Ujwala wd/o Gopal Ramekar, aged about

                                  23 years, Occ: Household work

                                  2) Sau Leelabai w/o Rustamrao Ramekar,

                                  aged about 50 years, Occ: Household work

                                  3) Rustam s/o Balaji Ramekar, aged about 

                                  58 years, Occ: Business

                                  All residents of Warur Jaluka, Tahsil Akot,

                                  District Akola

                                  versus

Respondents            :          1)   National Insurance Company Limited,

Opp. Open Air Theatre, M. G. Road, Akola

2) Leeladhar Gulabchandji Rathi, aged adult,

Occ: Business, resident of Telhara, Tahsil

Akot, District Akola

3) Subhash s/o Dhondu Suratne, aged adult,

Occ: Driver, resident of Popatkheda, Tahsil

Akot, District Akola

Shri Sagar Katkar, Advocate for appellant

Shri Shashikant Borkar, Advocate for respondent no. 1

None appears for respondents no. 2 and 3

Coram : S. B. Shukre, J

Dated : 14th September 2017

Oral Judgment

1. This appeal challenges legality and correctness of the Award

dated 25th August 2003 passed in MACP No. 43 of 2005 by the Member,

Motor Accident Claims Tribunal, Akot. By this Award, learned Tribunal

has granted compensation of Rs. 1,80,900/- inclusive of no fault liability

together with interest @ 9% per annum from the date of petition till

realization to the appellants/original claimants who were respectively

widow, mother and father of deceased Gopal Ramekar.

2. Deceased Gopal lost his precious life at the age of 26 years in

a vehicular accident which occurred on Akot-Akola Road near Wani-

Warula Phata diversion on 23.12.2002 at about 16.20 hours. At that

time, deceased Gopal was driving Bajaj M-80 moped and it was hit by the

rear side of the offending vehicle, a truck bearing registration No. MHV-

9886 approaching from the opposite direction of Bajaj M-80 moped. The

accident occurred because of rash and negligent driving of the offending

truck by its driver. It was contended that at the time of accident, driver

of the offending vehicle tried to overtake a black-yellow taxi and as the

driver of the offending vehicle could not get proper judgment of the

vehicles approaching from the opposite direction, the rear side of the

truck came to be dashed against the approaching vehicle i.e. Bajaj Moped

rode by deceased Gopal. One Prafulla Rathi was riding pillion on this

Bajaj moped. In the accident, deceased Gopal sustained grievous injuries

and died of them on the spot. The pillion rider Rathi, however, escaped

with only few injuries.

3. As the offending vehicle was owned by respondent no. 2,

driven by respondent no. 3 and insured with respondent no. 1, the

appellants filed a claim petition under Section 166 of the Motor Vehicles

Act against these respondents. It was contested by the respondents. On

merits of the case, it was found by the Tribunal that accident occurred

because of the fault of the driver of the offending vehicle having a major

share and also the fault of the rider of the moped i.e. deceased Gopal,

having a minor share. There was no dispute about the offending vehicle

being insured with respondent no. 1. Accordingly, the impugned Award

was passed granting compensation of Rs. 1,80,900/- inclusive of no fault

liability by the Tribunal. Not being satisfied with quantum of

compensation, the claimants are before this Court in the present appeal.

4. I have heard Shri Sagar Katkar, learned counsel for the

appellant and Shri Shashikant Borkar, learned counsel for respondent no.

1. None appears for respondents no. 2 and 3, though duly served. Now,

the only point which arises for my determination is -

Whether the compensation awarded by the Tribunal is

just and proper ?

5. Learned counsel for the appellant submits that the multiplier

"13" selected by the Tribunal is not according to Schedule II and is also

not according to ratio laid down by the Hon'ble Apex Court in Sarla

Verma (Smt) & ors v. Delhi Transport Corporation & anr reported in

(2009) 6 SCC 121. He submits that according to the ratio of the said case,

the appropriate multiplier would be "17" considering the age of 26 years

of deceased Gopal when he died. He also submits relying upon Rajesh &

ors v. Rajbir Singh & ors reported in (2013) 9 SCC 54, further amount

on account of loss of consortium and loss of affection should have been

granted by the Tribunal.

6. Shri Borkar, learned counsel for respondent no. 1 submits

that income of Rs. 32000/- considered by the Tribunal is based on wrong

calculations. He submits that the Tribunal did not take into account the

cost of production involved in the growing and harvesting agricultural

crops. He submits that at least 10% of the total income from the

agricultural produce should have been considered and deducted by the

Tribunal. As regards the multiplier "13" applied and selected by the

Tribunal, learned counsel submits that the same may be chosen according

to the settled position of law. He also submits that no amount can be said

to be due to appellant no. 1 on account of loss of consortium as it is an

admitted fact borne out from record through the evidence of claimant no.

1 that during the pendency of claim petition, she performed marriage

with the brother of deceased Gopal.

7. Sofar as income of Rs. 32000/- per annum taken by the

Tribunal is concerned, I find, there is substance in the submission of

learned counsel for respondent no. 1 in the sense that this income has

been without deducting the cost required to be incurred for producing the

crops. The cost of production by approximation can be taken to be at

10% of the income fetched by the deceased and thus, the annual income

after such deduction, would come to Rs. 28,800/-. 1/3rd amount from

this amount would have to be deducted on account of personal expenses

of deceased Gopal and on such deduction, the total loss of dependency

would come at Rs. 19,200/-. As rightly submitted by learned counsel for

the appellants, the appropriate multiplier as per the decision in Sarla

Verma's case (supra) in the instant case for the age of 26 years of the

deceased would be "17". By applying this multiplier, the total loss of

dependency would come to Rs. 3,26,400/-. At this stage, learned counsel

for respondent no. 1 submits that the evidence on record clearly suggests

that for the major part of the accident, deceased Gopal was at fault and,

therefore, he submits that substantial amount from the amount of Rs.

3,26,400/- must be deducted for the contributory negligence of deceased

Gopal. Learned counsel for the appellants submits that the Tribunal has

already deducted 1/3rd amount on account of contributory negligence of

the deceased and still no appeal has been filed against this finding by

respondent no. 1 and, therefore, such an exercise would not be

permissible in the present appeal.

8. True it is, no appeal has been preferred by respondent no. 1

against the finding of 33% of contributory negligence on the part of

deceased Gopal, but once an appeal like the present one seeking

enhancement of compensation has been filed by the claimants, it would

open the doors for respondent no. 1 to contend that some of the findings

recorded by the Tribunal are erroneous and against the evidence brought

on record. Ultimately, this Court has to grant compensation in such cases

which is just and fair in the eye of law and, therefore, while deciding the

fairness of the compensation, this court would also would have to

consider as to whether or not the evidence available on record on the

point of contributory negligence has been properly appreciated by the

Tribunal. In this view of the matter, I am of the view that the finding

recorded by the Tribunal on the issue of percentage of negligence of

deceased Gopal would have to be re-examined now.

9. The evidence consisting of deposition of PW 3 Prafulla Rathi,

the pillion rider and spot panchanama vide exhibit 34 are relevant in this

regard. The spot panchanama clearly shows that there was a pool of

blood in the centre of the road on the spot of incident and it was this spot

on the road where deceased Gopal breathed his last. This would clearly

show that at the relevant time deceased Gopal must not have been riding

the moped by keeping it on the extreme left side of the road which was

correct side for the rider of this moped, as claimed by the appellant and

that he must have been riding the moped by manoeuvring it through

middle of the road. P.W. 3 in his cross-examination taken on behalf of

respondent no. 1 has admitted that he had seen the offending truck

approaching from the opposite direction from 25-30 feet. This admission

together with what is noted in the spot panchanama would make the case

of respondent no. 1 that deceased Gopal was also at fault equally or

substantially as highly probable. Therefore, the finding recorded by the

Tribunal that the percentage of contributory negligence exhibited by

Gopal was no more than 33% would have to be termed as not based upon

evidence and as such erroneous. Having regard to this evidence, I am of

the view that the fault of deceased Gopal in occurrence of the accident

could be at least equal to the percentage of fault of the driver of the

offending vehicle. Therefore, the liability to pay any compensation would

have to be equally shared between these two tortfeasors, one of them

being the driver of the offending truck.

10. The above discussion would show that from the amount of

Rs. 3,26,400/-, the total loss of dependency determined by this Court, at

least 50% amount would have to be deducted and this would make the

compensation payable to the appellants under the head of loss of

dependency to Rs. 1,63,200/-. It is seen from the impugned Award that

the Tribunal has not given any compensation to the appellants under such

heads as loss of consortium and loss of love and affection. The

compensation to appellant no. 1 under the head of loss of consortium of

course will not be due in this case as she has admitted that during the

pendency of claim petition, she performed marriage with the brother of

her deceased husband. However, the case of the parents i.e. appellants

no. 2 and 23 would stand on different footing. They would be entitled to

receive compensation under the head of loss of love and affection of their

deceased son which would be @ Rs. 1,00,000/- for each of the parents.

Thus, an amount of Rs. 2,00,000/- would have to be added to the amount

of Rs. 1,63,200/- and this would make total compensation payable by the

respondents jointly and severally to the appellants at Rs. 3,63,200/-. On

the enhanced compensation, interest will also have to be awarded and it

will be @ 7% per annum from the date of petition till realization. The

point is answered accordingly.

11. In the result, the appeal is partly allowed. The compensation

of Rs. 3,63,200/- inclusive of no fault liability together with interest on

the enhanced amount of compensation @ 7% per annum from the date of

petition till realization, is hereby granted to the appellants and the same

shall be payable by the respondents jointly and severally. Additional

court fees be paid within one month from the date of order. The

impugned Award stands modified in the above terms. Parties to bear

their own costs.

S. B. SHUKRE, J

joshi