Bombay High Court
Smt. Jayashri Wd/O Sanjay Pode And ... vs Sudhir S/O Ramdas Totare And 2 ... on 19 September, 2017
Bench: S.B. Shukre
1 FA802.17(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.802 of 2017
1. Smt. Jayashri wd/o Sanjay Pode,
Aged about 39 years, Occ. Household.
2. Sarang s/o Sanjay Pode,
Aged about18 years, Occ. Student.
3. Nanaji s/o Kashinath Pode,
Aged about 76 years, Occ-Retired.
4. Sau. Nirmala w/o Nanaji Pode,
Aged about 70 years, Occ. Household. ........APPELLANTS
All R/o Nanaji Nagar, Nagpur Road,
Chandrapur, Tahsil and District Chandrapur.
--Versus ---
1. Sudhir s/o Ramdas Totare,
Aged-Major, Occ. Business.
R/o. Chakan, Ekta Nagar, Tah. Khed,
District Pune.
2. ICICI Lombard General Insurance Co. Ltd.
Through its Manager,
Akbar Villa, Nagpur Road, Near Hotel Siddharth,
Opp. Police Headquarters,
Chandrapur-04
3. Radheshyam s/o Maroti Ubale (Deleted) .. RESPONDENTS
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Shri Rohit Joshi, Advocate for Appellants.
Shri R.D.Bhuibhar, Advocate for R.No.2.
None appears for respondent no.1 though duly served.
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2 FA802.17(J)
CORAM : S.B.SHUKRE,J.
DATED : 19.09.2017
ORAL JUDGMENT
This appeal is preferred against the finding recorded by the trial
Court that from the amount of income earned by deceased immediately
before his death, deduction made on account of payment of Insurance
Premium to the extent of Rs.1,00,000/- is permissible, recorded by the
Member, Motor Accident Claims Tribunal, Chandrapur, in the judgment and
order dated 03.03.2017 rendered in M.A.C.P.No.49/2013.
2. I have heard Shri Rohit Joshi, learned counsel for the appellants
and Shri R.D.Bhuibhar, learned counsel for respondent no.2. None appears
for respondent no.1 though duly served with the notice on merits. I have
gone thourgh the impugned award and the set of documents filed by the
appellants vide Pursis dated 14.09.2017. The only point that arises for my
determination is :
whether the compensation awarded by the Tribunal is just and
proper in view of the impugned finding ?
3. According to Shri Rohit Joshi, learned counsel for the
3 FA802.17(J)
appellants, compensation awarded by the tribunal is not just and proper as
the basis of the annual income considered by the tribunal is erroneous. On
the other hand, Shri Bhuibhar, learned counsel appearing for respondent
no.2 submits that there is a justification properly given in the impugned
award in that regard and, therefore, no interference in the impugned award
is warranted.
4. It is seen from the impugned award that while determining the
income of the deceased, tribunal deducted an amount of Rs.1,00,000/- from
the gross amount which not permissible as per the law stated by the Hon'ble
Apex Court in the case of Manaswi Jain vs. Delhi Transport Corporation,
2014 ACYD 550 on which reliance has been placed by the tribunal. The
annual income tax returns filed by the deceased for the year 2011-12,
which was the last one before his death, his gross total income was shown
as Rs.3,15,919/- and from this income, an amount of Rs.1,00,000/- was
deducted under Section 80 C of the Income Tax Act. The tribunal
considered this deduction as a statutory deduction on account of the
liability of the deceased, albeit erroneously. In fact, this deduction was not
on account of liability of the deceased, but only his savings. The tribunal
4 FA802.17(J)
has erred in deducting this amount from the gross total income of the
deceased. Therefore, I find that there is a great substance in the argument
of the learned counsel for the appellants and no merit in the argument of
the learned counsel for the respondent no.2 that this deduction of
Rs.1,00,000/- was, in fact, proper in law.
5. In view of above, I am of the opinion that the annual income of
the deceased was of Rs.3,15,919/- and from this income, the income tax
paid by deceased Rs.5,760/- at the most was deductible and if it is
deducted, the annual income of the deceased immediately before his death
would come Rs.3,10,159/-. So, it is this income which would have to be
taken as a starting point for making further calculations in the matter in
order to arrive at the amount of compensation payable to the appellants in
a just and fair manner. Doing so, the final amount of compensation payable
to the appellant could be determined in the following manner :
1. Annual Income Rs. 3,10,160 (-) 1/4th deduction.
2. Towards self consumption Rs.77,540/-
3. Loss of Dependency Rs. 2,32,620/-
4. Rs.2,32,620 x 13(Multiplier) = Rs.30,24,060/-
5. 30% component towards Future Prospects Rs.9,07,218/-
-------------------
6. Total Loss of dependency.
(A)
Rs.39,31,278/-
========
5 FA802.17(J)
6. In addition to the compensation determined under the head of
loss of dependency, the appellants would also be entitled to receive
compensation under non-pecuniary heads. The tribunal has determined the
compensation payable to the appellants under this head, which I find to be
just and proper, warranting no interference with the same. The
compensation payable under all these non pecuniary heads would be in
addition to Rs.39,31,278/- found to be payable under the head of loss of
dependency. The tribunal has also granted interest @ 9% per annum from
the date of application till realization on the final amount of compensation.
The compensation under the non-pecuniary heads, as rightly determined by
the tribunal, would be as under :
(B) Non-pecuniary heads :
1. Loss of consortium to the claimant no.1 Rs. 50,000/-
2. Loss of love to claimant no.2. Rs. 50,000/-
3. Loss of love and affection to claimants Rs. 60,000/-
Nos. 3 and 4 @ Rs.30,000/-
4. Funeral and Transportation Expenses. Rs. 25,000/-
5. Loss of estate to appellants 2,3 and 4 Rs. 75,000/-
@ Rs.25,000/- ----------------
Total B ... Rs.2,60,000/-
=======
TOTAL AMOUNT OF COMPENSATION UNDER
ALL THE HEADS. (A + B ) = Rs.41,91,278/-
6 FA802.17(J)
7. The total amount of compensation, as calculated above, comes to
Rs.41,91,278/- and it shall be payable to the appellants jointly and severally
by respondent nos. 1 and 2 with interest @ 9% per annum from the date of
petition till actual realization. The point is answered accordingly. The
impugned judgment and order stand modified in the above terms. The
appeal stands allowed in the above terms. The parties to bear their own
costs.
The appellants to pay Court Fees on the enhanced amount of
compensation within one month from the date of order.
(S.B.SHUKRE, J)
Andurkar
