Bombay High Court
Shivkanta Santosh Gaware And Ors vs Maharashtra State Road Transport ... on 9 January, 2018
Bench: M.S. Sonak
(1) 909 FA 4225 OF 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.4225 OF 2017
1. Shivkanta wd/o Santosh Gaware
Age : 29 years, Occu.: Housewife
2. Sumit S/o Santosh Gaware
Age : 7 Years, Occ.: Education,
(under guardianship of real mother-
Shivkanta Wd/o Santosh Gaware)
3. Laxmibai W/o Narayan Gaware
Age : 59 Years, Occ. Housewife
All R/o. Sukli, Tq. Kalamnuri,
Dist.Hingoli. .. Appellants
(Ori. Claimants)
VERSUS
. Maharashtra State Road Transport
Corporation,
Through its Divisional Controller,
R/o. Office at Divisional Workshop,
Nanded, Tq. & Dist. Nanded. ..Respondent
(Ori. Respondent)
...
Advocate for Appellants : Mr.Mahesh V.Ghatge
Advocates for Respondent : Mr.M.K.Goyanka and
Mr.Manoj Shinde
...
::: Uploaded on - 19/01/2018 ::: Downloaded on - 20/01/2018 00:26:24 :::
(2) 909 FA 4225 OF 2017
CORAM : M.S.SONAK, J.
DATE : 9th JANUARY 2018
ORAL JUDGMENT:-
1) Heard learned counsel for the parties. At their
request and with their consent, the appeal itself is
taken for final disposal.
2) This appeal is preferred by the appellant No.1 i.e.
widow, the appellant No.2 minor son and appellant No.3
the mother, who are aged 29 years, 7 years and 59 years
respectively claiming enhanced compensation on account of
demise of Santosh the sole breadwinner, who died in a
motor accident. Accordingly, record and proceedings were
also called for in order to facilitate the disposal of
this appeal at the stage of admission.
3) There is no dispute that Santosh Narayan Gaware died
on 10.5.2012 after S.T. Bus bearing MH-20/D-8967 dashed
against the Motorcycle bearing No.MH-26/Q-6608, which he
(3) 909 FA 4225 OF 2017
was riding with Kishan Kumar as pillion rider. The Motor
Accident Claims Tribunal has determined the compensation
@ Rs.5,43,000/- (inclusive of no fault liability amount).
The Motor Accident Claims Tribunal has also awarded the
claimants interest @ 7.5% p.a. on the compensation amount
from the date of the petition till realization of
compensation amount.
4) Mr.M.V.Ghatge, learned counsel for the appellants
submits that the Motor Accident Claims Tribunal was not
justified in treating the income of Santosh as only
Rs.3,000/- p.m. when there was ample evidence on record
to establish that Santosh was a skilled electrician.
Mr.Ghatge points out that Santosh owned agricultural land
ad-measuring 90 Are and therefore, some compensation was
due towards supervision charges, which the claimants will
be forced to bear consequent upon demise of Santosh.
Mr.Ghatge points out that the Motor Accident Claims
Tribunal in deciding the Claim Petition on behalf of
(4) 909 FA 4225 OF 2017
claimants of pillion rider Kishan Kumar has infact
awarded supervision charges @ Rs.1,500/- p.m. Mr.Ghatge
submits that there was absolutely no reason for unequal
yardstick in so far as present claimants are concerned.
5) Mr.Ghatge submits that the income of Santosh was
required to be taken minimum @ Rs.8,000/- p.m. taking
into consideration that he was skilled as a electrician.
Mr.Ghatge submits that the Motor Accident Claims Tribunal
has failed to make any addition towards future prospects.
Such failure is contrary to law laid down by the Hon'ble
Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi and others [
2017 (13) SCALE 12
].
For these reasons, Mr.Ghatge submits that the
compensation amount awarded by the Motor Accident Claims
Tribunal is required to be enhanced up to Rs.22,00,000/-
or more.
6) Mr.Ghatge hands in a calculation chart, taking
(5) 909 FA 4225 OF 2017
Santosh's income as Rs.8,000/- p.m. and supervisory
charges of Rs.1,500/- p.m. Mr.Ghatge submits that it is
the duty of the Tribunal to determine just compensation
and therefore, just compensation can always be granted by
this Court, even though the claimants in their claim
petition may have claimed only Rs.8,00,000/- by way of
compensation.
7) Learned counsel for the respondent submits that
there is no evidence on record to establish that Santosh
was indeed a electrician or a skilled person. He submits
that no documents like some Diploma from I.T.I., salary
certificate have been produced. The employer has not
been examined. In such circumstances, the learned
counsel submits that the Motor Accident Claims Tribunal
was quite justified in treating the monthly income of
Santosh @ Rs.3,000/- p.m.
8) Learned counsel submits that there is no proper
(6) 909 FA 4225 OF 2017
evidence as regards the nature of land owned by Santosh
and the type of agricultural activity, which was
allegedly carried out therein. In the absence of any
such material, the Motor Accident Claims Tribunal was
quite right in making no award towards supervision
charges.
9) Learned counsel points out that excessive
compensation has been paid towards conventional heads
like loss of love and affection, consortium or funeral
expenses. He submits that such award is entirely
unjustified considering the decision of the Hon'ble
Supreme Court in the case of Pranay Sethi (supra) upon
which reliance has been placed by the appellants
themselves. For all these reasons, the learned counsel
submits that this appeal is liable to be dismissed.
10) Upon perusal of the evidence on record, it is seen
that there is no documentary evidence produced in so far
(7) 909 FA 4225 OF 2017
as income of Santosh is concerned. Appellant No.1 i.e.
Shivkanta has deposed that Santosh was an electrician
employed with Raj Electricals and was earning Rs.8,000/-
p.m. There is evidence that Santosh was having
agricultural land ad-measuring 90 Are, which was being
used for agricultural purpose. In this regard 7/12
extract has also been produced on record. Taking into
consideration this material, although, it will not be
possible to accept the appellants' contention that
Santosh's income should be taken as Rs.8,000/- p.m. and
to that, Rs.1,500/- should be added as supervision
charges, it must be said that determination of Tribunal
is rather conservative.
11) In the facts and circumstances of the present case,
it will be appropriate if the income of Santosh, even
after taking into consideration the aspect of supervisory
charges, is taken as Rs.4,500/- p.m. In such matters, it
is not always possible to produce any documentary
(8) 909 FA 4225 OF 2017
evidence and therefore, some amount of guesswork is
inevitable.
12) Even assuming that Santosh may not have been a
skilled worker, nevertheless, in the facts of the present
case, his income can be taken as Rs.4,500/-, which is
nothing but addition of Rs.1,500/- over the income
determined by the Tribunal. Besides, the Tribunal in the
present case has made an addition of Rs.1,500/- to the
income of pillion rider Kishan Kumar, who also died in
the same accident, in the claim petition instituted by
the dependents of said Kishan Kumar. Therefore, even
this circumstance is required to be taken into
consideration and the income of deceased Santosh is
required to be determined @ Rs.4,500/- p.m.
13) The Tribunal in this case has omitted to take into
consideration the aspect of future prospects all
together. This is clearly an error apparent on the face
(9) 909 FA 4225 OF 2017
of record, which is required to be corrected in the
appeal. In terms of the decision of the Constitution
Bench in Pranay Sethi (supra), taking into consideration
the fact that the age of deceased Santosh was 29 years,
Santosh's income is required to be increased by 40%
towards future prospects. This means that Santosh's
monthly income is to be taken as Rs.6,300/- p.m.
14) Again, as per the decision in Pranay Sethi (supra)
deduction of 1/3 is due towards personal expenses of
Santosh. This means that deceased Santosh would have
contributed towards his dependents a sum of Rs.4,200/-
p.m.
15) In this case, there is no dispute that the proper
multiplier would be 17. A compensation towards
dependency would therefore, come to Rs.4,200 x 12 X 17 =
Rs.8,56,800/-.
( 10 ) 909 FA 4225 OF 2017
16) The learned counsel for the respondent is right in
his submissions that the compensation awarded by the
Tribunal towards conventional heads like loss of
consortium, loss of love and affection or funeral
expenses, is not consistent with the law laid down in
Pranay Sethi (supra).
17) Since, just compensation is being determined, some
modification is necessary on this aspect, even though,
the respondent may not have filed any cross-objection.
So also, on the same basis, there is no necessity to
restrict the compensation to the amount claimed by the
appellants in their claim petition. In Nagappa Vs.
Gurudayal Singh and ors. [
(2003) 2 SCC, 274
], Sanobanu
Nazirbhai Mirza Vs. Ahmedabad Municipal Transport
(2013) 9 SCR 882
Service [ ] and in Ningamma and anr Vs.
(2009) 13 SCC
United India Insurance Company Limited [
], the Hon'ble Supreme Court has held that it is the
duty of the Tribunal to award just compensation
( 11 ) 909 FA 4225 OF 2017
irrespective of whether or not same is claimed by the
claimants.
18) Applying the principle for award of compensation
towards conventional heads as laid down in Pranay Sethi
(supra), compensation of Rs.40,000/-can be awarded to the
appellant No.1 for loss of consortium; Rs.15,000/-
towards funeral expenses; Rs.15,000/- towards loss of
estate. In addition, this is a fit case to award
compensation of Rs.25,000/- each to Santosh's minor son
and aged mother towards loss of love and affection. This
means that to the dependency amount of Rs.8,56,800/-, an
amount of Rs.1,20,000/- will have to be added towards
compensation under conventional heads, thereby, taking
the total compensation to Rs.9,76,800/-.
19) The impugned award is therefore, modified and the
respondent is directed to pay to the appellants
compensation of Rs.9,76,800/- together with interest
( 12 ) 909 FA 4225 OF 2017
accrued thereon @ 7.5% from the date of filing of the
petition till realisation of the amount by way of
compensation. This shall be inclusive of the amount
already paid towards no fault liability. The respondent
shall be entitled to credit for the amount already paid
under the impugned award.
20) From out of the enhanced compensation amount, which
will now have to be paid by the respondent to the
appellants, a sum of Rs.1,00,000/- be paid to appellant
No.3 i.e. mother of Santosh. Further, an amount of
Rs.2,00,000/- to be kept in Fixed Deposit in the name of
appellant No.2 i.e. minor soon jointly with appellant
No.1, the mother. This Fixed Deposit is to be encashed
only upon the appellant No.2 attain majority. The
balance compensation of Rs.1,33,800/- is to be paid to
the appellant No.1.
21) The appeal is partly allowed in the aforesaid terms.
( 13 ) 909 FA 4225 OF 2017
There shall be no order as to costs.
22) The Registry to determine the deficit of Court fee
proportionate to the present award, within four weeks
from today.
23) The appellants to deposit such Court fee, within a
period of eight weeks from the date of such
determination.
[M.S.SONAK, J.]
SPT/909 FA 4225 OF 2017
