The New India Assurance Co. Ltd. ... vs Smt. Girjabai Budha Tikhole And ...
2018 Latest Caselaw 611 Bom

                                         (1)                     901-FA 873 of 2015



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                     901 FIRST APPEAL NO. 873 OF 2015

.     The New India Assurance Company
      Ltd., Through its Authorized Official
      and Divisional Manager, Legal Hub
      Adalat Road, Aurangabad.              ..Appellant

                                VERSUS

1.    Smt.Girjabai Budha Tikhole
      Age: 40 years, Occu.: Household.

2.    Anna Budha Tikhole
      Age: 21 years 

3.    Kodhabai Sambha Tikhole
      Age: 75, Occu.: Nil

      All R/o Gadyacha Zaap, Post.Palshi,
      Tal.Parner, Dist.Ahmednagar.          ..Respondents

                              ...
         Advocate for Appellant : Mr.P.P.Deshpande  
     Advocate for Respondent Nos.1 to 3 : Mr.R.A.Tambe  
                             ... 

                                         CORAM :  M.S.SONAK, J.

DATE : 18th January, 2018

ORAL JUDGMENT:-

1) Heard Mr.P.P.Deshpande learned counsel for the

appellant and Mr.R.A.Tambe learned counsel for the

(2) 901-FA 873 of 2015

respondent Nos.1 to 3.

2) Learned counsel for the parties point out that there

was already an order made for disposal of this appeal

finally at the stage of admission, since, only an issue

of quantum of compensation was involved. Accordingly,

record and proceedings were called for and perused.

3) Mr.Deshpande learned counsel for the appellant

submits that the Tribunal has erred in taking the monthly

income of the deceased at Rs.6,000/- p.m.. He submits

that no documentary evidence has been produced in support

of this. He submits that since the deceased was an

agriculturist and infact, agriculture activities are

continued by his son, there was absolutely no

justification to treat his income @ Rs.6,000/- p.m. and

determine dependency on the said basis. Mr.Deshpande

submits that at the highest that income on notional basis

could have been taken as Rs.4,000/- p.m.

(3) 901-FA 873 of 2015

4) Mr.Deshpande further submits that medical bills to

the extent of Rs.1,42,000/- is admitted. As regards rest

of the medical expenses, there is no cogent evidence

produced by the claimants. In these circumstances,

Mr.Deshpande submits that the Tribunal erred in taking

medical expenses @ Rs.3,07,778/-.

5) Mr.Deshpande submits that the challenge in the

appeal is only on two grounds and by accepting the same,

the compensation is required to be substantially reduced.

6) Mr.Tambe learned counsel for the respondents submits

that the Tribunal has correctly taken the income of the

deceased @ Rs.6,000/- p.m. Substantial evidence was

produced on record and this has been correctly

appreciated by the Tribunal. In so far as medical

expenses are concerned, Mr.Tambe again submits that

medical bills have been produced which have been verified

(4) 901-FA 873 of 2015

by the Tribunal to arrive at the amount of Rs.3,07,778/-.

Mr.Tambe submits that in this case, compensation awarded

against the head of loss of love and affection is too

less. He submits that even the compensation towards loss

of estate, funeral expenses and consortium is much lesser

compared to what has been prescribed by the Constitution

Bench in the National Insurance Company Limited Vs.

Pranay Sethi and ors. [2017 SC Online SC 1270]. He

submits that there is duty of this Court to determine

just compensation, and necessary additions are required

to be made.

7) In this case, the Tribunal has taken the necessary

income of the deceased, who was an agriculturist @

Rs.6,000/- p.m. The Tribunal is however, failed to give

true credence to the position that the son of the

deceased i.e. respondent No.2, who was of 21 years of age

and was continuing agricultural operations. From the

evidence on record, monthly income of Rs.5,000/- p.m.

(5) 901-FA 873 of 2015

appears adequate. On this basis, even after effecting

notional deductions, the compensation towards dependency

would come to Rs.6,00,000/- and not to Rs.6,72,000/- as

determined by the Tribunal.

8) The Tribunal, it appears has failed to make any

addition towards future prospects. Learned counsel for

the appellant submits that there is absolutely no

evidence with regards to future prospects. He submits

that the deceased was not a salaried employee and no

income tax return has been filed. This submission cannot

be accepted, since, even according to the appellant,, the

income of deceased can be taken as Rs.4,000/-. Obviously,

it would arise no question of filing of income tax

return, as agricultural income upon which normally no

income tax is payable. Taking into consideration the

decision of the Constitution Bench in the case of Pranay

Sethi (supra) and the age of the deceased i.e. 43 years,

it is only appropriate that 25% addition would be made

(6) 901-FA 873 of 2015

towards future prospects. This means that the total

compensation towards dependency would come to

Rs.7,50,000/-.

9) On the aspect of medical expenses, there is

absolutely no doubt or dispute as to the figure of

Rs.1,42,000/-. As regards the balance amount, there is a

serious dispute raised by the Insurance Company. There

are some bills produced on record by the claimants, but

they have not been proved in the manner required by law.

Nevertheless, there is material on record to suggest that

deceased was admitted in the hospital for 20 days. Taking

this aspect into consideration, it will be appropriate,

if the compensation towards the medical expenses is taken

as Rs.2,00,000/-, instead of Rs.3,07,778/- as determined

by the Tribunal.

10) Towards loss of love and affection, the Tribunal has

awarded only Rs.10,000/-. In this case, the son and the

(7) 901-FA 873 of 2015

aged mother are entitled to atleast Rs.25,000/- each

towards loss of love and affection. Similarly, in terms

of the decision of the Constitution Bench in Pranay

Sethi (supra), compensation towards loss of estate,

funeral expenses and loss of consortium has to be

determined @ Rs.15,000/-, Rs.15,000/- and Rs.40,000/-

respectively.

11) On the basis of the aforesaid, total compensation

amount comes to Rs.10,70,000/-. However, the learned

counsel for the appellant is right in his submission that

since this was in case of an agriculturist and there is

no direct evidence as regards to his income, this is not

a fit case to increase the quantum of compensation in the

appeal instituted by the Insurance Company. Accordingly,

even though the contentions raised by the learned counsel

for the appellant are partly accepted, there is no case

made out to interfere with the total quantum of

compensation as awarded by the Tribunal.

(8) 901-FA 873 of 2015

12) For the aforesaid reasons, this appeal is dismissed.

13)There shall be no order as to costs.

14) The claimants are permitted to withdraw the balance

compensation amount as deposited in this Court together

with the interest accrued thereon consistent with the

direction in the impugned award.

15) The Registry is directed to transmit the amount

deposited in this Court to the executing Court within the

period of two weeks. So that respondents/claimants can

withdraw the same.

[M.S.SONAK, J.] SPT/901-FA 873 of 2015