Div. Officer, United India ... vs Shashank Shrikant Modi And Ors
2021 Latest Caselaw 10575 Bom

                                                     First Appeal No.1958/2020
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                       FIRST APPEAL NO.1958 OF 2020


 Divisional Officer,
 United India Insurance Company,
 Divisional Office, Above Axis Bank,
 Osmanabad, through its
 Authorised Signatory, United India
 Insurance Company, T.P. Hub,
 Osmanpura, Aurangabad                               ... APPELLANT

                  VERSUS

 1.       Shashank Shrikant Modi,
          Age 24 years, Occ. Education,

 2.       Prachi Shrikant Modi,
          Age 26 years, Occ. Education,

 3.       Sow. Smita Amol Bhadule,
          Age 32 years, Occ. Household,
          R/o Karve Nagar, Pune

 4.       Sow. Neha Shirish Tabe,
          Age 29 years, Occ. Household,

          Nos.1, 2 and 4 R/o Laxmi Nagar,
          Kalamb, Tq. Kalamb,
          District Osmanabad

 5.       Shaikh Salim Shaikh Khalil,
          Age major, Occ. Business,
          R/o Neknur, Tq. & Dist. Beed.              ... RESPONDENTS

                             .......
 Shri A.S. Usmanpurkar, Advocate for appellant
 Shri P.S. Chavan, Advocate for respondents No.1 to 4
                              .......

                                  CORAM :       R. G. AVACHAT, J.
                                  DATED :       9th AUGUST, 2021




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                                                  First Appeal No.1958/2020
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 JUDGMENT:

Admit. Taken up for final hearing with the consent

of learned counsel for the parties.

2. This is an appeal under Section 173 of the Motor

Vehicles Act (MV Act). The appeal has been filed by the

Insurance Company, original respondent No.2, taking

exception to the award dated 7/2/2020, passed by the Motor

Accident Claims Tribunal (Tribunal), Osmanabad in Motor

Accident Claim Petition (MACP) No.64/2016. By the impugned

award, the appellant and the respondent No.5, original

respondent No.1, have been directed to pay the respondents

No.1 to 4 (claimants) a sum of Rs.19,35,000/- with interest @

7% p.a. thereon from the date of petition to the date of

payment of the entire amount.

3. A short question that is involved in this appeal is

as to whether the Tribunal was justified in deducting only one

fourth of the pension of the deceased Shrikant towards

personal and living expenses.

Deceased Shrikant admittedly died in the accident

involving motor vehicle. The deceased was 59 years of age

when he breathed his last. He was a retired Instructor with

First Appeal No.1958/2020 :: 3 ::

Industrial Training Institute, Kalamb. The deceased would

draw a monthly pension of Rs.21,418/-. The wife of the

deceased died in the same accident. Both have been survived

by the claimants, a son and three daughters. Admittedly, two

of the daughters have already been married before the

accident. The Tribunal held the annual income of the

deceased at Rs.2,52,000/- (Rs.21000 per month). It

preferred to deduct one fourth thereof i.e. Rs.63,000/-

towards personal and living expenses (2,52,000 - 63,000).

The annual income of the deceased was thus fixed at

Rs.1,89,000/- for calculating the amount of compensation.

Since the deceased died at the age of 59 years, a multiplier of

9 was applied. Thus, the amount of compensation was

worked out at Rs.17,01,000/-. In addition thereto, the

claimants were awarded Rs.1,61,154/- towards

reimbursement of medical expenditure, Rs.70,000/- for

funeral expenses and loss of love and affection.

4. Learned counsel for the appellant Insurance

Company would submit that, two of the claimants were

married daughters of the deceased. Those could not be

termed to be the dependents on the income of the deceased.

According to learned counsel, the Tribunal ought to have

deducted 50% income of the deceased towards personal and

First Appeal No.1958/2020 :: 4 ::

living expenses. Learned counsel would further submit that,

the claimants being adult, were not entitled to receive family

pension on the death of their father. The Tribunal, therefore,

ought to have taken into consideration a fixed sum of money

as notional income of the deceased. The learned counsel,

therefore, urged for reworking out the amount of

compensation.

5. Learned counsel for the respondents - claimants

would, on the other hand, submit that, the Tribunal has not

added 15% of the established income of the deceased

towards future prospects. With a view to defend the award

passed in favour of the claimants, they are very much entitled

to point out mistake committed by the Tribunal in calculating

the compensation. According to learned counsel, even the

married daughters could be the dependents, entitled for

compensation under Section 166 of the MV Act. Learned

counsel relied on the following authorities :-

(1) Gujarat State Road Transport Corporation, Ahmedabad V/s Ramanbhai Prabhatbhai and another [ AIR 1987 SC 1690 ]

(2) National Insurance Company Ltd. Vs. Pranay Sethi & ors. [ AIR 2017 SC 5157 ]

(3) Ranjana Prakash & ors. Vs. Divisional Manager & anr.

[2011 ACJ 2418 ]

First Appeal No.1958/2020 :: 5 ::

(4) Smt. Satva Devi & anr. Vs. Mr. Nihal Singh & ors.

[ 2005(2) Sim.L.J.1038 ]

(5) The Managing Director, Karnataka State Transport Corporation Limited Vs. P. Selvi & ors. [ 2020(1) T.N.M.A.C. 26 ]

6. The claimants No.3 and 4 are married daughters

of the deceased. These daughters, therefore, could not be

said to have been the dependents on the income of the

deceased. The claimants No.1 and 2 are major, taking

education. The deceased was 59 years of age when he

breathed his last. He was a retired Instructor, drawing

monthly pension of Rs.21,418/-. The Constitution Bench of

the Hon'ble Supreme Court of India, in case of Pranay Sethi

(supra), has observed :-

"In our view, the standards fixed by this Court in Sarla Verma on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraph is made out."

7. In view of the above, the Tribunal ought to have

deducted 50% of the monthly pension of the deceased

towards his personal and living expenses. It also ought to

have considered the exact figure of pension i.e. Rs.21,418/-.

First Appeal No.1958/2020 :: 6 ::

The submission of the learned counsel for the appellant

Insurance Company that on the demise of deceased Shrikant

Modi, the claimants being his grown up children, were not

entitled to receive family pension, could not be accepted

because, had the deceased not met with the accident, his

pension would have been available for claimants No.1 and 2

for their necessities in the life. As such, for determining the

amount of compensation, annual income of the deceased

comes to Rs.21,418 x 12 = Rs.2,57,016/-. The Tribunal did

not make addition towards future prospects. In view of the

directions in case of Pranay Sethi (supra), whether the

deceased was self-employed on a fixed salary, addition should

be of 10% of the established income when the deceased was

between the age group of 50 - 60 years. It was on account of

future prospects. The deceased was a retired employee,

drawing a fixed pension, not entitled to any annual increment

or pay revision except Dearness Allowance. In my view,

therefore, the Tribunal ought to have added 10% of the

established income of the deceased towards future prospects.

As such, by addition of 10% of Rs.2,57,016/- i.e. Rs.25,702/-,

the total comes to Rs.2,82,718/-. After deducting 50% of the

amount towards personal and living expenses of the

deceased, the amount comes to Rs.1,41,359/-. Applying the

First Appeal No.1958/2020 :: 7 ::

multiplier of 9 to this amount, the amount of compensation on

account of loss of dependency comes to Rs.12,72,231/-. The

Tribunal has awarded a sum of Rs.1,61,154/- towards

reimbursement of medical expenditure and Rs.70,000/- for

funeral expenses and loss of love and affection. There is no

reason to interfere with grant of this much amount of

compensation under these two heads.

8. In view of the above, the impugned award is

modified as under :

(i) The figure Rs.19,35,000/- appearing in clause (B) and

clause (D) of the impugned award is replaced by the figure

Rs.15,03,385/-. The figure Rs.3,00,000/- appearing in clause

(D) of the impugned award is replaced with the figure

Rs.2,00,000/-. Rest of the terms of impugned award to stand

unaltered.

(iii) The amount of compensation deposited either with this

Court or the Tribunal, be paid to the claimants in terms of this

award immediately, and the balance amount, if any, be paid

back to the appellant Insurance Company.

( R. G. AVACHAT ) JUDGE

fmp/-