Cholamandalam General Insurance ... vs Vijaya Ankush Korde And Ors
2021 Latest Caselaw 11009 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                          FIRST APPEAL NO. 2934 OF 2019

 Cholamandalam General Insurance Company
 Limited, Through its Branch Manager,
 Welasle Court, C.T.S. No.15, Camp,
 Dr. Ambedkar Road, Pune.

 Through its Authorized Signatory / Branch Manager
 3rd Floor, Oberoy Tower, Civil Lines,
 Jalna Road, Opp, Amarpreet Hotel,
 Aurangabad                                    ... Appellant
                                         (Orig. Respondent No.3)

                  Versus


 1.       Vijaya Ankush Korde
          Age: 38 years, Occu: Household,

 2.       Pravin Ankush Korde
          Age: 21 Years, Occu. Education

          Both R/o Khedle Kajali, Tq. Newasa,
          Dist. Ahmednagar

 3.       Bharat Laxman Ghadge
          Age: Major, Occu. Agriculture,
          R/o. Gadge Vasti, Mohol Road, Devgaon,
          Tq. Pandharpur, Dist. Solapur

 4.       Ramkrushna Madhavrao Potdar
          Age: 51 years, Occu. Driver
          R/o. Sambhaji Chowk, Chavan Hospital,
          Pandharpur, Dist. Solapur                ... Respondents
                                      (Respdt.No. 1 & 2-Org.Claimants
                            Respdt.Nos. 3 & 4 - Org.Respd.Nos. 1 & 2)
                                     ....


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 Mr. S. G. Chapalgaonkar, Advocate for appellant
 Mr. Ram B. Deshpande, Advocate for respondent Nos. 1 and 2
                                 ....

                                     CORAM : R. G. AVACHAT, J.

                                     DATED       : 13th AUGUST, 2021



 PER COURT :-



 .                This is Insurance Company's appeal, challenging the

judgment and award dated 15.09.2017, passed by the Member,

Motor Accident Claims Tribunal (M.A.C.T.), Newasa in Motor

Accident Claim Petition No.16 of 2015, awarding compensation of

Rs.11,25,488/- with interest @ 9% p.a. from the date of the petition

to the day of realization of the entire amount.

2. FACTS:-

The deceased Ankush was proceeding on his motorbike

bearing registration No. MH-17/AB-3417 along Ahmednagar-

Aurangabad road. While he was taking turn towards East, the Indica

Car bearing registration No. MH-13/AZ-7056, knocked him down.

As a result, the deceased died. The widow and the son of the

deceased therefore preferred the petition for compensation

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contending that the deceased was an agriculturist by profession. The

deceased would also vend milk, etc.

3. On appreciation of the evidence in the case, the Tribunal

found it to be a case of contributory negligence in the proportion of

80:20. The Tribunal considered the monthly income of the deceased

at Rs.8,000/- (Agriculture labour Rs.6000 + Rs.2000 towards

agricultural supervision). 30% thereof was added towards future

prospects. Considering him to be in the age group of 41 - 45 years,

multiplier was 13 applied. An amount of Rs.10,81,860 was worked

out towards loss of dependency. Towards non pecuniary damages,

the Tribunal awarded a sum of Rs.1,00,000/- to the widow, towards

loss of consortium, besides Rs.1,00,000/- each towards loss of love

and affection. Rs.25,000/- were awarded for funeral expenses.

4. Heard. Perused the impugned award and the evidence relied on.

Shri S. G. Chapalgaonkar, learned Advocate for the

appellant - Insurance Company would submit that the deceased

himself was riding the motorcycle. The mode and the manner of the

occurrence of the accident reveals that, deceased went to wrong

direction and gave dash to the car. The Tribunal ought to have

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therefore considered it to be a case of contributory negligence in

equal proportion. He would further submit that the Constitution

Bench of the Apex Court in the case of National Insurance Company

Limited vs Pranay Sethi and others - (2017) 16 SCC 680 , has laid

down a concept of standardisation in order to attend uniformality in

assessment of compensation towards non pecuniary losses. The

amount of compensation to be awarded under this head has been

quantified at Rs.70,000/-. The Tribunal has awarded it to

Rs.3,25,000/-. The learned Advocate would further submit that the

deceased left behind his agricultural land. The same has inherited by

the claimants. The claimants continue to receive income from

agriculture even after demise of the deceased. In this view of the

matter, the Tribunal should only have awarded compensation on

account of loss of supervision. In addition to agricultural income, the

Tribunal considered Rs.2,000/- per month towards loss of

supervision charges. The same is excessive and exorbitant. The

learned Advocate would further submit that the widow of the

deceased could only be termed to be a dependent of the deceased.

Claimant No.2 was the major son of deceased. He was not

dependent on the income of the deceased. The Tribunal, therefore,

should have deducted half of the income of the deceased towards his

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personal and living expenses, instead of 1/3rd. The learned Advocate

would further submit that the prevailing rate of interest awarded by

Nationalised Banks is in between 6.5% to 7% per annum. The

Tribunal has awarded interest at the rate 9% per annum. The same

therefore needs to be scaled down. Learned Advocate for the

appellant - Insurance Company relied on the following judgments:

(i) T. O. Anthony vs. Karvarnan and others - (2008) 3 SCC 748;

(ii) Nishan Singh and others vs. Oriental Insurance Company Limited Through Regional Manager and others - (2018) 6 SCC 765.

5. Shri Ram Deshpande, learned Advocate for the claimants

would, on the other hand, submit that there is evidence to indicate

the deceased was a milk vendor and had income therefrom. The

learned Advocate reiterated the reasons given by the Tribunal in

support of the impugned award.

6. The evidence on record undoubtedly indicate that the

deceased had already taken a turn towards East. The Tribunal

observed the accident took place in the slow lane. As per the

panchanama of the spot of the accident, the car moved on to the

eastern edge of the road. The same indicate the car driver tried to

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avoid the accident. It further observed that when accident took place

in the slow lane, the car driver had sufficient time to avoid the

accident, as he could see the deceased at a long distance. Had the

car been in moderate speed, accident could have been avoided. It

further observed that the deceased was also required to take care

while crossing the highway. In view of the scene of accident

panchanama, the Tribunal held it to be a case of contributory

negligence in proportion of 80:20. I do not see any reason to defer

with the said finding and enhance the proportion or percentage of

contributory negligence on the part of the deceased.

7. The deceased was an agriculturist by profession. True,

on his demise, the agricultural land has been inherited by the

claimants. The fact however remains that the deceased must have

personally been engaged in agricultural operations. It is a case of

accident that took place in January 2015. It has to be assumed that

in those days minimum wages of agricultural labour must have been

not less than Rs.200/- per day. The Tribunal has therefore rightly

considered the notional income of the deceased at Rs.6,000/- per

month. True, the Tribunal, therefore, ought not to have considered

Rs.2000/- per month towards loss of supervision charges. This Court

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could have preferred to ignore the same, but for evidence on record

to indicate that the deceased would rear mammals. He would

supplied milk to a local dairy. The Tribunal has not considered his

income from milk vending. Needless to mention the claimants

though not preferred appeal or cross objection, can still rely on

evidence in the case which has not been referred to by the Tribunal,

to support the impugned award. In view of the same, I do not

propose to interfere with the quantum of compensation awarded

towards loss of dependency.

8. In view of the Judgment of the Apex Court in the case of

Pranay Sethi (supra), the widow of the deceased would be entitled

to a sum of Rs.40,000/- towards loss of consortium. The Tribunal has

awarded her a sum of Rs.1,00,000/-. The same, therefore, needs to

be scaled down to Rs.40,000/-. When the widow has been awarded

compensation on account of loss of consortium, the Tribunal ought

not to have awarded a further sum of Rs.1,00,000/- on account of

loss of love and affection. The son has also been awarded an equal

amount of compensation under the same head. The son, however,

would be entitled to a sum of Rs.40,000/- towards loss of love and

affection in view of the Apex Court's judgment in the case of Magma

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General Insurance Company Limited vs. Nanu Ram alias Chuhru

Ram and others - (2018) 18 SCC 130.

9. As such, interference with the impugned award granting

Rs.3,00,000/- towards loss of consortium and love and affection,

needs to be made scaling it down to Rs.40,000/- each. The interest

at the rate 9% p.a. also happens to be on higher side. The same

needs to be reduced to 7.5%.

10. As such, the claimants would only be entitled to a sum of

Rs.80,000/- (Rs.40,000/- each) towards loss of consortium and love

and affection. Here, the Tribunal has awarded them a sum of

Rs.3,00,000/-. A sum of Rs.2,20,000/- would therefore be deducted

from the total amount of compensation granted. Here, it is to be

noted that already 20% thereof has been deducted on account of

contributory negligence on the part of the deceased. Hence, a sum of

Rs.1,76,000/- only needs to be subtracted. This way, the total

amount of compensation comes to Rs.9,49,488/-. The rate of interest

is reduced to 7.5%.

11. In view of above, the appeal is partly succeeds. Hence,

following order:-

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ORDER

(i) The appeal is partly allowed. The impugned award is modified as under.

(ii) In Clause 2 of the impugned award, a sum of Rs.11,25,488 (Rupees Eleven Lakh Twenty Five Thousand Four Hundred Eighty Eight) is replaced with a sum of Rs.9,49,488/- (Rupees Nine Lakh Forty Nine Thousand Four Hundred Eighty Eight) and interest 9% p.a. appearing therein is replaced by 7.5% p.a.

(iii) The amount in deposit, if any, with this Court or the Tribunal, be paid to the claimants along with interest accrued thereon. The balance amount, if any, be paid back to the appellant - Insurance Company.

[ R. G. AVACHAT, J. ]

SMS

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