Bombay High Court

The Oriental Insurance Co. Ltd., ... vs Bhanudas Bhimrao Gore And Ors on 18 August, 2021

Bench: R. G. Avachat

                                        1           FA-2833-2019.doc



             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                          FIRST APPEAL NO. 2833 OF 2019

 The Oriental Insurance Co. Ltd.,
 Through its Br. Manager,
 Branch Office, near D.C. Petrol Pump,
 Jalna, Dist. Jalna
 Through its authorized signatory,
 Administrative Officer, D. O. I.,
 Oriental Insurance Co. Ltd. Aurangabad                ... APPELLANT
                                                       Orig. Resp.No.3
          Versus

 1.       Bhanudas Bhimrao Gore
          Age: 56 Yrs. Occ. Labour
          R/o Watur Phata, Ta. Partur
          Dist. Jalna                                  .. Orig. Claimant

 2.       Abdul Kalim S/o Abdul Razzak
          Age. 49 Yrs. Occ. Driver
          R/o. House No. 4-5-90, Rengtipura
          Old Mondha, Aurangabad

 3.       Prajesh Rana S/o Anil Rana
          Age 54 Yrs., Occ. Business & Owner
          R/o Rana Niwas, Basmati House,
          House No. 4-17-10 Rengtipura
          Ols Mondha, Aurangabad                   ... RESPONDENTS
                                     Orig.Claimant & Resp.Nos. 1 to 2

                                 ....
 Mr. Dhananjay P. Deshpande, Advocate for appellant
 Mr. S. D. Tawshikar, Advocate h/f Mr. V. Y. Patil, Advocate for
 respondent No.1
 Mr. U. M. Maske Patil, Advocate h/f Mr. S. B. Ghatol Patil, Advocate
 for respondent Nos. 2 and 3
                                 ....



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                                        CORAM : R. G. AVACHAT, J.

RESERVED ON : 05th AUGUST, 2021 PRONOUNCED ON : 18th AUGUST, 2021

J U D G M E N T :-

. The challenge in this appeal is to the award dated

24.04.2019, passed by the Ex Officio Member, Motor Accident

Claims Tribunal (M.A.C.T.), (for short 'the Tribunal') Jalna in Motor

Accident Claim Petition (M.A.C.P.) No.205 of 2015. By the impugned

award, the appellant - Insurance Company, the vehicle owner and its

driver, original respondent Nos. 1 and 2 have been directed to pay,

jointly and severally a sum of Rs.3,93,000/- with 7% interest per

annum thereon from the date of filing of M.A.C.P. to the date of

payment to the respondent No.1 herein (original claimant). The

Insurance Company has, therefore, preferred the present appeal.

2. FACTS:

The deceased Sakharam Gore died in the accident

on 06.10.2015 involving the motor vehicle, Car bearing

No.MH-20-BY-9998. The accident took place due to rash and

negligent driving of the car by respondent No.2 herein. The car

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belonged to respondent No.3. It had the insurance cover granted by

the appellant Insurance Company.

3. The deceased died bachelor. The claim was preferred by

his real brother. On appreciating the evidence in the case, the

Tribunal awarded compensation of Rs.3,93,000/- assuming monthly

income of the deceased to be Rs.5,000/- per month. 10% was added

therein on account of future prospectus. Thus, the income of the

deceased was taken of Rs.66,000/- per annum. The amount of

compensation after applying multiplier of 11 was worked out at

Rs.7,26,000/- (Rupees Seven Lakh Twenty Six Thousand). Since the

deceased died bachelor, 50% thereof came to be deducted towards

standardise deduction. The claimant was awarded Rs.30,000/-

towards funeral expenses and loss of estate. Thus the amount of

compensation came to Rs.3,93,000/-.

4. Shri Dhananjay Deshpande, learned Advocate for the

Insurance Company would submit that the claimant was not

dependent on the deceased. The Tribunal, therefore, ought not to

have granted him compensation on the ground of loss of

dependency. Learned Advocate took me through the impugned

award and also relied on the judgment of the Hon'ble Supreme

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Court in the case of National Insurance Company Limited Vs.

Birender and others - (2020) 11 SCC 356. Learned Advocate,

therefore, urged for allowing the appeal.

5. Shri Tawshikar, learned Advocate for the claimant

would, on the other hand, submit that although the deceased died

bachelor, he was residing along with the claimant. Both were serving

in one and the same employer. The claimant and his family members

would provide the deceased daily meal and took his care. The

deceased was contributing his substantial income for the family of

the claimant. As such, due to the untimely death, the claimant has

suffered financially and emotionally, as well. The learned Advocate

urged for enhancement of the quantum of compensation. According

to him, the Tribunal has not granted 10% hike. It has also not

granted compensation on account of consortium. In view of learned

Advocate, in terms of directions given by the Constitution Bench in

the case of National Insurance Company Limited Vs Pranay Sethi

and others - (2017) 16 SCC 680, the Tribunal ought to have

granted compensation as has been urged by him. According to him,

the Appellate Court would be justified in enhancing compensation in

spite of there being no cross appeal or even cross objection, as well.


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He also urged for enhancing the rate of interest from 7% to 9%.

Learned Advocate has relied on the following judgments.

(1) The New India Assurance Company Limited Vs. Rajni Harshwardhan Sharma and Ors -

MANU/MH/2036/2015;

(2) United India Insurance Company Limited and Ors Vs. Kunti Binod Pande and Ors - MANU/MH/3536/2019;

        (3)    Annapurna and Ors          Vs.   Jaspal       and      Ors      -
               MANU/MH/1630/2019;

(4) Magma General Insurance Co. Ltd., Vs. Nanu Ram and Ors - MANU/SC/1012/2018.

6. Section 166 (1) (c) of the Motor Vehicles Act, 1988

(M.V. Act) reads thus:

"166. Application for compensation. - (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made -

............ ............

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased".

7. The deceased died bachelor. The claimant being real

brother of the deceased, being his Class-II heir, is a legal

representative of the deceased. He is, therefore, entitled to file

application under Section 166 of the M.V. Act.


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8. The question is whether the claimant was justified in

claiming compensation on account of loss of dependency. In

Birender's case (supra), the Hon'ble Supreme Court in para 14 has

observed thus :

"14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only."

9. It has been averred in para 3 of the M.A.C.P. that both

the claimant and the deceased were serving with one and the same

employer. The deceased was serving as a Watchman at an average

monthly pay of Rs.5,000/-. Since the deceased was bachelor, and his

parents having been already passed away, he was staying with the

claimant as one of his family members. The deceased would

contribute a sum of Rs.150/- to Rs.170/- daily to the claimant's

family. Since income of the claimant was meager and the cost of

leaving was high, the claimant was dependent on the income of the

deceased. As such, a case of dependency was averred in the M.A.C.P.

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The claimant filed his affidavit of evidence Exh.19 reiterating the

very averments. I have carefully perused the cross examination of

the claimant to find that the appellant - Insurance Company has not

disputed the said evidence. As such, the learned Advocate for the

appellant - Insurance Company would not be justified in contending

that the claimant was not dependent on the income of the deceased

and therefore, the compensation granted on that count needs to be

set aside. True, the claimant might not have been wholly dependent

on the income of the deceased.

10. Learned Advocate for the claimant may be right so far as

regards legal proposition is concerned. The Appellate Court can

enhance compensation in appeal preferred by the Insurance

Company or owner/driver, challenging the award granting

compensation without there being an appeal by the claimant for

enhancement or cross objections. I do not propose to dwell at length

on this issue, since I find the amount of compensation granted by the

Tribunal to be adequate and just, although under one or the other

head, the Tribunal has not granted any compensation. Section 168 of

the M.V. Act reads :

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"168. Award of the Claims Tribunal. - (1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 163 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: