Bombay High Court
Smt. Latabai W/O Kailash Uike And ... vs Tata Motors Ltd, Mumbai And ... on 30 August, 2021
Bench: Pushpa V. Ganediwala
1 fa-181-2018-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FIRST APPEAL NO. 181 OF 2018
APPELLANTS: 1. Smt. Latabai W/o Kailash Uike
Age 42 Years, Occ. Nil, (Wife)
2. Vijay Kailash Uike
Age 22 Years, Occ. Nil, (Son)
3. Chandrashekhar Kailash Uike
Age 19 years, Occ. Nil, (Son)
Resident of Tadgaon, Tah. Arjuni / Mor,
Dist. Gondia
Vs.
RESPONDENTS : 1. TATA MOTORS LTD,
A Block, Shivsagar Estate, Worli-18,
Mumbai - 400018. [Owner of the Chesis
bearing temporary registration no.
JH-05/A-4834/Z/11, bearing Chesis No.
MAT395004B2R25704 and Engine No.
5.9 145 1011K63188199].
2. The New India Assurance Co Ltd,
Registered Office at New India
Assurance Building, 87, MG Road, Fort,
Mumbai - 400001 [issued at
Jamshedpur], bearing cover note no.
57846 date. 11/11/2011.
3. Insurer of the vehicle bearing temporary
registration no. JH-05/A-4834/Z/11,
bearing Chesis No.
MAT395004B2R25704 and Engine No.
5.9 1451011K63188199].
Mr. A.R. Rishi Advocate for the appellants
CORAM : PUSHPA V. GANEDIWALA, J.
DATE : AUGUST 30, 2021
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ORAL JUDGMENT
Heard.
2. This is the claimants' appeal under Section 173 of
the Motor Vehicles Act, 1989, against the judgment and Award
dated 09/02/2015, in Claim Petition No.75/2012, passed by the
Chairman, Motor Accident Claims Tribunal, Gondia, whereby
the learned Tribunal allowed the Claim Petition and directed
respondent Nos.1 to 3 to pay jointly and severally the amount of
compensation of Rs.1,00,000/- to the claimants / appellants
alongwith interest @7% per annum from the date of filing of
the Petition i.e. from 13/08/2012, till realization including the
amount towards "no fault liability". The grievance of the
claimants / appellants in this appeal is only with regard to
enhancement of compensation.
3. The facts, in brief, can be stated as under :
Appellant No.1 is the wife of the deceased and the
appellant Nos.2 and 3 are his children. The deceased died in a
motor vehicular accident occurred on 19/11/2011 at Arjuni
Tah. Arjuni, District Gondia, involving a truck, bearing
temporary Registration No. JH-05 / A-4834/Z/11, Chassis No.
MAT395004B2R25704, Engine No. B 5.9 145 1011K63188199.
The cause of the accident is stated to be due to rash and
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negligent driving of the truck, which was insured with
respondent No.3 - New India Assurance Co. Ltd. At the time of
accident, the deceased was riding a bicycle. The legal heirs of
the deceased filed a Claim Petition against the owner, driver and
insurer of the offending truck and claimed compensation of
Rs.6,75,000/- under various heads. However, for the purposes
of payment of Court fees, they restricted their claim upto
Rs.1,00,000/-. The respondent No.3, in its written statement,
denied the contents in the Claim Petition in toto and in its
specific pleadings, took the defence of contributory negligence
on the part of the deceased and that the driver of the truck was
not holding a valid driving licence at the time of the accident.
4. The learned Tribunal framed necessary issues and
recorded evidence as adduced by the parties. The learned
Tribunal, on the basis of oral and documentary evidence on
record, recorded the findings that deceased Kailash S/o Siku
Uike, died in the motor vehicular accident involving truck
bearing Registration No. JH-05 / A-4834/Z/11, due to the rash
and negligent driving of respondent No.2. Therefore, the
appellants are entitled for compensation of Rs.1,00,000/- with
interest.
4 fa-181-2018-J.odt
5. This judgment of the learned Tribunal is assailed in
this appeal by the appellants/claimants and sought the
enhancement of the compensation.
6. I have heard learned counsel Shri A.R. Rishi,
appearing for the appellants. Despite service, none appeared
for respondent No.1 i.e. owner of the truck. The learned counsel
Shri Sachin Zoting, for the respondent No. 3, the Insurance
Company is also not present in spite of sufficient opportunity
was granted on earlier occasions.
7. The learned counsel for the appellants Shri A.R.
Rishi submits that in the Claim Petition the appellants have
categorically claimed Rs.6,75,000/- towards compensation and
restricted their claim for the purposes of payment of court fees
to Rs.1,00,000/-. It is submitted that the learned Tribunal
without considering the principal of 'just compensation' and
without considering the settled position of law, as laid down by
the Hon'ble Apex Court has awarded meager compensation of
Rs.1,00,000/- to the appellants. The learned counsel submits
that the appellants are entitled for compensation as per the
judgment in the case of in the case of National Insurance
Company Limited vs Pranay Sethi and others (2017) 16 SCC
5 fa-181-2018-J.odt
680 .
8. I have considered the submissions and perused the
record. Since the judgment and award of the learned Tribunal is
not challenged by the owner, driver nor insurer of the vehicle,
therefore, the finding with regard to occurrence of the accident
due to rash and negligent driving of the driver of the offending
vehicle owned by respondent No.1 - Tata Motors Ltd. and
insured with respondent No.3 - the New India Assurance Co.
Ltd. has attained finality.
9. The only question for consideration of this Court is,
whether the appellants / claimants are entitled for
enhancement of compensation in terms of the exposition of law
in the case of National Insurance Company Limited vs Pranay
Sethi (supra).
10. Now, it is well settled that it is the duty of the Court
to grant 'just compensation' to the victims of motor accidents.
The appellants / claimants in the Claim Petition claimed
Rs.5,000/- as monthly income of the deceased. The appellant
No. 1, the wife of the deceased in her evidence on affidavit has
stated that deceased was earning Rs.5000/- by doing labour
6 fa-181-2018-J.odt
work. There is no effective cross-examination on the earnings
of the deceased. In her cross-examination she has denied that
deceased was earning Rs.50/- or Rs.60/- per day. However, she
has not placed on record any documentary evidence to show
that deceased was earning Rs. 5000/- per month.
11. Considering the fact that the deceased was doing
labour work, it cannot be expected from a widow wife of a
labourer to produce any documentary proof to substantiate
income of her husband. As stated earlier, there is no effective
cross examination of this witness to belie her statement with
regard to the income of the deceased. I do not see any good
reason not to believe her statement. Considering the evidence
on record so also the object of the enactment of the statute of
the Minimum Wages and rising price index, in my considered
view, income of Rs.5000/- to a labour could not have been an
exorbitant amount.
12. The deceased was maintaining the family of four
persons. The accident is of the year 2012. There is nothing on
record to indicate that the wife of the deceased, the appellant
no. 1 herein was also an earning member of the family. At the
relevant time, the deceased was riding a bicycle and the
7 fa-181-2018-J.odt
offending truck due its rash and negligent driving gave a violent
dash to the deceased and due to which he died. The amount of
compensation can certainly not fill the vacuum in the family
having two minor children, caused by untimely death of the
deceased. However, it would certainly help the widow wife to
provide proper education and nourishment to the children for
the time being.
13. Therefore, by taking into account the monthly
income of the deceased at Rs.5000/- per month and at the
relevant time as per the evidence on record the deceased was
of age 38 years, the appellants / claimants are entitled for
compensation towards conventional and non-conventional
heads in the following manner :
Sr. No. Particulars Calculation
1 Monthly income Rs.5000/-
2 Plus 40% Future prospectus Rs.2000/-
Total Rs.7000/-
4 1/3rd deducted as personal Rs.7000/3 =
expenses Rs.4666/-
5 Compensation after multiplier of 4666 X 12 X 16 =
16 is applied Rs.8,95,872/-
6 Loss of estate Rs.15000/-
7 Loss of consortium (40,000 X 3) Rs.1,20,000/-
8 Funeral expenses Rs.15,000/-
TOTAL Rs. 10,45,872/-
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14. For the aforesaid reasons, the appellants / claimants
are entitled for compensation of Rs.10,45,872/- with interest
@7% per annum from the date of the application till its
realization, which includes NFL amount.
Respondents No.1 to 3 are jointly and severally liable
to pay compensation of Rs.10,45,872/- with interest @7% per
annum, including NFL amount from the date of the petition till
its realisation.
15. The Respondent No. 3 -the Insurance Company is
directed to deposit the aforesaid amount with the Registry of
this Court within 12 weeks and thereafter the appellants-
claimants are permitted to withdraw the same subject to the
payment of deficit court fee in this appeal and in the
proceedings before the Tribunal, if not already paid.
16. Appeal stands disposed of. No order as to costs.
JUDGE
MP Deshpande
