Shashikalabai Govinda Khose And ... vs Ramshankar Malkani And Ors
2021 Latest Caselaw 5034 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                        FIRST APPEAL NO.807 OF 2015

1.      Smt. Shashikalabai w/o. Govinda Khose,
        Age 42 years, Occu. Household,
        R/o. Rahimabad, Taluka Sillod,
        District Aurangabad.

2.      Kum. Bhagyashri d/o. Govinda Khose,
        Age 19 years, R/o. As above.

3.      Balaji s/o. Govinda Khose,
        Age 15 years, Occu. Student,
        R/o. As above.

4.      Bhujangrao s/o. Govinda Khose,
        Age 74 years, Occu. Nil, R/o. As above.

5.      Dagadabi w/o. Bhujangrao Khose,
        Age 69 years, Occu. Household,
        R/o. As above.
        [Claimant No.3 is under guardian of
        claimant No.1 being the mother].          ..       Appellants
                                                       (Original claimants)
                 Versus

1.      Ramshankar Malkani,
        Age 49 years, Occu. Owner,
        R/o. House No. 27, Shivaji Nagar,
        Behind D. N. Nagar, Andheri (West),
        Mumbai - 58.

1-A. Mange Mukesh Umarshi,
     Age 44 years, Occu. Owner and
     Business, R/o. Nazir Hameed Chawal,
     Parshiwadi Ghatcoper (West),
     Mumbai - 86

2.      Sanjay Shivaji Bhosle,
        Age 34 years, Occu. Driver,
        R/o. As above.                            ..       Respondents
                                                   (Original Respondents)
                                ...
Mr. V. D. Patnoorkar, Advocate for Appellants
Mr. S. V. Chapalgaonkar, Advocate for Respondents
                                ...


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                                      CORAM : ANIL S. KILOR, J.

                                      DATE      :     19th MARCH, 2021

JUDGMENT :-

This appeal has been fled by the claimants in

accident claim, questioning the correctness of the judgment and

order dated 24-12-2007 passed by the learned Member, Motor

Accident Claims Tribunal and Ad-hoc District Judge-2,

Aurangabad, in Motor Accident Claim No. 196 of 2004 holding the

claimants entitled for compensation of Rs.2,00,000/-. Learned

Tribunal further held that respondents no. 1 to 3 jointly and

severally to pay the amount of compensation.

2. I have heard respective learned counsels for the

parties.

3. Brief facts of the present case are that -

The son of claimant no. 1 Shashikalabai w/o. Govinda

Khose died in accident. It is the case of the claimants that

deceased Govinda was serving in a private company as driver on

a dumper. The accident took place on 07-01-2004 at 5.00 p.m.

on Pune to Benglore Highway. It is the further case of the

claimants that due to dash given by Tata sumo driver, the

deceased thrown out of the dumper cabin and sustained multiple

injuries and died on the spot.

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4. The learned Tribunal, after considering the evidence

led by the claimants, arrived at the conclusion that there was

contributory negligence on the part of deceased and driver of the

vehicle Sumo. As far as contributory negligence relating to

deceased is concerned, it was fied to the eitent of 70% and

30% of the driver of the sumo.

5. The said fnding has been given by the learned

Tribunal, after considering the facts and situation at the time of

accident which has come on record in the evidence. Therefore, I

do not fnd any error in the said fnding. In the said back drop,

the contention raised by the learned counsel for the appellants

that the learned Tribunal ought to have held that both the drivers

i.e. deceased and driver of the sumo are negligent to the eitent

50% to 50 %, cannot be accepted and the same is rejected.

6. The other contention of the learned counsel for the

appellants fnd substance that the learned Tribunal has not

granted amount towards future prospects. Moreover the amount

of Rs.15,000/- granted towards funeral eipenses, loss of

consortium and loss of love and afection is also not granted as

per the settled position of law.

7. In the present matter, there is no dispute that on the

date of accident, deceased was age of 45 years and he was in

private employment, and accordingly, as per Judgment of the

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Honourable Supreme Court of India, in the case of National

Insurance Company Limited Versus Pranay Sethi 1, it is held

that the claimants are entitled for additional 25% of the

established income towards future prospects. Moreover, amount

under conventional heads, namely, loss of estate, consortium

and funeral eipenses Rs.15,000/- + Rs.40,000/- + Rs.15,000/-

respectively, is required to be granted at the above rates.

8. In view of the observations made above, the

impugned judgment and award is modifed as per the chart given

hereinbelow :-

A)      25% future prospects                                     Rs. 46,250/-

B)      Rs.70,000/- towards conventional heads Rs. 55,000/-
        namely loss of estate, consortium and

funeral eipenses (after deducting the amount already received Rs.15,000/-)

Total (A+B) :- Rs.1,01,250/-

9. Accordingly, the appeal is partly allowed.

10. The claimants are entitled to total sum of

Rs.1,01,250/- including amount towards conventional heads

namely loss of estate, consortium and funeral eipenses and

interest at the rate of 9% from the date of fling of the claim

petition till its realization.

1 (2017) 16 SCC 680



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11. The appellants are entitled to receive enhance

amount of compensation, subject to condition that the appellants

shall pay stamp duty as applicable, on the enhance amount,

within a period of eight weeks from the date of judgment.

12. No order as to costs.

( ANIL S. KILOR ) JUDGE

rrd