Bombay High Court

United India Insurance Co. Ltd. ... vs Manda @Pushpa Vishnu Gund And Ors on 5 October, 2021

Bench: R. G. Avachat

                                                                      FA-116-2006.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                             FIRST APPEAL NO.116 OF 2006
                                        AND
                           CIVIL APPLICATION NO.363 OF 2006

United India Insurance Co. Ltd.,
Through it's Divisional Manager and
authorised representative and signatory
Ahmednagar Divisional Officer,
Kisan Kranti Building, Ahmednagar                            ..Appellant

                Vs.

1.      Manda @ Pushpa Vishnu Gund,
        Age:26 years, Occ. Household,

2.      Akshya Vishnu Gund,
        Age:9 years , Occ. Education,

3.      Abhijit Vishnu Gund,
        Age : 5 years, Occ. Education,

4.      Yamunabai Chagan Gund,
        Occ. Household

        Resp Nos.2 and 3-through Minor
        Guardian mother-respondent no.1
        Respondent Nos.1 to 4
        r/o. Bhenda Factory, Landewadi,
        Tq. Newasa, Dist. Ahmednagar

5.      Kumar Brijlal Bhikchandan
        Age:Major, Occ. Transport,
        r/o. Ward No.7, Shrirampur,
        Dist. Ahmednagar                                     ..Respondents

                                 ----
Mr.A.B.Gatne, Advocate for appellant
Mr.A.Y.Pandule, Advocate for respondent nos.1 to 4




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                                                  2                                  FA-116-2006




                                      CORAM : R.G. AVACHAT, J.

DATE : OCTOBER 05, 2021 JUDGMENT :-

This is an insurance company's appeal challenging the

judgment and award granting compensation on account of death in a

vehicular accident. Basically, the challenge is to the quantum of

compensation.

2. The Tribunal awarded compensation amounting to

Rs.7,14,352/- inclusive of the amount awarded under no fault

liability claim. It is the case of the respondents/claimants that the

deceased-Vishnu was serving with Dnyaneshwar Sugar Factory. The

nature of his employment was seasonal permanent. The deceased

would, therefore, work as Mathadi Kamgar.

3. The Tribunal, after considering income of the deceased

from his salary as seasonal employee with the sugar factory and

income as Mathadi Kamgar, has awarded compensation applying

multiplier of 16.

4. Learned counsel for the appellant/insurance company

would submit that the Tribunal erred in considering the consolidated

3 FA-116-2006

income of the deceased; one in the nature of his salary paid by the

sugar factory and other, in the nature of his income from serving as

Mathadi Kamgar. Learned counsel would further submit that it was

just impossible for the deceased to simultaneously serve with the

sugar factory and work as Mathadi Kamgar also. He would further

submit that the deceased was 36 years of age. The multiplier

applicable would, therefore, be of 15. The Tribunal erred in applying

the multiplier of 16. Learned counsel, therefore, urged for reduction

of the amount of compensation. According to him, the salaried

income of the deceased should alone be considered for granting

compensation.

5. Perused the impugned judgment and award. Gone

through the relevant evidence. It has been specifically averred by

the claimants in the claim petition that the deceased was 36 years of

age. He would earn Rs.4708/- per month from salary besides

Rs.1200/- per month from Mathadi service. In proof of their claim,

two witnesses were examined besides one of the claimants. It is in

the evidence of witness no.3 - Maruti that the deceased was in

service with Dnyaneshwar Sugar Factory. His salary was Rs.4708/-.

He tendered in evidence a certificate indicating annual salary of the

4 FA-116-2006

deceased for the period from April, 2000 to March, 2001. As per the

said certificate, the deceased was paid Rs.37,232/- towards salary

for a period of eight months of the said year. It has also been

mentioned in the certificate that the nature of his employment was

seasonal permanent. It further appears that the sugar factory used

to be closed for at least 4-5 months in a year. The deceased was

paid Rs.10,021/- towards retention allowance besides a sum of

Rs.5,115/- towards bonus. As such, his total income was

Rs.52,368/-. Witness - Maruti was not subjected to detail cross-

examination. The entire text of his cross-examination is as under :-

                       "     It is true to say that Shri Gund was not
                       permanent employee of the factory. He was
                       the seasonal employee.       Today I have not

brought the original record. It is not true to say that I have submitted false information."

There is nothing in the evidence of this witness to suggest that a

seasonally permanent employee of the sugar factory is prohibited

from serving elsewhere or to work to earn during the period the

factory used to be closed. It has, therefore, to be taken that a

person who gets work for not more than 7-8 months in a year, would

necessarily work somewhere else to earn more. There is nothing in

5 FA-116-2006

the evidence of witness - Maruti that a seasonally permanent

employee was required to report duty at his work place even during

the period the factory would remain closed. There was, therefore,

nothing wrong on the part of the deceased to work as a Mathadi

Kamgar also.

6. Witness no.2 - Dnyaneshwar was examined in proof of

the income of the deceased serving as Mathadi Kamgar. It is in the

evidence of this witness that the deceased was working as labour.

His salary and payment would depend on the nature of work and

workload. He tendered in evidence a certificate (Exh.33). It is

evident therefrom that the average annual income of the deceased

as Mathadi Kamgar was Rs.12,896/-. This witness no.2 was not

subjected to extensive cross-examination. What has been deposed

to by this witness in his cross-examination is, therefore, reproduced

below:-

" I have not produced on record authority letter to depose but I am deposing in the capacity as Accountant. It is true to say that there was no fixed salary of the deceased employee."

Although this witness did not produce authority letter to give

evidence in the case, what has been deposed to by him in the

6 FA-116-2006

examination-in-chief, has not been taken exception to. This witness

was none other than the Accountant serving with Ahmednagar

Mathadi and Unsecured Labour Board. It, therefore, cannot be

assumed that the certificate (Exh.33) is an untrue document. As

such, the fact remains that the deceased had two sources of income;

one from serving as a seasonal employee with the sugar factory and

other from serving as a Mathadi Kamgar. This Court, therefore, did

not find any reason to interfere with the Tribunal's considering

income of the deceased from both the sources to work out the

amount of compensation.

7. True, the Tribunal applied multiplier of 16. The deceased

was said to be 36 years of age. In terms of the judgment in the

case of Sarla Verma (Smt) and others Vs. Delhi Transport

Corporation and another, (2009)6 SCC 121, the multiplier in case of

death in the age group of 36-40 shall be 15. It may, therefore,

appear that the amount of compensation awarded by the Tribunal

needs to be reduced. Close reading of the impugned award would

indicate that nothing has been awarded towards future prospects.

Under the conventional heads, such as, loss of consortium, love and

affection, mental agony, etc., a sum of Rs.15,000/- and for funeral

7 FA-116-2006

expenses, a sum of Rs.3,000/- have been awarded. The claimants

were widow, mother and two minor children of the deceased. In

view of the Constitution Bench judgment of the Apex Court in the

case of National Insurance Company Ltd. Vs. Pranay Sethi and ors.,

(2017)16 SCC 680 and the judgment in the case of Magma General

Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and ors.,

(2018)18 SCC 130, each of the claimants is entitled to have

Rs.40,000/- towards loss of love and affection. They are also

entitled to receive Rs.30,000/- towards funeral expenses and loss of

estate, but, for want of an appeal or a cross-objection for

enhancement of compensation awarded by the Tribunal.

8. In the case of Ranjana Prakash and ors. Vs. Divisional

Manager and anr., 2012 AIR SCW 848, it has been observed by the

Apex Court thus:-

" ....... It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-

objection."

8 FA-116-2006

As such, even if the Tribunal has erred in applying a wrong

multiplier, there would, ultimately, be no reduction in the amount of

compensation awarded by the Tribunal. Even for the sake of

assumption, if we accept the contention of learned counsel for the

appellant-insurance company that the income of the deceased as

Mathadi Kamgar should be ignored, there would be no reduction in

the amount of compensation granted under the impugned award, for

the very reason that the claimants would show that the Tribunal

erred in not granting them compensation towards future prospects

and for loss of love and affection in terms of the judgment in the

case of Pranay Sethi (Supra).