United India Insurance Co Ltd. ... vs Chandar Sena Tak And Anr
2021 Latest Caselaw 14907 Bom

                                                 First Appeal No.117/2006
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                               BENCH AT AURANGABAD



                    FIRST APPEAL NO.117 OF 2006 WITH
                    CIVIL APPLICATION NO.364 OF 2006



 United India Insurance Co. Ltd.,
 through its Divisional Manager and
 Authorised Representative and
 Signatory, Jalgaon Divisional Office,
 Mansing Market, Opposite Atul Dairy,
 Jalgaon                                        ... APPELLANT


          VERSUS


 1.       Chandar Senya Tak,
          Died through L.R.


 1-A. Shri Anil Chandar Tak
      Age 43 years, Occu. Labourer,
      R/o Room No.72, Walmikinagar,
      At Bhusawal, Tal. Bhusawal,
      District Jalgaon


 2.       Jabbar Haji Gulab Bagwan,
          Age major, R/o Mullawada,
          Lane No.2, Dhule, Dist. Dhule         ... RESPONDENTS


                              .......
 Shri A.B. Gatne, Advocate for appellant
 Shri M.R. Malpani, Advocate holding for
 Shri A.B. Kale, Advocate for respondent No.1-A
                               .......




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                                                     First Appeal No.117/2006
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                               CORAM :        R. G. AVACHAT, J.

                  Date of reserving judgment : 5th October, 2021
                  Date of pronouncing judgment : 12th October, 2021


 JUDGMENT :

This is Insurance Company's appeal, challenging

the judgment and award dated 11/10/2005, passed by

Member, Motor Accident Claims Tribunal, Jalgaon in Motor

Accident Claim Petition No.495/2001. Under the impugned

judgment and award, a sum of Rs.4,12,500/- along with

interest @ 9% p.a. has been awarded as compensation on

account of death in a vehicular accident.

2. Facts leading to filing of the present appeal are as

follows :-

Late Dilip @ Ravi was the son of claimant. He was

27 years of age. The deceased was working as Hamal. It so

happened that, on 25/11/2019, the deceased Dilip along with

his cousin namely Shrawan was on his way on motorbike

bearing No.MH-19/F-1363. While they were proceeding along

Mumbai-Agra Road within the limits of Malegaon, a truck

bearing No.MH-18/E-7618 (No.MH-18/A-7618) knocked them

First Appeal No.117/2006 :: 3 ::

down. As a result, Dilip suffered multiple injuries and

succumbed thereto. His father, therefore, filed the claim

petition for compensation.

3. The Tribunal assumed the income of the deceased

notionally at Rs.3000/- per month and granted compensation

as stated above.

4. Heard. Learned counsel for the appellant

Insurance Company would submit that, the truck involved in

the accident was bearing Registration No.MH-18/A-7618.

The very number had been figured in the F.I.R. and scene of

accident panchanama. All of a sudden, the said number came

to be changed to No.MH-18/E-7618. The number might have

been replaced only with a view to earn compensation from the

appellant Insurance Company since the truck bearing No.MH-

18/E-7618 had an insurance cover granted by the appellant

Insurance Company. Learned counsel would further submit

that, the investigating officer has not been examined to shed

light on this aspect of the matter. In support of his

contention, he placed reliance on the judgment of the Apex

Court in case of Nepal Singh Vs. Upender Singh [ (2008) 7

SCC 334 ].

First Appeal No.117/2006 :: 4 ::

5. On the question of quantum of compensation,

learned counsel would submit that, the accident dates back to

the year 1999. The deceased was a Hamal. There was no

concrete evidence as regards to income of the deceased. The

Tribunal, therefore, ought to have considered it at Rs.50/- per

day. According to learned counsel, the amount of

compensation awarded is very much on higher side. He,

therefore, urged for allowing the appeal.

6. Learned counsel for the respondent No.1 -

claimant would, on the other hand, submit that, it was a

mistake in recording the truck number in police papers. The

investigating officer has duly rectified it. No other person had

come forward to claim ownership of the said vehicle. The

petition was accordingly amended. The amendment relates

back to the date of filing of the petition. The appellant

Insurance Company, therefore, could not have a quarrel over

number of the vehicle since one and the same was involved in

the accident.

7. On the question of quantum of compensation, the

learned counsel would submit that, the deceased was the sole

First Appeal No.117/2006 :: 5 ::

bread winner of the family. The Tribunal has rightly quantified

the amount of compensation. He, therefore, urged for

dismissal of the appeal.

8. It is true that, deceased Dilip died in an accident

involving motorbike bearing No.MH-19/F-1363 and the truck

on 25/11/1999. The question is whether it was a truck

bearing No.MH-18/A-7618. Admittedly, the truck No.MH-18/E-

7618 had an insurance cover granted by the appellant

Insurance Company. If it is held that the said truck was not

involved in the accident, but it was MH-18/A-7618, then the

appellant Insurance Company would not have a liability to pay

compensation.

9. The record indicates that, the investigating officer

made corrections in the police papers changing the number of

the truck from No.MH-18/A-7618 to No.MH-18/E-7618.

Without going into the factual matrix in the record, suffice it

to say that, in the said accident, two persons lost their lives.

One is Dilip and second one is Dilip's cousin Shrawan. The

record indicates that, parents and siblings of Shrawan had

also preferred a petition for compensation. The said petition

has been allowed directing the appellant Insurance Company

First Appeal No.117/2006 :: 6 ::

and the owner of the truck to pay jointly and severally the

amount of compensation. It appears that, the appellant

Insurance Company has not challenged the said award. As

such, the Insurance Company is estopped from contending

that the truck involved in the accident was not MH-18/E-7618

but, was MH-18/A-7618.

QUANTUM OF COMPENSATION:

10. The petition was filed by the father of deceased

alone. It has been specifically averred in the claim petition

that the deceased was 27 years of age, earning Rs.2000/- per

month. The claimant, therefore, cannot travel beyond the

pleadings to contend that the deceased would earn Rs.3000/-

per month. The Tribunal too ought not to have considered the

notional income of the deceased at Rs.3000/- per month.

Since the claim petition was filed by the father alone and

there being no other dependents on the deceased, the

Tribunal ought to have deducted 50% of the income of the

deceased towards his personal and living expenses. The

Constitution Bench judgment of the Apex Court in case of

National Insurance Company Limited Vs. Pranay Sethi and

others [ (2017) 16 SCC 680 ] came into field post the

impugned award was passed. Since the appeal is

First Appeal No.117/2006 :: 7 ::

continuation of the original proceedings, the grant of

compensation, therefore, needs to be governed in the light of

directions in Pranay Sethi's case (supra). This Court,

therefore, proposes to work out the compensation as under :

11. The monthly income of the deceased is taken into

consideration as Rs.2000/-. As such, the annual income of

the deceased comes to Rs.24,000/-. Adding 40% of the

income towards future prospects, the annual income of the

deceased comes to Rs.9600/-. As such, the total annual

income of the deceased comes to Rs.33,600/-. 50% thereof

is deducted towards personal and living expenses of the

deceased. As such, the total yearly dependency comes to

Rs.16,800/-. Considering the age of the deceased at 27

years, the multiplier of 17 is applied considering the ratio laid

down by the Apex Court in case of Sarla Verma. The amount

of compensation on account of loss of dependency comes to

Rs.2,85,600/-. Amount of Rs.70,000/- is granted towards

loss of love and affection, loss of estate and funeral

expenses. This way, the total amount of of compensation

comes to Rs.3,55,600/-. This Court, does not propose to

scale down the rate of interest of 9% p.a. awarded by the

Tribunal although it appears to be on higher side. In the

First Appeal No.117/2006 :: 8 ::

result, the appeal partly succeeds. Hence the order :-

ORDER

(i) The appeal is partly allowed. The award dated

11/10/2005, passed by Member, Motor Accident Claims

Tribunal, Jalgaon in Motor Accident Claim Petition

No.495/2001 is modified, reducing the amount of

compensation from Rs.4,12,500/- to Rs.3,55,600/-. Rest of

the terms of the impugned award to stand unaltered.

(ii) The amount in deposit with this Court/ Tribunal be

paid to the claimant along with interest accrued thereon

immediately in terms of the modified award. The balance

amount be paid back to the appellant Insurance Company

along with interest accrued thereon.

(iii) In view of disposal of the First Appeal, Civil

Application stands disposed of.

( R. G. AVACHAT ) JUDGE

fmp/-