Bombay High Court

Jakiya Khalik Lmujawar And Anr vs Associated Road Carries Ltd ... on 20 October, 2021

Bench: R. G. Avachat

                                             First Appeal No.1798/2010 with
                                                  First Appeal No.1799/2010
                                  :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                       FIRST APPEAL NO.1798 OF 2010


 Ajim s/o Shaikh Rasul Mujawar
 Age 44 years, Occ. Nil,
 R/o Chausala, Taluka and
 District Beed                              ... APPELLANT

          VERSUS

 1.       Associated Road Carriers Ltd.,
          through K. Mittal,
          Plot No.3, Block No.34, Road No.1,
          Ranga Reddy (Andhra Pradesh)

 2.       National Insurance Co. Ltd.,
          373 and 375 A, Cneno Trade Centre,
          Park Lane, Secundarabad, Hyderabad
          Andhra Pradesh - 500 005
          summons to be served through
          Branch Manager, Hazari Chambers,
          Station Road, Aurangabad

 3.       Jalil s/o Rasul Mujawar,
          Age major, Occ. Business,
          R/o Chausala, Taluka and
          District Beed.

 4.       The New India Assurance Co. Ltd,
          through its Divisional Manager,
          Mahesh Auto Compound,
          Adalat Road, Aurangabad                 ... RESPONDENTS

                                .......
 Shri   S.S. Dargad, Advocate holding for
 Shri   S.G. Chapalgaonkar, Advocate for appellant
 Shri   V.N. Upadhye, Advocate for respondent No.2.
 Shri   M.M. Ambhore, Advocate for respondent No.4
                                 .....

                                  WITH




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                                             First Appeal No.1798/2010 with
                                                 First Appeal No.1799/2010
                                  :: 2 ::


                       FIRST APPEAL NO.1799 OF 2010


 1.       Jakiya w/o Khalik Mujawar,
          Age 37 years, Occ. Household,
          R/o Chausala, Taluka and
          District Beed.

 2.       Khalil s/o Mohmad Mujawar,
          Age 42 years, Occu. Business,
          R/o as above.                          ... APPELLANTS

          VERSUS

 1.       Associated Road Carriers Ltd.,
          through K. Mittal,
          Plot No.3, Block No.34, Road No.1,
          Ranga Reddy (Andhra Pradesh)

 2.       National Insurance Co. Ltd.,
          373 and 375 A, Cneno Trade Centre,
          Park Lane, Secundarabad, Hyderabad
          Andhra Pradesh - 500 005
          summons to be served through
          Branch Manager, Hazari Chambers,
          Station Road, Aurangabad

 3.       Jalil s/o Rasul Mujawar,
          Age major, Occ. Business,
          R/o Chausala, Taluka and
          District Beed.

 4.       The New India Assurance Co. Ltd,
          through its Divisional Manager,
          Mahesh Auto Compound,
          Adalat Road, Aurangabad                ... RESPONDENTS


                                .......
 Shri   S.S. Dargad, Advocate holding for
 Shri   S.G. Chapalgaonkar, Advocate for appellants
 Shri   V.N. Upadhye, Advocate for respondent No.2.
 Shri   M.M. Ambhore, Advocate for respondent No.4
                                .......




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                                               First Appeal No.1798/2010 with
                                                   First Appeal No.1799/2010
                                   :: 3 ::


                               CORAM :       R. G. AVACHAT, J.
                  Date of reserving judgment : 7th September, 2021
                  Date of reserving judgment : 20th October, 2021

 JUDGMENT:

Both these appeals are being decided by this

common judgment since the appeals are interconnected.

2. The challenge in both the appeals is to the

common judgment and award dated 7/7/2010, passed by

Motor Accident Claims Tribunal (MACT), Beed in Motor

Accident Claim Petitions (MACP) No.189/2008 and 191/2008.

The appellants herein were the claimants in the MACPs before

the Tribunal.

FACTS :-

3. The jeep bearing registration No.MH-16/C-1944

met with the accident on 11/4/2008. Deceased Mohseen and

deceased Mudassar along with others were traveling in the ill-

fated jeep. As a result of the accident, both the deceased and

others in the jeep suffered multiple injuries. Both the

deceased and one more inmate in the jeep died as a result of

the injuries suffered in the said accident. The legal

First Appeal No.1798/2010 with First Appeal No.1799/2010 :: 4 ::

representatives of all the three deceased, therefore, preferred

three separate claim petitions for compensation. The MACT

allowed those petitions. Two of the judgments and awards

passed by the Tribunal in those three claim petitions are

under challenge in these appeals.

4. Heard. Shri Dargad, learned counsel holding for

Shri Chapalgaonkar, learned counsel for the appellants would

submit that, in case of First Appeal lNo.1798/2010 deceased

Mohseen was a professional driver. His driving licence in the

'transport' category was tendered in evidence. The Tribunal,

therefore, ought to have considered his monthly income at

Rs.4500/-. The Tribunal has not awarded compensation for

future prospects. A multiplier has been applied on the age of

the claimant.

5. In case of First Appeal No.1799/2010, the learned

counsel would submit that, the deceased was a businessman,

earning Rs.7000/- per month. The Tribunal, however,

considered his notional income at Rs.3000/-. Nothing has

been awarded towards future prospects. Wrong multiplier has

been applied. He, therefore, urged for allowing the appeals.

First Appeal No.1798/2010 with First Appeal No.1799/2010 :: 5 ::

6. Shri Upadhye, learned counsel for the respondent

Insurance Company would submit that, the accident took

place on the bridge. It was head-on collision. The F.I.R. has

been lodged by the relative of the deceased. 50% of the

contributory negligence is attributable to the jeep driver. The

learned counsel would submit that, for challenging the

findings on the issues, the Insurance Company is not required

to prefer any appeal or cross-objection. He relied on the

judgment of the Apex Court in the case of Shri Saurav Jain &

anr. Vs. M/s A.B.P. Design & anr. [2021 STPL 7106 SC]. The

learned counsel, therefore, first urged for dismissal of the

appeals and in the alternative, submitted that the deceased

driver of the jeep be held equally responsible and accordingly

liability may be apportioned.

7. Learned counsel would submit that, the decision of

the Constitution Bench of the Hon'ble Supreme Court in case

of National Insurance Company Limited Vs. Pranay Sethi &

ors. [ (2017) 16 SCC 680 ] will have precedence over the

judgment in the case of Magma General Insurance Company

Limited Vs. Nanu Ram Alias Chuhru Ram & ors., [ (2018) 18

SCC 130].

First Appeal No.1798/2010 with First Appeal No.1799/2010 :: 6 ::

8. Considered the rival submissions. Perused the

impugned judgment and awards. Gone through the relevant

evidence. True, the accident took place on the bridge. The

Tribunal has, however, after having appreciated the scene of

accident panchanama, held it to be a case of exclusive

negligence on the part of the truck driver. On due

investigation, the police has charged the truck driver for being

responsible to the accident. Furthermore, in another claim

petition arising out of the same accident, the Tribunal has

given same finding, holding the truck driver to be exclusively

negligent. The respondent Insurance Company has not

challenged the said judgment and award. As such, the said

judgment has attained finality inter-se the owner, driver and

the Insurance Company of both the vehicles involved in the

said accident. Learned counsel for the Insurance Company,

therefore, could not be heard in these appeals to say that the

driver of the jeep be held contributory negligent.

QUANTUM OF COMPENSATION :-

9. The Tribunal, while working out the quantum of

compensation, has not granted anything towards future

prospects. Multiplier has been applied considering the age of

the claimants. In case of deceased Mohseen (First Appeal

First Appeal No.1798/2010 with First Appeal No.1799/2010 :: 7 ::

No.1798/2010), he was a professional driver. His driving

licence for transport category was placed on record. His

notional income, therefore, ought to have been considered at

Rs.4500/-. So far as regards other claim is concerned (First

Appeal No.1799/2010), for want of concrete evidence, the

Tribunal has rightly considered his notional income at

Rs.3000/- per month. Instead of scrutinising the reasons

given by the Tribunal, suffice it to say that, the appellants

deserve enhancement in the amount of compensation. The

same needs to be worked out in the light of the Constitution

Bench judgment of the Hon'ble Supreme Court in case of

Pranay Sethi (supra).

10. In First Appeal No.1798/2010, the notional income

of the deceased is considered at Rs.4500/-. As such, his

annual income comes to Rs.54,000/-. After adding 40%

towards future prospects, the annual income comes to

Rs.75,600/-. Since the father is the only dependent of the

deceased, 50% of the income is deducted towards personal

and living expenses of the deceased. In the light of judgment

in case of Sarla Varma, the multiplier of 18 is applied. Total

amount of compensation on account of loss of dependency

comes to Rs.6,80,400/-. Towards loss of love and affection, a

First Appeal No.1798/2010 with First Appeal No.1799/2010 :: 8 ::

sum of Rs.40,000/- is awarded besides Rs.30,000/- towards

loss of estate and funeral expenses. Thus, the total comes to

Rs.7,50,400/-. The claimant- appellant, however, shall not be

entitled to component of interest on the amount of

Rs.70,000/- granted towards loss of love and affection and

loss of estate and funeral expenses.

11. In First Appeal No.1799/2010, the notional income

of the deceased is Rs.3000/-. As such, his annual income

comes to Rs.36,000/-. After adding 40% towards future

prospects, the annual income comes to Rs.50,400/-. 50% of

the income is deducted towards personal and living expenses

of the deceased. As such, the annual income comes to

Rs.25,200/-. in the light of judgment in case of Sarla Verma

(Smt.) & ors. Vs. Delhi Transport Corporation & anr. [ (2009)

6 SCC 121], the multiplier of 18 is applied, the total amount

of compensation comes to Rs.4,53,600/-.

                    For   loss   of   love   and      affection,      a    sum       of

 Rs.40,000/- is granted to each of the claimants.                              While

Rs.30,000/- is awarded on account of loss of estate and

funeral expenses. Thus, the total comes to Rs.5,63,600/-.

The claimants- appellants, however, shall not be entitled to

First Appeal No.1798/2010 with First Appeal No.1799/2010 :: 9 ::

component of interest on the amount of Rs.1,10,000/-

granted towards loss of love and affection and loss of estate

and funeral expenses.

12. In view of the above, the appeals partly succeed

in terms of the following order :

ORDER

(i) Both the Appeals are partly allowed.

(ii) The award passed in Motor Accident Claim Petition