Bombay High Court

Divisional Controller, ... vs Rukmin Pandurang Shinde And Ors on 29 October, 2021

Bench: R. G. Avachat

                                        1           FA-534-2018.doc



             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                           FIRST APPEAL NO. 534 OF 2018

 Divisional Controller
 Maharashtra State Road Transport
 Corporation, Osmanabad
 (Owner of S.T. Bus No.MH-20-BL-0192)                  ... APPELLANT

          Versus

 1.       Rukmin w/o Pandurang Shinde
          Age: 36 years, Occu: Household,
          R/o Hinglajwadi, Tq. And Dist. Osmanabad

 2.       Pooja d/o Pandurang Shinde
          Age: 20 years, Occu: Education,
          R/o As above

 3.       Manisha d/o Pandurang Shinde
          Age: 18 years, Occu: Education,
          R/o As above

 4.       Kranti d/o Pandurang Shinde
          Age: 17 years, Occu: Education,
          R/o As above.

 5.       Kalpana d/o Pandurang Shinde
          Age: 15 years, Occu: Student,
          R/o As above

 6.       Ashok s/o Pandurang Shinde
          Age: 13 years, Occu: Student,
          R/o As above

 [Claimants no. 4 to 6 are minor u/g of
 their natural mother i.e. respondent no.1]




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 7.       Rohidas s/o Daula Shinde
          Age: 75 years, Occu: Nil,
          R/o As above

 8.       Gajrabai w/o Rohidas Shinde,
          Age: 70 years, Occu: Nil,
          R/o As above

 9.       Sunil Devidas Mule
          Age: 43 years, Occu: Business
          R/o Mulewadi, Tq. & Dist. Osmanabad
          (Owner of Tempo No. MH-25-P-1028)               ...RESPONDENTS

                                   ....
 Shri A. B. Dhongade, Advocate for appellant
 Shri M. B. Kolpe, Advocate for respondent Nos. 1 to 6
                                   ....

                                       CORAM : R. G. AVACHAT, J.

RESERVED ON : 26th JULY, 2021 PRONOUNCED ON : 29th OCTOBER, 2021

O R D E R :-

. This appeal has been directed against the judgment and

award dated 19.09.2017, passed by the Member, Motor Accident

Claims Tribunal (M.A.C.T.), Osmanabad, in Motor Accident Claim

Petition (M.A.C.P.) No. 195 of 2012. By the impugned judgment and

award, the Maharashtra State Road Transport Corporation

(M.S.R.T.C.), Osmanabad (appellant herein), has been directed to

pay the respondent Nos.1 to 8 (claimants) a sum of Rs.35,07,120/-

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towards compensation, including NFL amount, along with interest at

the rate 9% per annum from the date of filing of the M.A.C.P. to the

date of realisation of the entire amount. The M.S.R.T.C. has

therefore, preferred this appeal.

2. The facts giving rise to the present appeal, are as

follows:

Pandurang Rohidas Shinde (deceased) was driving his

tempo MH-25/P-1028 along Jamkhed - Ahmednagar road. It was

little past 3.30 a.m. on 24.10.2011. He was passing by Pandhari

Shivar (village). The S.T. bus driven in high speed, came from

opposite direction and dashed against the tempo. As a result,

Pandurang suffered multiple injuries and succumbed thereto.

The claimants filed a claim for compensation of

Rs.21,00,000/- (Rupees Twenty One Lakh). The Tribunal, after

appreciating the evidence in the case, passed the award granting

compensation of little over Rs.35,07,120/-.

3. Heard.

Shri A. B. Dhongade, learned Advocate appearing for the

appellant would submit that it was a deceased, who was driving his

tempo in rash and negligent manner. The First Informant Report

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(FIR) at first instance was lodged against the deceased. The accident

took place on the bridge. The S.T. bus had already cleared 80% of

the bridge. The tempo crossed the middle line of the road and

dashed against the S.T. bus. According to the learned Advocate, it is

a case of exclusive negligence on the part of the deceased or at least

a case of contributory negligence. On the question of quantum of

compensation, the learned Advocate would submit that there was no

evidence as regards income of the deceased. The deceased would ply

the tempo. His agricultural land, if any, on his demise, remained

with the claimants. On account of future prospects, addition is made

50% of the income of the deceased. It should have been 40%. On

account of loss of consortium, much more amount has been granted

than one prescribed. The learned Advocate, therefore, urged for

interference with the impugned judgment and award.

4. Learned Advocate for the claimants would, on the other

hand, submit that on due investigation, the police have charged the

bus driver to be responsible for the accident. The panchanama would

indicate break-marks 25 feet in length. The same indicates the speed

the S.T. bus was being driven at. According to the learned Advocate,

the deceased was the sole breadwinner of the family. The

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dependents are eight in number. According to him, no interference

with the impugned award is, therefore, warranted.

5. On due investigation of the crime, the charge-sheet has

been filed against the bus driver.

True, in the first instance, the FIR was registered against

the deceased. The same was filed at the instance of the bus driver

when the deceased and the other injured were in the hospital. The

bus driver appears to have lodged exculpatory report. It is reiterated

that on due investigation, the charge-sheet has been filed against the

bus driver. The panchanama (Exh.21) indicates a trail of break-

marks 25 feet in length. The same indicates the S.T. bus must have

been in high speed.

6. True, the spot of the accident appears to be at the middle

of the road. Both the vehicles, however, were not at the spot where

the accident took place. Since the investigating agency, on

investigation of the crime, filed charge-sheet against the bus driver

and there being no other material for this Court to take any other

view, it is to be stated that the deceased could not be attributed with

contributory negligence.



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7. On the question of quantum, it is to be stated that the

claimants had claimed compensation amounting to Rs.21,00,000/-.

It is true that while assessing just and adequate compensation, the

Tribunal may grant it in excess of what has been claimed in the

petition. The deceased was self employed. He was in transport

business. He would ply his tempo for hire. The Tribunal considered

his income as Rs.8,000/- per month. In addition thereto a sum of

Rs.50,000/- per annum has been considered as his income from

agriculture. The 7/12 extract of the land standing in the name of the

claimants on the demise of Pandurang has been placed on record

before this Court. I, therefore, propose to interfere with the assumed

income of the deceased. It, also, appears that towards future

prospects, the addition is made at 50% of the income of the

deceased. In view of the Constitution Bench judgment of the Apex

Court in the case of National Insurance Company Limited vs Pranay

Sethi and others - (2017) 16 SCC 680 , it should be 40%. Para 59.4

of the said judgment, is reproduced here for ready reference:

"59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10%

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where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

8. Moreover, under conventional heads and particularly for

loss of consortium or love and affection, the widow and children of

deceased have been granted Rs.1,00,000/- (Rupees One Lakh) each.

In para 52 of the Pranay Sethi's judgment (supra), it has been

observed thus:

"52. ............. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000/- and Rs.15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads."

9. In view of the above, interference with the impugned

award is called for. The amount of compensation, payable to the

claimants is, therefore, worked out as under:

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Annual income of the deceased from transport business

was Rs.96,000/- (8000 X 12). Since, on the demise of the deceased,

his agricultural land remained with the family. His annual income

from agricultural land (loss of supervision charges)is considered at

Rs.10,000/- instead of Rs.50,000/-. Therefore, his total annual

income comes to Rs.1,06,000/-(96,000+10,000). On account of

future prospects 40% is added thereto. After adding 40%, it comes to

Rs.1,48,400/-(1,06,000+40% i.e. 42400). Considering the number

of dependents, 1/5th thereof is deducted towards personal living

expenses. As such, annual loss of dependency comes to

Rs.1,18,720/- (1,48,400 - 29,680). Applying the multiplier of 16

thereto, it comes to Rs.18,99,520/- (1,18,720 X 16). Rs.30,000/- are

awarded towards funeral expenses and loss of estate. Each of the

claimant is awarded a sum of Rs.40,000/- towards loss of

consortium. It comes to Rs.3,20,000/- (40,000 X 8), besides a sum of

Rs.25,000/- towards medical expenses.

10. As such, total amount of compensation payable to the

respondents-claimants comes to Rs. 22,74,520/-.


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11. In view of the above, the appeal is partly allowed in

terms of following order:-

ORDER

(i) The amount of compensation awarded by the Tribunal is scaled down from Rs. 35,07,120 to Rs.22,74,520/-. No change in the rate of interest awarded.

(ii) The amount of compensation be paid to the respondents-claimants, equally.

(iii) The amount of compensation payable to the minor claimant be kept in fixed deposit until attainment of age of majority.

(iv) The amount in deposit be paid to the claimants with interest accrued thereon. Balance amount be paid back to the M.S.R.T.C. with interest accrued thereon.