Bombay High Court

Nandkukar Kishanrao Dudhewar And ... vs Babu Bhiwaji Mantri And Ors on 6 September, 2021

Bench: R. G. Avachat

                                                  First Appeal No.2476/2010
                                   :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                       FIRST APPEAL NO.2476 OF 2010


 1.       Nandkumar s/o Kishanrao Dudhewar,
          age 53 years, Occu. Service,
          R/o Umarkhed, Tqa. Umarkhed,
          District Yeotmal

 2.       Bhagirathibai w/o Kishanrao Dudhewar
          (Abated as Dead)                 ... APPELLANTS

                  VERSUS

 1.       Babu s/o Bhiwaji Mantri,
          Age years, Occu.
          R/o Nagewadi, Tq. & Dist. Jalna

 2.       Dr. Gopikishan s/o Mangilal
          Bangad, Age major, Occu. Doctor,
          R/o partur, Tq. Partur, Dist. Jalna

 3.       United India Insurance Co. Ltd.
          through its Branch Manager
          Parbhani, Dist. Parbhani                ... RESPONDENTS

                              .......
 Shri Sachin S. Deshmukh, Advocate for appellants
 Shri V.P. golewar, Advocate for respondents No.1 and 2
 Shri S.G. Chapalgaonkar, Advocate for respondent No.3.
                               .......
                               CORAM :       R. G. AVACHAT, J.
                               DATE :        6th September, 2021
 ORDER:

This is an appeal under Section 173 of the Motor

Vehicles Act. The appeal has been preferred by the original

claimants for enhancement of compensation granted by the

First Appeal No.2476/2010 :: 2 ::

Chairman, Motor Accident Claims Tribunal, Parbhani vide

judgment and order dated 30/6/2009, passed in Motor

Accident Claim Petition No.15/1990. The appellants have

been granted compensation amounting to Rs.1,05,000/-, to

be paid within 30 days from the date of impugned award, lest

it shall carry interest @ 6% p.a. till realisation of the entire

amount. This appeal has, therefore, been filed both for

enhancement of quantum of compensation and grant of

interest from the date of petition to the date of realisation of

the amount.

2. The appeal has a chequered history. Deceased

Kisanrao died in an accident involving motor vehicle on

28/8/1989. It so happened that, the deceased along with his

friend and family members of both of them were on way to

Pandharpur in ill-flated jeep- MXV-4721. The jeep belonged

to the respondent No.2 herein, a friend of the deceased. The

jeep was said to have been borrowed for pilgrimage. On the

way to Pandharpur, a rear wheel of the jeep got dislocated all

of a sudden. As a result, the deceased was thrown out of the

jeep. He suffered multiple injuries. He was rushed to the

hospital, but declared dead on admission.

First Appeal No.2476/2010 :: 3 ::

3. The widow and the son (original petitioners),

therefore, preferred the claim petition for compensation. The

Tribunal allowed it on 19/10/1992, awarding compensation of

Rs.35,000/- with interest @ 12% p.a. The respondent

Insurance Company, however, was absolved of its liability.

The claimants, therefore, preferred appeal against the

judgment and award dated 19/10/1992. Cross-objections

were also preferred in the said appeal by original respondents

No.1 and 2. This Court, vide order dated 10/2/2009, allowed

the appeal, remanding the matter back to the Tribunal to

decide it afresh. The Tribunal thereafter allowed the petition,

granting the appellants herein compensation of Rs.1,05,000/-

to be paid within a period of 30 days, lest it shall carry

interest @ 6% p.a.

4. Heard. Shri Sachin S. Deshmukh, learned counsel

for the appellants would submit that, the deceased was a

pensioner of 59 years of age. The deceased was agriculturist

by profession post retirement. He was also an estate agent.

Monthly income of the deceased was Rs.3000/-. The petition

was filed by the widow and a minor son. The widow passed

away six years after filing of the claim petition. The amount

of compensation has been granted without application of the

First Appeal No.2476/2010 :: 4 ::

set formula. Nothing has been awarded towards future

prospects and under other conventional heads as well. The

learned counsel, therefore, urged for grant of just

compensation.

5. Shri Chapalgaonkar, learned counsel for the

respondent Insurance Company would, on the other hand,

submit that, the deceased was pensioner. His widow passed

away pending the claim petition. Within a few years, the son

became major. As such, the dependency of the son did not

last for more than six years. According to him, amount of

compensation, which has been awarded is more than the one

which could have been worked out on application of the set

formula. According to him, the deceased was 59 years of

age, drawing pension. According to him, no case is made out

for interference with the impugned judgment and award.

6. Admittedly, the deceased died in a vehicular

accident way back in 1989. the deceased was 59 years of

age, a pensionery, drawing pension of Rs.1000/-. The petition

was filed by his widow and a minor son. The widow passed

away six years after filing of the petition. In the first round of

hearing of the claim petition, the Tribunal had awarded a sum

First Appeal No.2476/2010 :: 5 ::

of Rs.35,000/- towards compensation. As stated above, the

said award came to be set aside, remanding the matter back

to the Tribunal.

7. Considering the annual income of the deceased at

Rs.12,000/-. 15% of his annual income is added thereto on

account of future prospects. Here the future prospects may

be in the nature of increase in Dearness Allowance and

revision in pension. After adding 15%, the annual income of

the deceased comes to Rs.14,800/-. Since the deceased was

in the age group of 50 to 60, applying the multiplier of 9, the

amount comes to Rs.1,24,200/-. One third thereof is to be

deducted towards personal and living expenses which comes

to Rs.41,400/-. After deducting the same, the amount comes

to Rs.82,800/-. On the basis of this calculation, it may sound

that the amount of compensation granted by the Tribunal is in

excess of a just compensation to which the appellants are

entitled to. It is, however, the case of the appellants that the

deceased was doing agriculture and was an estate agent too.

A 7/12 extract of the agricultural land was placed on record

before the Tribunal. Moreover, no compensation has been

awarded on account of loss of estate, funeral expenses and

loss of consortium. Instead of working out additional

First Appeal No.2476/2010 :: 6 ::

compensation in terms of the set formula, I propose to make

some departure therefrom and grant a sum of Rs.50,000/- in

addition to what has already been awarded under the

impugned award.

8. The Tribunal has not awarded any interest on the

amount of compensation from the date of petition to the date

of award. It has directed to pay interest @ 6% p.a. on the

amount of compensation if the same is not paid within a

period of one month from the date of the impugned award.

The Tribunal has not assigned any reason as to why it

declined to grant interest from the date of the claim petition.

9. In case of Smt. Chameli Wati and another V/s

Delhi Municipal Corporation [ 1986 AIR (SC) 1191 ], Hon'ble

Supreme Court observed :-

"2. We are of the view that the Division Bench of the High Court erred in the exercise of its discretion under Section 110CC of the Motor Vehicles Act, 1939 in not awarding interest on the amount of compensation finally determined by it from the date of the application. It is undoubtedly true that under Section 110CC, the Division bench of the High Court had discretion to award interest at such rate and from such date not earlier than the date of the application as it may think fit in the

First Appeal No.2476/2010 :: 7 ::

exercise of its direction. But it is well settled that every discretion conferred by statute must be exercised judicially on the basis of the facts and circumstances of a particular case. Here when the learned Single Judge enhanced the amount of compensation, he awarded interest on the enhanced amount @ 6% per annum from the date of his judgment and the Division Bench also when it further enhanced the amount of compensation, directed that interest at the rate of 6% per annum be paid on the enhanced amount from the date of its judgment and not from the date of the application. The learned Single Judge as well as the Division Bench totally ignored the fact that the enhanced amount of compensation awarded by them was in their judgment the correct amount of compensation payable to the appellants on account of the death of the deceased resulting from the accident. The learned Single Judge and the Division Bench should have therefore awarded interest on the enhanced amount of compensation from the date of the application."

10. From the facts and circumstances of the case, it

does appear that the appellant is the sufferer. The impugned

award indicates that, it is the respondent Insurance Company

alone which has been directed to pay the amount of

compensation. The Insurance Company did not challenge the

impugned award. This Court has, therefore, no option but to

direct the respondent Insurance Company alone to pay the

total amount of Rs.1,55,000/- as compensation with interest

@ 7% p.a. from the date of application to the date of

First Appeal No.2476/2010 :: 8 ::

payment of the entire amount. For the reasons given

hereinabove, the appeal is allowed in terms of the following