Bombay High Court
Bhatu Lakdu Karve And Ors vs Bhaurao Nana Karve And Ors on 22 August, 2022
Bench: S. G. Dige
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835.22FA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 835 OF 2022
1. Bhatu Lakdu Karve
Age : 50 years, Occ : Nil,
2. Savita Bhatu Karve
Age : 22 years, Occ : Nil,
3. Samadhan Bhatu Karve
Age : 20 years, Occ : Education,
4. Dipali Bhatu Karve
Age : 19 years, Occ : Nil,
All R/o Akkalpada,
Tq. Sakri, Dist. Dhule. APPELLANTS
(Original Claimants)
VERSUS
1. Bhaurao Nana Karve
Age : 32 years, Occ : Driver,
R/o Akkalpada, Tq. Sakri,
Dist. Dhule.
2. Santosh Bhaga Karve
Age : 32 years, Occ : Vehicle Owne,
R/o Akkalpada, Tq. Sakri,
Dist. Dhule.
3. The Bajaj Allianz General Insurance
Company Ltd.,
Through its Branch Manager,
Having office at 1st Floor,
Shree Ganesh Plaza,
New Mahamarg Bus Stand,
Kute Marg, Nasik 422 001. ...RESPONDENTS
(Original Respondents)
::: Uploaded on - 22/08/2022 ::: Downloaded on - 23/08/2022 14:02:27 :::
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835.22FA
...
Advocate for Appellants : Mr.Shrikant S. Patil
Advocate for Respondent No. 3 : Mr. S.G. Chapalgaonkar
CORAM : S.G.DIGE, J.
RESERVED ON : 15/07/2022
PRONOUNCED ON : 22/08/2022
JUDGMENT :
Being aggrieved and dissatisfied by the
judgment and award passed by the Member, Motor
Accident Claims Tribunal, Dhule, the appellants - original
claimants have preferred this appeal for enhancement of
compensation.
2. Brief facts of the case are as under :-
On 2nd January, 2017 at about 6:00 p.m.
deceased Dagubai Bhatu Karve was proceeding towards her
house from the field on offending motorcycle as a pillion
rider. The driver of the motorcycle gave dash to the
pedestrian. Due to said dash, the deceased thrown away
from the offending motorcycle, in which she sustained
835.22FA
grievance injuries over her person and passed away. The
crime was registered against the driver of the motorcycle.
3. The heirs and legal representatives of the
deceased i.e. appellants filed claim petition before the
Motor Accident Claims Tribunal, Dhule (for short, "the
Tribunal") for getting compensation. After considering the
evidence on record and hearing the parties, the Tribunal has
awarded Rs.7,78,750/- as compensation. Against the said
order, this appeal for enhancement of compensation
amount.
4. It is the contention of the learned counsel for
the appellants that the Tribunal has not considered the
income of the deceased properly and has not awarded the
consortium as per the law laid down by the Hon'ble Apex
Court.
5. It is the contention of the learned counsel for
respondent no.3 that the appellants did not produce any
835.22FA
evidence in respect of income of the deceased before the
Tribunal. Hence, the notional income considered by the
Tribunal is proper and correct. The Tribunal has granted
adequate consortium. The judgment and order of the
Tribunal is legal and valid.
6. I have heard both the learned counsel. Perused
the judgment and order passed by the Tribunal.
7. The issue involved in this appeal is, the income
of the deceased is not properly considered by the Tribunal
and the Tribunal has not properly awarded the amount of
consortium.
8. It is the contention of the appellants that the
deceased was cultivating her own agricultural land thereby
earning Rs.2,00,000/- per annum and apart from
agriculture work, she used to do the milk business,
distribute/supply the milk, thereby earning Rs.15,000/- per
month and maintaining her family. The Tribunal has
835.22FA
observed that there is no evidence on record showing the
income of the deceased, hence the Tribunal has considered
the income of the deceased at Rs.150/- per day i.e. the
wages given to the female agricultural labourer in the year
2017. Accordingly, the Tribunal has considered the notional
income of Rs.4,500/- and has made calculations on the
basis of it. It appears from the evidence of PW-1 Shri Bhatu
Karve Exhibit-18 that the deceased used to cultivate
irrigated agricultural land and her annual earning excluding
expenditure was Rs.2,00,000/-. Besides that she was doing
milk business and was earning Rs.15,000/- per month. The
Tribunal has not considered agricultural income and milk
income of the deceased on the ground that agricultural land
is standing in the name of husband of the deceased and it
can not be said that because of death of Dagubai income of
claimant no.1 from agricultural land is shut down. In
respect of income from milk business, the Tribunal has
observed that after death of deceased the cattle can be said
as it is, it is open for claimants to produce milk from that
cattle and earn something. In my view, the Tribunal has not
835.22FA
considered the evidence on record in proper perspective.
The Tribunal has forgotten that the evidence in cases of
Motor Vehicle Act is to be seen on preponderance of
probability and not as per evidence, beyond reasonable
doubt like criminal trial. In the present case, the complaint
is lodged after the accident, in the said complaint Exhibit-
19/C, it is stated that the deceased had gone to her field for
cultivation of onion after completing her work about 6 p.m.
she was returning home on motorcycle as pillion rider then
accident was occurred. This complaint shows that the
deceased was cultivating onion's in her field at that time her
husband was not present, it shows that she was cultivating
land. It has come on record that there was cattle in the
house of the deceased, so income from milk is also
necessary to be considered. Though the appellants are
stating that she was earning Rs.20,000/- per month from
agricultural income and milk business but there is no
evidence in that regard, hence in my view, notional income
of Rs.6000/- per month should be considered as income of
deceased.
835.22FA
9. At the time of accident deceased was 45 years
age. She was self employed. In case of National Insurance
Company Limited Vs. Pranay Sethi and others reported in
(2017) 16 SCC 680, it has been held by the Hon'ble
Supreme Court that if the deceased is not self employed or
on fixed salary, addition of 25% of established income is
necessary in case age of deceased in between 40 to 50
years.
10. The Tribunal has granted consortium of
Rs.40,000/-. There are four appellants. The Tribunal has
not considered consortium of three appellants, hence it
needs to be taken into consideration as per the view taken
by the Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited Vs. Nanu Ram alias
Chuhru Ram and others reported in (2018) 18 SCC 130.
Hence, consortium for three children comes to Rs.40,000/-
X 3 = Rs.1,20,000/-.
11. Considering the notional income of the
835.22FA
deceased at Rs.6,000/- per month and additional
consortium of Rs.1,20,000/-, the appellants are entitled for
the following compensation.
Sr. Head Compensation awarded
No.
1. Notional income Rs.6000/- per month
2. Annual income (Rs.6000/- X 12) Rs.72,000/- per year
3. After 1/4th deduction towards Rs.54,000/-
personal expenses
4. Additional 25% future prospects Rs.18,500/-
5. As the age of deceased was 45
years, hence multiplier is to be
applied is 14
Rs.54,000/- + Rs.18,500/- = Rs.10,15,000/-
Rs.72,500/- X 14
For pecuniary loss, estate and Rs. 70,000/-
funeral expenses
Consortium :
For Children Rs.40,000/- X 3 Rs.1,20,000/-
6. Total Rs.12,05,000/-
7. Enhanced amount (Rs.12,05,000- Rs.4,26,250/-
Rs.7,78,750/-)
12. In view of the above, I pass the following order :-
ORDER
(i) The appeal is allowed.
835.22FA
(ii) The appellants are entitle to enhance amount of
Rs.4,26,250/- @ 9% from the date of filing claim petition till
realization of amount.
(iii) Appeal is disposed of in above terms.
[S.G.DIGE]
JUDGE
SGA/-
