Bombay High Court
Chandabai Ramchandra Ubade And ... vs Shaikh Mustafa Babu And Anr on 23 August, 2022
Bench: S. G. Dige
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3584.18FA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3584 OF 2018
1. Chandabai Ramchandra Ubade
Age : 41 years, Occ : Household,
R/o Mulanmath, Near Watertank,
Rahuri, Tq. Rahuri, Dist. Ahmednagar.
2. Ashok Ramchandra Ubade
Age : 20 years, Occ : Nil,
R/o Mulanmath, Near Watertank,
Rahuri, Tq. Rahuri, Dist. Ahmednagar.
3. Sanjay Ramchandra Ubade
Age : 17 years, Occ : Nil,
R/o Mulanmath, Near Watertank,
Rahuri, Tq. Rahuri, Dist. Ahmednagar.
4. Suresh Ramchandra Ubade
Age : 16 years, Occ : Nil,
R/o Mulanmath, Near Watertank,
Rahuri, Tq. Rahuri, Dist. Ahmednagar.
(Appellant nos.3 and 4 Minors under
guardian of Appellant No.1)
5. Ratnabai Shankar Ubade
Age : 73 years, Occ : Nil,
R/o Mulanmath, Near Watertank,
Rahuri, Tq. Rahuri, Dist. Ahmednagar. APPELLANTS
(Original Claimants)
VERSUS
1. Shaikh Mustafa Babu
Age : 43 years, Occ : Business,
R/o Sakuri, Tq. Rahata,
Dist. Aurangabad
(Owner & Driver of Maximo Van
MH-17-AJ-7098)
::: Uploaded on - 23/08/2022 ::: Downloaded on - 24/08/2022 14:37:44 :::
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3584.18FA
2. The Manager,
New India Assurance Company Ltd.,
Shrirampur Branch (151802)
Prag Plaza, Dr. Chatuphale Marg,
Shivaji Cross road, Shrirampur.
. RESPONDENTS
(Original Respondents)
...
Advocate for Appellants : Mr.Abhijit C. Darandale
Advocate for Respondent No. 2 : Mr. Mohit R. Deshmukh
...
CORAM : S.G.DIGE, J.
RESERVED ON : 20/07/2022
PRONOUNCED ON : 23/08/2022
JUDGMENT :
The present appeal is preferred by the
appellants (original claimants) for enhancement of
compensation awarded by the learned Motor Accident
Claims Tribunal, Ahmednagar (Hereinafter referred to as
"the Tribunal") vide award dated 19.12.2016 on account of
death of Shri Ramchandra Ubade.
2. The factual matrix of the present case, briefly
stated, are as under :-
On 19.04.2014, the deceased was riding his
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motorcycle (registration no. MH-17-L-6315) towards Rahuri
(Kh) by Nagar-Manmad road. At that time, one Maximo Van
bearing registration no.MH-17-AJ-7098 came in rash and
negligent manner and gave dash to motorcycle of the
deceased from rear side. As a result of the accident, the
deceased fell and sustained head injury and fractures to
right leg. He was taken to Rural Medical Hospital, Rahuri,
then shifted to P.M.T. Hospital, Loni for further treatment,
then he was shifted to City Care Hospital, Ahmednagar.
During the treatment, on 24th April, 2014, Ramchandra
succumbed to the injuries. Crime was registered against the
driver of van.
3. The appellants (original claimants) filed Claim
Petition for getting compensation before the Tribunal,
Ahmednagar. The learned Tribunal allowed claim petition
of the appellants and granted Rs.10,35,000/- as the
compensation. The said order is under challenge.
4. The learned counsel for the appellants has
mainly raised the following grounds, in the appeal :-
3584.18FA
(a) The compensation awarded by the Tribunal is
inadequate, which is not just and equitable compensation.
(b) The Tribunal has not granted compensation
towards medical expenses and transportation, which was
claimed.
(c) The Tribunal has not granted compensation for
future prospects and consortium.
(d) The Tribunal has not awarded the just and
reasonable compensation.
5. It is the contention of the learned counsel for
respondent no.2 that the Tribunal has considered all aspects
while granting compensation and has awarded just and
proper compensation as per entitlement. There was no
evidence before the Tribunal to consider the facts raised in
the appeal. The order passed by the Tribunal is legal and
valid, hence no interference is required.
6. I have heard both the learned counsel. Perused
the judgment and order passed by the Tribunal. The
3584.18FA
Tribunal awarded compensation of Rs.10,35,000/- to the
appellants.
7. The Tribunal has not awarded the
compensation in respect of future prospects, loss of estate
and consortium. The Tribunal has considered the evidence
of appellant no.1 and on the basis of the evidence, the
Tribunal has held that the deceased was earning Rs.6000/-
per month. Accordingly, the Tribunal has calculated the
amount by deducting 1/4th amount for personal expenses.
The Tribunal has not considered the future prospects. The
Hon'ble Apex Court in the case of National Insurance Co.
Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680 has
held that in case the deceased was self-employed or on a
fixed salary, and was below 40 years of age, an addition of
40% of the established income should be granted towards
future prospects. The future prospects is to be awarded on
the basis of (i) the nature of the deceased's employment and
(ii) the age of the deceased.
3584.18FA
8. In the present case, it has come in the evidence
of appellant no.2 that the deceased was mason and earning
around Rs.400/- per day. As there was no evidence in
support of earning of Rs.400/- per day by the deceased, the
Tribunal has considered notional daily income of the
deceased of Rs.200/- per day i.e. Rs.6,000/- per month. In
the evidence of PW-1 Smt. Chandabai Ubade, it has come
on record that the age of the deceased at the time of death
was 38 years 10 months, but there was no documentary
evidence on record in support of her evidence, hence the
Tribunal has considered the age of the deceased to be 40
years as mentioned in the postmortem report. The age of
the deceased is considered as 40 years, hence the future
prospects ought to have been awarded at 40% of the actual
income of the deceased.
9. It is contention of the learned counsel for the
appellant that the Tribunal has not considered the
compensation for loss of estate and consortium. The
Tribunal has considered the cost of consortium as
3584.18FA
Rs.1,00,000/- and funeral expenses Rs.25,000/-, loss of love
and affection Rs.1,00,000/-. In the case of Magma General
Insurance Co. Ltd. Vs. Nanu Ram reported in 2018 SCC
Online SC 1546, the Hon'ble Apex Court has held that in
legal parlance, "consortium" is a compendious term which
encompasses `spousal consortium', `parental consortium',
and `filial consortium'. The right to consortium would
include the company, care, help, comfort, guidance, solace
and affection of the deceased, which is a loss to his family.
With respect to a spouse, it would include sexual relations
with the deceased spouse. Spousal consortium is generally
defined as rights pertaining to the relationship of a
husband-wife which allows compensation to the surviving
spouse for loss of "company, society, co-operation, affection,
and aid of the other in every conjugal relation." Parental
consortium is granted to the child upon the premature
death of a parent, for loss of "parental aid, protection,
affection, society, discipline, guidance and training."
10. In the present case, the cost of consortium is
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granted Rs.1,00,000/-, it should be Rs.2,00,000/- as there
are five appellants, who are wife, children of deceased. As
per the view taken by the Hon'ble Apex Court in the case of
Magma General Insurance (supra), the appellants are
entitle for Rs.40,000/- each as consortium. It would come to
Rs.2,00,000/-.
11. In the light of abovementioned discussion, the
appellants are entitled to the following amounts :-
Head Compensation awarded
i. Income : Rs.6000/-
ii. Future Prospects : Rs.2400/- (i.e. 40% of the
income)
iii. Deduction towards personal : Rs.8400/- (i.e. 1/4th Rs.2100/-)
expenditure
iv Total Income : Rs.6,300/-, Rs.6,300 X 12 =
Rs.75,600/-
v Multiplier : Rs.75,600/- X 15 = Rs.11,34,000/-
vi Funeral expenses : Rs.15,000/-
ix Loss of estate : Rs.15,000/-
x Loss of Consortium : Rs.2,00,000/-
Total compensation awarded Rs.13,64,000/- inclusive of N.F.L.
12. In view of the above, I pass the following
order:-
3584.18FA
ORDER
(i) The appeal is allowed.
(ii) The amount of compensation is enhanced from
Rs.10,35,000/- to Rs.13,64,000/-. The appellants are
entitled to enhance amount of Rs.3,29,000/- @ 9 % from
the date of filing claim petition till realization of amount.
(iii) The appeal is disposed of accordingly.
[S.G.DIGE]
JUDGE
SGA/-
