Bombay High Court
Zakiyabi Taher Ali Shah And Anr vs Shaikh Asad Shaikh Hanif And Ors on 11 October, 2022
Bench: S. G. Dige
{1} J-FA-3332-2018
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3332 OF 2018
1. Zakiyabi Taher Ali Shah,
Age : 50 years, Occu. : Household,
2. Taher Muhammed Ali Shah,
Age : 55 years, Occu. : Service,
both R/o. : Indirnagar, Baijipura,
Aurangabad ... APPELLANTS
(Ori. Claimants)
VERSUS
1. Shaikh Asad Shaikh Hanif,
Age : Major, Occu. : Driver,
R/o. : Rajarai - Takali,
Tq. Khultabad, Dist. Aurangabad
2. Shaikh Riyaz Shaikh Rabbani,
Age : Major, Occu. : Business,
R/o. : Plot No.3, 18 and 11, Galli No.8,
near Shaheen Laundry, Dada Colony,
Kailashnagar, Aurangabad
3. Reliance General Insurance,
Through Its Branch Ofce, Aurangabad
4. Praveen Madhavrao Maratte,
Age : Major, Occu. : Driver of MSRTC,
Depot - Vaijapur, Dist. Aurangabad
(R4 is dismissed as per order dated 18.10.2019)
5. The Divisional Controller,
MSRTC, Central Bus Stand
Aurangabad, Dist. Aurangabad ... RESPONDENTS
(Ori. Respondents)
...
Pooja K.
::: Uploaded on - 11/10/2022 ::: Downloaded on - 13/10/2022 04:31:12 :::
{2} J-FA-3332-2018
Mr. S.S. Shaikh : Advocate for Appellants
Mr. A.S. Usmanpurkar - Advocate for Respondent No.3
Mr. A.D. Wange - Advocate for Respondent No.5
....
CORAM : S.G. DIGE, J.
RESERVED ON : 23rd August, 2022
PRONOUNCED ON : 11th October, 2022
JUDGMENT :
. This appeal is preferred by the appellants - original
claimants for enhancement of compensation.
2. It is contention of learned Counsel for appellants that,
the Motor Accident Claims Tribunal (for short 'the Tribunal')
has not appreciated and considered the oral and
documentary evidence on record for calculating total salary
of the deceased Mazhar Shah Taher Ali Shah. The Tribunal
has wrongly assumed the income of deceased and has
considered at Rs.6,000/- monthly income instead of
Rs.27,000/- per month. The deceased was skilled worker /
self employed and doing various private jobs. Hence,
requested to allow the appeal.
3. It is contention of learned Counsel for respondents
that, no evidence was produced before the Tribunal to prove
Pooja K.
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that, deceased was earning Rs.27,000/- per month. The
witness examined by the appellants to prove the income of
deceased has stated that, deceased was earning
Rs.12,000/- per month but no document produced on record
to show that, deceased was working in the shop of witness
Devidas Gawande. On the basis of evidence produced
before the Tribunal, the Tribunal has rightly considered the
notional income of deceased amount of Rs.6000/- per
month.
4. Learned Counsel further submits that, the Tribunal has
awarded 50% future prospects, however as per view of the
Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi and Others
reported in (2017) 16 SCC 680, it should be 40%.
5. I have heard all the learned Counsel. Perused the
judgment and order passed by the Tribunal.
6. The issue involved in this appeal is income of the
deceased. The Tribunal has considered Rs.6,000/- monthly
income of the deceased. The Tribunal has deducted
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Rs.1,000/- for fve Sunday so, the Tribunal has considered
net monthly income of Rs.5,000/-. According to the
appellants their son was earning Rs.27,000/- per month. To
prove the income of deceased, the appellants have
examined PW-2 Devidas Gawande. He states that, he is
owner of Chakara Electricals and in his shop deceased was
working. He was paying salary of Rs.12,000/- per month to
the deceased. He has issued certifcate in that regard. In
cross-examination this witness admits that, except
certifcate (Exh.46) he has no document to show that,
deceased was working in his shop.
7. To prove the income of deceased appellants examined
PW-3 Imran Pathan. He runs a computer shop wherein the
deceased was working and he was paying salary of
Rs.6,000/- to him. In his cross-examination this witness
admits that, he used to pay income tax and in that record
he showed that, he pays salary to two employees but in
those names name of deceased Mazhar is not mentioned.
From the evidence of these witnesses, it appears that they
have prepared record to show that, deceased was working
Pooja K.
{5} J-FA-3332-2018
with them. Appellants also examined their son Parwej. He
has stated that, on 01.08.2013 he had executed a
document in favour of Mazhar and had handed over his
business of xerox to Mazhar and he was paying Rs.6000/-
per month and Rs.100/- as travelling charges to the
deceased.
8. The Tribunal has observed that, the appellants to grab
excessive compensation from the respondents seems to
have prepared the document (Exh.50) in collussion with
Awal Karkun, Tahsil ofce, Gangapur.
9. It appears from record that, PW-4 Parwez who was just
18 years of age on 1 st August, 2013 might have doing any
business and had delivered the business to deceased - his
elder brother that too on monthly salary. Hence, the Tribunal
has considered daily income of deceased of Rs.200/- per
day.
10. In my view, the Tribunal has considered Rs.5000/- net
monthly income of deceased it should be Rs.6000/-. Hence,
I am considering Rs.6000/- as notional monthly income of
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the deceased. The Tribunal has awarded additional future
prospects 50% to the deceased. As per view taken by the
Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi and Others
reported in (2017) 16 SCC 680, it should be 40%. As
deceased was below 40 years of age and he was self
employed. He was no permanent salaried person.
11. In view of the above calculations, the appellants are
entitle for following compensation.
Sr. Head Compensation awarded
No.
1 Notional Income Rs.6000/-
2 Future Prospectus Rs.2400/- (i.e. 40% of the
income)
3 Yearly income Rs.8400/- x 12 = Rs.100800/-
4 Deduction towards Rs.50400/-
Personal (i.e.Rs.100800/- - Rs.50400/-)
expenditure (1/2)
5 Multiplier (18) Rs.907200/- (i.e Rs.50400 x
18)
6 Consortium amount Rs.80000/-
(Rs.40000/- each
payable to 2
dependents)
7 Funeral expenses Rs.15000/-
8 Total Rs.1002200/-
12. The Tribunal has awarded Rs.8,50,000/- as
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{7} J-FA-3332-2018
compensation. Considering above calculations appellants
are entitle for enhanced compensation of Rs.1,52,200/- i.e.
Rs.10,02,200/- - Rs.8,50,000/- = Rs.1,52,200/-. In view of
the above, I pass the following order :-
ORDER
(a) Appeal is allowed.
(b) Appellants are entitle for enhanced
compensation of Rs.1,52,200/- @ 6% from the
date of fling claim petition till realisation of
amount.
(c) Respondents shall deposit enhanced amount
before this Court within six (06) weeks.
(d) Rest of Award is maintained as it is.
(e) Appeal is disposed of in above terms.
(S.G.DIGE, J.)
Pooja K.
