Bombay High Court
Goroba Bapurao Kamble And Anr vs Avinash Nivratirao Gurmulwad And ... on 19 September, 2022
Bench: S. G. Dige
1
1082.22FA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1082 OF 2022
1. Goroba S/o Bapurao Kamble
Age : 58 years, Occ : Nil,
R/o village Mahalangra,
Tq. Chakur, Dist. Latur.
2. Sushilabai W/o Goroba Kamble
Died through her L.Rs.
2a) Surekha W/o Pitanbar Naikwade
Age : 45 years, Occ : Housewife,
R/o village Ujlamb, Tq. Latur,
Dist. Latur.
2b) Sitabai W/o Vittal Gaikwad
Age : 43 years, Occ : Housewife,
R/o village digras, Tq. Latur,
Dist. Latur.
2c) Satish S/o Goroba Kamble
Age : 43 years, Occ : Agri.,
R/o village Mahalangra,
Tq. Chakur, Dist. Latur.
. ..APPELLANTS
(Original claimants)
VERSUS
1. Avinash S/o Nivratirao Gurmulwad
Age : 38 years, Occ : Business,
R/o Flat No.7, Purva Apartment,
Next to Patel Tiles, Shivaji Nagar,
Pune - 411 028
2. The New India Assurance Company Ltd.,
Through its Branch Manager,
::: Uploaded on - 23/09/2022 ::: Downloaded on - 24/09/2022 01:08:46 :::
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Branch Office at Main Road,
Latur, Dist. Latur.
3. Yashoda Nagnath Kamle
Age : 25 years, Occ : Household,
R/o village Mahalangra,
Tq. Chakur, Dist. Latur
At present R/o village Umbarga (Thorla),
Tq. Udgir, Dist. Latur.
. ..RESPONDENTS
(Orig. Respondents)
...
Advocate for Appellants : Mr. P.K. Lakhotiya
Advocate for Respondent No.2 : Mr. A.G. Kanade
...
CORAM : S.G.DIGE, J.
RESERVED ON : 23.08.2022
PRONOUNCED ON : 19.09.2022
JUDGMENT :
Being aggrieved and dissatisfied with the
judgment and award passed by the Adhoc District Judge-4
and Ex.Officio Member of Motor Accident Claims Tribunal,
Latur, the appellants - original claimants have preferred this
appeal.
2. Brief facts of the case are as under :-
On 29th October, 2006 at about 10.00 p.m.
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while deceased Nagnath S/o Goroba Kamble proceeding
towards his village Mahalangra from Latur, by sitting as a
pillion rider on the motor cycle bearing registration no.
MVE-2147 belonging to Avinash Mane, resident of village
Mahalangra, at that time, the driver of the Car bearing
registration No.MH-12 BP-2546, who was driving the said
Car in rash and negligent manner, gave dash to the
motorcycle and caused accident. Due to the said accident,
deceased Nagnath sustained fractures and severe injuries
over head, chest, legs, spine, eyes, waist and other parts of
the body. The rider of the motorcycle Avinash Mane also
suffered severe and multiple injuries. While taking
treatment, deceased Nagnath died due to accidental
injuries.
3. The appellants filed claim petition for getting
compensation before the Adhoc District Judge-4, Latur (For
short, "the Tribunal"). Considering the evidence on record
and after hearing the parties, the Tribunal has awarded
compensation. Against the said judgment and order this
1082.22FA
appeal for enhancement of compensation.
4. It is the contention of the learned counsel for
the appellants that the Tribunal has erroneously held that
the said accident has occurred due to contributory
negligence of rider of the bike, when there is no specific
plea raised by respondent nos.1 and 2 about the
contributory negligence of rider of bike. Learned counsel
further submits that the accident has occurred only because
of rash and negligent driving of the driver of the Car
belonging to respondent no.1. The Tribunal has considered
the monthly income of the deceased on lower side. He was
driver. In claim petition filed by the heirs and legal
representatives of deceased Shri Avinash Mane, his monthly
income is considered at Rs.6000/- by this Court and
enhanced the compensation amount, he was mechanic,
hence requested to allow the appeal.
5. It is the contention of the learned counsel for
respondent no.2 that the Tribunal has considered all the
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aspects while passing the judgment and order. The
deceased was driver. On that basis, his monthly income was
considered by the Tribunal, which is proper. The Tribunal
has calculated the compensation properly. Hence no
interference is required. The judgment and order passed by
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 of
contributory negligence and income of the deceased
considered on lower side.
8. The Tribunal has considered the contributory
negligence of rider of the motorcycle and on that basis the
compensation amount granted to the appellant is deducted.
First Appeal No.2800/2009 was filed by heirs and legal
representatives of deceased Avinash Mane, who was riding
the motorcycle along with deceased Nagnath for
1082.22FA
enhancement of compensation. This Court (Coram : Sunil K.
Kotwal, J) had set aside the contributory negligence theory
of the insurance company. The deceased was pillion rider
on the motorcycle. Hence the Tribunal has erred in showing
the contributory negligence of the deceased.
9. In respect of the income of the deceased
Nagnath, the Tribunal has considered Rs.2,500/- per month
as notional income. It has come on record in the evidence of
PW-1 that the deceased was driver and he was getting
Rs.5,000/- to Rs.6,000/- per month as salary. It is also
stated that he was doing agricultural business and was
getting Rs.1,50,000/- p.a. In my view, the Tribunal has
considered the monthly income of the deceased of
Rs.2,500/- on lower side, when it has come on record that
he was driver and he was getting annual income of
Rs.1,50,000/- from agricultural land. Hence I am
considering Rs.5,000/- as monthly notional income of the
deceased.
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10. Considering the above, the appellants are
entitle for the following compensation :-
Sr. Head Compensation awarded
No.
1. Notional Monthly income Rs.5,000/- per month
2. Annual income Rs.60,000/-
3. 40% future prospects Rs. 24,000/-
4. 1/3rd deduction (Rs.28,000/-) Rs.56,000/-
5. Multiplier 17 (Rs.56,000 X 17) Rs.9,52,000/-
6. Total Compensation Rs.9,52,000/-
11. In view of the above, I pass the following
order:-
ORDER
(i) The appeal is partly allowed.
(ii) The amount of compensation is enhanced from
Rs.1,90,400/- to Rs.9,52,000/-.
(iii) The appellants are entitle to enhanced amount of
Rs.7,61,600/- @ 6% from the date of filing claim petition
till realization of amount.
(iv) The respondent nos.1 and 2 with join and several
liability shall pay enhanced amount of Rs.7,61,600/- @ 6%
per annum within six weeks from the receipt of the order.
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(v) The appellants are permitted to withdraw the amount
deposited by respondent nos.1 and 2.
(vi) Appeal is disposed of in above terms.
[S.G.DIGE]
JUDGE
SGA/-
