Bombay High Court
Sangitadevi Rameshwarkumar And ... vs Shaikh Nazir Shaikh Imam And ... on 21 September, 2022
Bench: S. G. Dige
1
1023.07 FA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1023 OF 2007
1. Smt. Sangitadevi W/o Late Rameshkumar Kesarwani
Age : 40 years, Occ : Household,
R/o 41-A/1, Phafamau Pratap Gargh Road,
Allahabad (UP).
2. Surajprasad S/o Late Ramkishore Kesarwani (Died)
Through his legal heirs who are already on
record as Appellant Nos.3 (i) (ii) (iii) (iv)
3. Smt. Gulabdevi W/o Surajprasad Kesharwani
(Died) through her legal heirs
3-i) Shri Bharatprasad S/o Surajprasad Kesharwani
(died) through his legal heirs
(Abated)
3-ii) Rambihari S/o Late Surajprasad Kesharwani
Age : 48 years, Occ : Business,
R/o 41-A/1, Phafamau Pratap Gargh Road,
Allahabad (UP).
3-iii) Shyambihari S/o Surajprasad Kesharwani
Age : 44 years, Occ : Business,
R/o 41-A/1, Phafamau Pratap Gargh Road,
Allahabad (UP).
3-iv) Mahendrakumar S/o Surajprasad Kesharwani
Age : 42 years, Occ : Business,
R/o 41-A/1, Phafamau Pratap Gargh Road,
Allahabad (UP).
. ..APPELLANTS
(Original claimants)
VERSUS
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2
1023.07 FA
1. Shaikh Nazir S/o Shaikh Imam
Age : 62 years, Occ : Retired Driver,
R/o Hadgaon, Tq. Hadgaon,
Dist. Nanded.
2. The Maharashtra State Road
Transport Corporation (MSRTC),
Through its Divisional Controller,
S.T. Depot, Nanded
Dist. Nanded.
3. The Depot Manager (MSRTC)
Hadgaon Bus Depot, Tq. Hadgaon,
Dist. Nanded.
. ..RESPONDENTS
(Orig. Respondents)
...
Advocate for Appellants : Mr.N. Narayan Singh
Advocate for Respondent Nos.2 and 3 : Mr. M.K. Goyanka
...
CORAM : S.G.DIGE, J.
RESERVED ON : 20.07.2022
PRONOUNCED ON : 21.09.2022
JUDGMENT :
Being aggrieved and dissatisfied with the
judgment and award passed by the Member, Motor
Accident Claims Tribunal, Nanded, the appellants - original
claimants have preferred this appeal.
1023.07 FA
2. Brief facts of the case are as under :-
On 5th May, 1988 the deceased was proceeding
in the Bus, the said bus collided with tree and caught fire.
Around 55 persons including deceased died in the said fire.
The offence was registered against the driver of the Bus.
3. The appellants filed claim petition for getting
compensation before the Motor Accident Claims Tribunal,
Nanded (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 appeal for enhancement of
compensation.
4. It is the contention of the learned counsel for
the appellants that the Tribunal has not considered proper
income of the deceased. The deceased was contractor and
he had carried out the contract work of Government, Semi-
Government and for private parties, but this fact was not
1023.07 FA
considered by the Tribunal. The income tax returns of the
deceased of the year 1980 to 1987 are not considered by
the Tribunal. At the time of incident, the deceased was 26
years. The deceased was partner in the partnership firm by
name M/s Ganga Construction Company. The future
prospects are also not awarded. Hence requested to allow
the appeal.
5. It is the contention of the learned counsel for
respondent nos.2 and 3 that income of the deceased was
not proved before the Tribunal. The Tribunal has granted
compensation on the basis of the evidence led before the
Tribunal. The respondent no.2 has satisfied the award and
Rs.30,000/- was given by the respondent no.2 to the
appellants, thus total Rs.1,00,000/- is given to the
appellants. The Tribunal has for personal expenses
deducted 1/3rd amount, it should be 1/2. The judgment
and order passed by the Tribunal is legal and valid.
6. I have heard both the learned counsel. Perused
1023.07 FA
the judgment and order passed by the Tribunal. The
Tribunal has awarded Rs.70,000/- compensation to the
appellants.
7. The issues involved in this appeal are income of
the deceased was not properly considered, the future
prospects and consortium amounts are not awarded.
8. Firstly I would consider issue of income of
deceased. The issue in respect of income of the deceased is
concerned, the Tribunal has considered Rs.1500/- per
month as income of the deceased on the ground that the
father of deceased in his evidence has stated that the
deceased was getting Rs.1500/- per month. The Tribunal
has accepted that the deceased was paying income tax
returns. In my view, father of the deceased has categorically
stated that the deceased was earning Rs.1500/- per month,
hence monthly income of deceased at Rs.1,500/- considered
by the tribunal is proper as well as the Tribunal has
observed that the income tax returns filed on record are of
1023.07 FA
partnership firm. So, it cannot be considered as individual
income of the deceased.
9. The issue in respect of the future prospects is
concerned, the Tribunal has not awarded future prospects.
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, the appellants are
entitle for 40% additional amount as future prospects. As
the deceased was 26 years of age at the time of his death,
he was below 40 years of age and he was self employed.
The Tribunal has applied the multiplier of age of parents of
the deceased, it shall be age of the deceased at the time of
accident he was 26 years old, hence, multiplier of 17 is
applicable.
10. The Tribunal has not awarded the consortium
amount. The appellants are dependents on the deceased. As
per the view of the Hon'ble Apex Court in the case of
Magma General Insurance Company Limited Vs. Nanu Ram
1023.07 FA
alias Chuhru Ram and others reported in (2018) 18 SCC
130, the appellants are entitle for Rs.40,000/- each as
consortium. The appellants are also entitle for Rs.30,000/-
amount for funeral expenses and loss of estate.
11. I do not agree with contention of the learned
counsel for respondent that half of amount from the income
should be deducted for personal expenses of deceased, as
claim petition was filed by three claimants viz:- widow,
mother and father of the deceased. Award amount of
Rs.70,000/- is paid to the appellants as well as amount of
Rs.30,000/- is given to the appellants as ex-gratia amount
by respondent, hence I am deducting that amount of
Rs.1,00,000/- from enhanced amount. Though appeal is
filed in the year 1995, it was pending for condonation of
delay till year 2007. Delay for filing appeal is condoned in
the year 2007, hence appellants are not entitle for interest
for the period of these years i.e. till registration of appeal in
2007.
1023.07 FA
12. Considering the above calculations, the
appellants are entitle for following compensation :-
Sr. Head Compensation awarded
No.
1. Monthly notional income Rs.1,500/- per month
2. Annual income Rs.18,000/-
3. 1/3rd deduction (Rs.18,000/- - Rs.12,000/-
Rs.6,000/- = Rs.12,000)
4. 40% future prospects Rs.12,000/- + Rs.16,800/-
Rs.4800/-)
5. Multiplier 17 (Rs.16,800 X 17) Rs.2,85,600/-
6. Consortium amount Rs.40,000/- Rs.1,20,000/-
each
7. Non-pecuniary Heads Rs.30,000/-
8. Total Rs.4,35,600/-
Rs.4,35,600/- - Rs.1,00,000/-, which is paid to the appellants by
respondents = Rs.3,35,600/-. Hence the appellants are for enhanced
amount of compensation of Rs.3,35,600/-
13. In view of the above, I pass the following
order:-
ORDER
(i) The appeal is allowed.
(ii) The amount of compensation is enhanced from
Rs.70,000/- to Rs.4,35,600/-.
(iii) The appellants are entitle to enhanced amount of
Rs.3,35,600/- @ 6% from the date 13.08.2007 till
1023.07 FA
realization of amount.
(iv) Respondent is directed to deposit enhanced amount
within eights weeks.
(v) Appeal is disposed of in above terms.
[S.G.DIGE]
JUDGE
SGA/-
