Bombay High Court
United India Insurance Co Ltd vs Raisabai Nazim Haji And Ors on 7 December, 2023
2023:BHC-AUG:25583
{1} FA-2344-2008
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2344 OF 2008
United India Insurance Co.Ltd.
Branch Office Shahada
Through its Divisional Manager and Authorised
Representative and Signatory, Jalgaon Divisional
Office, Mansing Market, Opp. Atul Dairy, Jalgaon. ...APPELLANT
[Ori. Oppo. No. 2]
VERSUS
1. Smt. Raisabi wd/o Nazim Haji
Aged about 41 years, Occu. Housewife,
2. Shaikh Sajid s/o Nazim Haji
Aged about 20 years, Occ- Education,
3. Shaikh Parvin d/o Nazim Haji
Aged about 17 years, Occ- Education,
4. Shaban Parvin d/o Nazim Haji,
Aged about 15 years, Occ- Education,
[Res. No. 3 and 4 are minors;
represented by through
Their natural guardian/mother viz, Res No. 1]
All r/o Garib Nawaz Colony, Shahada
Tah. Shahada, Dist. Nandurbar (Mah.) ...RESPONDENTS
[Res. No. 1 to 4 Ori. Claimants]
5. Vilas Gopal Marathe
Aged adult, Occ. Business,
R/o Velda, Tah. Nizar, Dist. Surat (Guj). Appeal dismissed
as against respondent
No. 5 vide order dated 17.11.2006
.......
Mr. A.B. Gatne, Advocate for the Appellant.
Mr. L.S. Mahajan, Advocate for respondent No. 1 to 4.
.......
Bhagyawant Punde
{2} FA-2344-2008
CORAM : KISHORE C. SANT, J.
RESERVED ON : 16th OCTOBER, 2023
PRONOUNCED ON : 7th DECEMBER, 2023
JUDGMENT:
1. This appeal is by the Insurance Company challenging
the judgment and award dated 10.04.2007, passed by learned
Member, Motor Accident Claims Tribunal, Shahada, District-
Dhule, in M.A.C.P. No. 62/2005. The learned Member was
pleased to partLy allow the claim petition with proportionate
cost. Opponent No. 1 and 2 i.e. the owner of the vehicle and
insurer of the vehicle to pay claim amount of Rs. 6,09,500/-,
jointly and severally with interest @ 7.5% p.a from the date of
filing of petition till its recovery including amount of no fault
liability.
2. The present appellant was Opponent No. 2. Present
respondent Nos. 1 to 4 are the original claimants and
Respondent No. 5 was original Opponent No. 1.
3. Facts in short are that, deceased aged 45 years was
proceeding on motorcycle on 27.02.2005. When he was near
Korit Fata, a truck bearing registration no. GJ-5/V-8644 gave
dash to the motorcycle. Because of said accident deceased
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Nazim lost his life. He was working as a driver for 11 years and
was getting salary of Rs. 7800/- per month. Claimants/heirs of
deceased therefore filed claim petition claiming compensation of
Rs. 8,50,000/- including medical expenses and expenses
towards last rites. Opponent No. 1 failed to appear and therefore
claim petition proceeded exparte against him. Opponent No. 2
filed written statement and denied that accident occurred
because of rash and negligent driving of the truck. They denied
the age of the deceased as stated in the claim petition and also
monthly income.
4. The learned Tribunal recorded the evidence and held
that claimants are entitled to receive compensation as stated
above.
5. The learned advocate Mr. Gatne for the appellant
argued that learned Tribunal has wrongly held that the income of
the deceased was Rs. 7800/- per month and that age of the
deceased is 45 years. The accident took place because of the
mistake of the deceased himself and thus it is the case of
contributory negligence. There is no evidence produced on
record to show that the deceased was holding license to drive
the vehicle. There is no evidence of expert to prove the injuries
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on the deceased etc. It is further submission that the accident
took place in the year 2005 at that time, drivers' income was
around Rs. 3,000/- per month. Considering the personal
expenses annual income ought to have taken as 18,000/- per
year. He relied upon the judgment in Sarla Verma Vs. Delhi
Transport Corporation, 2009 (6) SCC 121. It is further submitted
that learned Tribunal has failed to appreciate that it is a case of
contributory negligence and claimants were entitled only to 50%
of the amount of compensation. As per Schedule II under the
Workmen Compensation Act, for the year 2003 deemed salary of
a driver was Rs. 4,000/-.
6. Learned advocate Mr. Mahajan, for Respondent Nos.
1 to 4 vehemently opposed the appeal. He justified the award
saying it to be just and proper. He submitted that the Insurance
Company has not adduced any evidence in support of its case.
He submitted that appeal is continuation of proceeding and
therefore relevant changes took place in the law needs to be
considered to arrive at just compensation. In the present case
considering the number of dependents, the amount towards
personal expenses ought to have been taken only 1/4th as
against 1/3rd taken by the Court. He submitted that income of
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{5} FA-2344-2008
the deceased ought to have been taken as Rs. 5,000/- per
month with future prospects @ 25% as deceased was 45 years
of age. He further submits that no separate appeal is required by
the claimants seeking enhancement. He submits that there is no
challenge by the Insurance Company to the evidence of claimant
No. 1.
7. On these rival contentions, this Court has gone
through the evidence on record. Claimant No. 1- Smt. Raisabi
Nazim Haji, wife of deceased got herself examined in support of
her claim. In her evidence she stated that deceased was earning
Rs. 60,000/- per year when he met with an accident. In her
cross examination about income only a suggestion was given
that deceased was not earning Rs. 60,000/- and that earning of
deceased was Rs. 2,000/- to 2500/- per month. No any other
witness is examined by the parties. On this evidence, learned
Tribunal proceeded to hold that deceased was earning Rs.
5,000/- per month inclusive of daily bhatta of Rs. 100/- per day
as the deceased was required to go out of station on the vehicle
and took income of deceased as Rs. 60,000/- per year. The
Tribunal further accepted the age of deceased to be 45 years as
Claimant No. 1, his wife was aged about 41 years. The children,
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claimants No. 2 to 4 were teen aged children. The learned
Tribunal applied multiplier of 15. The amount of loss of future
earning was taken to be 9,00,000/- and by deducting 1/3rd
income, the same was taken to be Rs. 6,00,000/- as loss of
dependency. The statutory benefits were accorded at Rs. 2,000/-
towards funeral expenses, Rs. 2500/- towards loss of estate and
Rs. 5,000/- towards loss of consortium for applicant No. 1 i.e.
wife of deceased.
8. This Court does not find that learned Tribunal has
committed any mistake by taking the age of the deceased as 45
years and income of deceased to be 60,000/- per year. The
Insurance Company could not produce any evidence in support
of its case.
9. Coming to the submission of Mr. Mahajan, learned
advocate appearing for respondent Nos. 1 to 4 that though there
is no appeal filed for enhancement still claimants can pray for
enhancement in view of judgment in New India Assurance
Company Ltd. vs. Seema Sudam Auti and others , [2017(6)
Mh.L.J. 828]. In the said judgment, this Court considered the
judgment in the case of Nagappa vs. Gurudayal Singh and
others, (2003) 2 SCC 274, wherein the Apex Court has held that
Bhagyawant Punde
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"it is the duty of the claims tribunal as well as the appeal Court
to determine and award just and reasonable compensation and
that such duty is statutory irrespective of whether claim has
been made in respect thereof or not ." In the reported case the
Court had enhanced the amount of compensation in the appeal
by insurance company and in absence of appeal by claimants.
10. This Court finds that in the present case also no
amount towards future prospects was calculated. Considering
the age of deceased to be 45 years, 25% amount needs to be
added to loss of future income. The learned Tribunal has
considered loss of future income to be Rs. 6,00,000/-. There
needs to be 25% addition to the said amount. Thus, in addition
to compensation already directed to be paid, Rs. 1,50,000/-
needs to be added. In view of above, this Court finds that appeal
deserves to be dismissed, however, award needs to be modified
by adding 25% amount i.e. Rs. 1,50,000/- to the compensation
already awarded. The award therefore needs to be modified
accordingly. Hence, the following order:
ORDER
(I) First Appeal No. 2344 of 2008 is dismissed.
(II) Award dated 10.04.2007 be modified by adding Rs.
Bhagyawant Punde
{8} FA-2344-2008
1,50,000/- towards loss of future prospects. Appellant-
Insurance Company is directed to deposit amount of Rs.
1,50,000/- in this Court towards future prospects within
90 days from today along with interest from the date of
filing of claim petition i.e. 18.03.2005 till its actual
realisation. After the deposit of the amount,
respondents No. 1 to 4/claimants shall be entitled to
withdraw the same without making any formal
application.
(III) Appeal stands disposed of accordingly.
[KISHORE C. SANT, J.]
Bhagyawant Punde
