Bombay High Court

Mirabai Bhanudas Jawale And Ors vs Nitin Popat Dhiwar And Anr on 7 August, 2024

2024:BHC-AUG:17169

                                                                            FA 1063/2020
                                                     1


                                   IN THE HIGH COURT AT BOMBAY
                               APPELLATE SIDE, BENCH AT AURANGABAD

                                    FIRST APPEAL NO. 1063 OF 2020

            1.       Smt. Mirabai W/o. Bhanudas Jawale,
                     Age 57 yrs., Occu. Household,

            2.       Ajay S/o. Bhanudas Jawale,
                     Age 40 yrs., Occu. Service,

            3.       Girish S/o. Bhanudas Jawale,
                     Age 37 yrs., Occu. Nil,

            4.       Suhas S/o. Bhanudas Jawale,
                     Age 36 yrs., Occu. Service,

                     All R/o. Pokhardi, Tq. Nagar,
                     Dist. Ahmednagar.                          ....Appellants.
                                                                (Ori. Claimants)

                           Versus

            1.       Nitin S/o. Popat Dhiwar,
                     Age Major, Occu. Owner,
                     R/o. Plot No. 72, Yeshwant Talija,
                     Bhavani Nagar, Pipeline Road,
                     Savedi, Ahmednagar.

            2.       Reliance General Insurance Company Ltd.,
                     Through its Branch Manager,
                     "A" Wing, 2nd Floor Ambar Plaza,
                     Near Old Bus Stand, Ahmednagar.            ....Respondents
                                                                (Ori. Opponents 1 & 2)

            Mr. Umakant U. Wagh, Advocate for appellants.
            Mr. U.A. Sayyed, Advocate h/f. Mr. K.N. Shermale, Advocate for respondent
            No. 1.
            Mr. A.S. Usmanpurkar, Advocate for respondent No. 2.


                                               CORAM            : KISHORE C. SANT, J.
                                               CLOSED ON        : 01/08/2024
                                               DELIVERED ON     : 07/08/2024

            JUDGMENT :

1) This appeal is by the original claimants for enhancement in the

amount of compensation and challenging the judgment and order passed by

the learned Motor Accident Claims Tribunal, Ahmednagar dated 1.8.2017

passed in MACP No. 902/2011 to that extent. The learned Tribunal has

directed to pay amount of Rs. 3,24,000/- towards loss of dependency

considering the income of Rs.3,000/- p.m. of the deceased, towards

consortium Rs.25,000/-, towards love and affection Rs. 30,000/-, towards

ambulance charge Rs. 3,000/- and towards funeral expenses Rs. 5,000/-

and thus, awarded total compensation of Rs. 3,87,000/- to the appellants/

original claimants (for the purpose of convenience the appellants are

referred as 'claimants', respondent No. 1/owner of offending vehicle as

'owner' and respondent No. 2 as 'Insurance Company' hereinafter).

2) The facts in short are that deceased Bhanudas Jawale met with an

accident on 4.11.2011 when he was taking evening walk at about 7.45 p.m.

He was dashed by one Bajaj Pulsar motorcycle bearing registration No. MH-

16/AU-2127 which was coming from Aurangabad to Ahmednagar. The

claimants wife and three sons filed claim petition. In the claim petition, they

prayed for an amount of Rs. 9,20,000/-. The deceased was trained

mechanic of diesel engines, generator sets, pump sets etc. He was working

in one firm namely K.P. Bhalerao and Sons since 1972 and used to do job

work. He was earning Rs.10,000/- p.m. by doing the work of repairing the

above mentioned engines and Rs. 2,000/- to Rs.3,000/- from supply of milk

to the households at Ahmednagar. Thus, the income of the deceased was

claimed to be Rs.12,000/- p.m.

3) The owner filed written statement, stating that the motorcycle was

not driven in rash and negligent manner. The deceased abruptly came on

the road and received dash of the motorcycle.

4) The Insurance Company took the defence that it was the deceased

who was negligent. There was no fault on the part of motorcycle. The driver

of the motorcycle was not having valid and effective driving license. The age

and income of the deceased were denied.

5) Before the Tribunal, claimant No. 1 got herself examined on behalf of

all claimants at Exh. 22. In her cross examination, she accepted that

claimant Nos. 2 to 4 are in service in MIDC and are married. She could not

produce proof of actual income of the deceased.

6) PW 2 - Vishwesh Yashwant Bhalerao is the person who run a firm

namely M/s. K.P. Bhalerao and Sons. He deposed that the said firm is

having dealership of Kirloskar Company's diesel engine, water pump-set,

electric pump-set, generators and spare-parts. They also had the workshop

for repairing work. The deceased was working in the said firm since 1972.

The deceased had undergone the training programmes arranged by

Kirloskar Company from time to time. He proved various certificates at Exh.

20 showing that the deceased had undergone various training programmes.

So far as income in concerned, he deposed that the deceased was earning

Rs.9,000/- to Rs.10,000/- p.m. by doing the work of repairing engines. He

could not produce any entries to show that the firm used to send customers

to the deceased.

7) Witness No. 3 for the claimants deposed that the deceased used to

supply milk to his home every day. Witness No. 4 for the claimants also

deposed on the same line. Both these witnesses could not produce any

documents to show that they were taking milk from the deceased.

8) The claimants further relied upon the documents such as spot

panchanama, inquest panchanama, P.M. report, R.C. book and Insurance

Policy of offending vehicle and also driving licence of the driver of the

offending vehicle. The respondents did not produce any evidence in support

of their defence. After considering the evidence, the learned Tribunal passed

the award as stated above. The claimants are, thus, before this Court.

9) In this Court, the learned advocate for the claimants vehemently

argued that the deceased was skilled person, having special knowledge in

repairing of diesel engines, water pumps, generators etc. He was highly

demanded person for repairing work. The Tribunal ought to have considered

his income to be Rs.10,000/- p.m. as on every day he used to get 2-3

jobworks of repairing the engines. So far as the details of the offending

vehicle and license of the driver of the offending vehicle are concerned,

there is no dispute. He further submits that the age of the deceased was 56

years at the time of accident. The multiplier of 9 is rightly applied, however,

he submits that 10% future prospects ought to have been given which the

Tribunal has not given. He submits that towards loss of consortium, the

Tribunal has awarded only Rs.25,000/- to claimant No. 1 only and has not

considered award of consortium to claimant Nos. 2 to 4. Thus, the Tribunal

has not properly appreciated the loss of consortium. Even for love and

affection meager amount was awarded. Towards funeral expenses also the

amount of Rs.15,000/- ought to have been awarded by the Tribunal.

10) As regards considering notional income, the learned advocate for the

claimants relied upon judgment in the case of Neeta w/o. Kallappa Kadolkar

& Anr. Vs. Divisional Manager, Maharashtra State Road Transport

Corporation, Kolhapur reported as (2015) 3 SCC 590 and the Gazette of

India of the Central Government dated 31.5.2010, wherein the Ministry of

Labour and Employment published a notification specifying monthly

minimum wages to be Rs.8,000/-. The said notification is under sub-section

(1B) of section 4 of the Employee's Compensation Act, 1923. The learned

advocate also relied upon the judgments in the cases of Mohammed

Siddique and Anr. Vs. National Insurance Company Ltd. And Ors. reported

as (2020) 3 SCC 57 and Royal Sundaram Alliance Insurance Co. Ltd.,

Chennai Vs. Varsha Rajendra Pache & Ors. reported as 2017 96) Mh.L.J.

308.

11) The learned advocate for the Insurance Company vehemently

opposes the appeal. He submits that the Tribunal has rightly considered the

income of the deceased at the rate of Rs.3,000/- p.m. The claimants could

not produce any material to show the proof of income of the deceased. As

per the evidence of PW 2 also, the firm in which the deceased was working

is closed and thus, there is no question of his getting any salary. About the

milk business, he submits that there is no evidence. So far as interest on

future prospects is concerned, he relied upon the judgment in the case of

National Insurance Company Limited Vs. Aisha Bano & Ors. decided by

Jammu and Kashmir and Ladkh High Court in Mac App No. 33/2022, CM No.

6083/2022 and CM No. 3307/2023 reported as MANU/JK/0700/2023 and

the judgments decided by this Court in the cases of Wahida Abdul Rauf

Chaus and Ors. Vs. Sharad Namdeo Thange & Ors. in the First Appeal No.

849/2011 dated 18.10.2022 reported as MANU/MH/3730/2022 and Suman

& Ors. Vs. The Branch Manager, Bajaj Allianz Genereal Insurance Co. & Ors.

in First Appeal No. 1381/2017 dated 22.11.2021 reported as

MANU/MH/4390/2021.

12) Thus, looking to the submissions and the judgments relied upon by

the respective parties, this Court proceed further to examine, whether the

compensation awarded in this case is fair and reasonable ?, whether the

Tribunal has rightly considered the income of the deceased to be Rs.3,000/-

p.m. ?, whether the Tribunal was right in awarding consortium amount to

claimant Nos. 2 to 4 and whether the funural expenses are rightly granted

by the Tribunal ?

13) So far as income of the deceased is concerned, this Court finds that

there is ample evidence on record to show that the deceased was a skillful

worker. To consider the income of the deceased to be Rs.3,000/- only is

certainly on much lower side. In the case of Neeta Kadolkar (supra), the

Supreme Court had relied upon the minimum wages and held that in

absence of salary slip/certificate, the monthly salary of both the deceased

ought to have been considered at the rate of Rs.12,000/- p.m. In the said

case, the accident had taken place on 22.3.2011. In the Gazette of India for

the year the minimum wages for the year 2010 was declared to be

Rs.8,000/- p.m. In view of the above, this Court holds that in no case, the

income of the deceased can be taken less than Rs.8,000/- p.m.

14) So far as contributory negligence is concerned, the Apex Court in the

case of Mohammed Siddique (supra) has laid down that the contributory

negligence is the fact which needs to be established. In the said case, the

High Court had reduced the compensation by 10% towards contributory

negligence. The said award was set aside by the Apex Court. In the case of

Royal Sundaram (supra), there was no proof to prove the salary of the

deceased. The employer had deposed that he paid the salary of Rs.10,000/-

p.m. In that case, the accident took place on 16.1.2012. The Apex Court

held that the salary ought to have been taken at Rs.9,000/- p.m. In that

case, the Tribunal and the appellate Court had disbelieved the oral evidence

of employer about the salary. In this case, this Court finds that the evidence

of employer i.e. P.W. 2 should have been relied upon by the Tribunal by

considering that the deceased was a skilled worker and used to work in the

firm prior to the closing of the firm and thereafter, was doing the jobwork of

repairing engines on job basis. This Court finds no difficulty in accepting the

case of the claimant considering the accident took place in the year 2011.

15) Coming to the submission of the Insurance Company, this Court does

not find much substance. So far as the judgment relied upon by the learned

advocate for the Insurance Company in the case of National Insurance

Company Limited Vs. Aisha Bano and Ors. (supra) is concerned, it is in

respect of award of interest on future prospects. In all the three judgments

relied upon by the learned advocate for the Insurance Company, it was held

that the future prospects are events in future and therefore, no interest be

awarded from the date of claim. This Court finds that this interest is not by

way of any penalty. It is only for the reason that the claimants are deprived

from compensation immediately for some period and therefore, they should

not be deprived of such interest. Considering the above, this Court holds

that the award of the Tribunal needs to be modified.

16) In the present case, the deceased was working as trained mechanic.

Considering the date of accident in the year 2011, the income ought to have

been taken Rs.8,000/- p.m. Thus, this Court holds that the notional income

of the deceased was Rs.8,000/- p.m. The said amount needs to be deducted

by 1/3rd towards personal expenses of the deceased as claimant Nos. 2 to 4

are in employment and were not dependent on the deceased. The amount

would come to Rs.5,334/- p.m. (rounded to Rs.5350/-) i.e. Rs.64,200/- per

year. The age of the deceased was 57 years at the time of accident. The

multiplier would be of 9 as rightly applied by the Tribunal. Considering that

the figure comes to Rs. 5,77,800/- + 10% towards future earning. Thus,

the total compensation comes to Rs. 6,35,580/- towards loss of

dependency. This Court holds that the consortium amount would come to

Rs.1,60,000/-, amount towards funeral expenses would come to

Rs.15,000/- and amount towards loss of estate would come to Rs.15,000/-.

Thus, the claimants are entitled to get total compensation as follows :-

        Towards loss of dependency            Rs. 6,35,580/-
        Towards consortium                    Rs. 1,60,000/-
        Funeral expenses                      Rs. 15,000/-
        Loss of estate                        Rs. 15,000/-
        Total                                 Rs. 8,25,580/-

Thus, this Court holds that claimants are entitled to receive amount

of Rs. 8,25,580/- towards compensation on all counts. Thus, the amount of

compensation be paid accordingly by deducting Rs. 3,87,000/- which is

already awarded by the Tribunal. The enhanced amount shall carry interest

as awarded by the Tribunal i.e. 9% p.a. from the date of claim petition till

realization of the amount. Considering the above facts, this Court holds that

claimant No. 1 is entitled to receive 55% of the amount of compensation

and claimant Nos. 2 to 4 are entitled to receive 15% each. In view of the

discussion made above, the impugned judgment and award is modified

accordingly. Hence, the following order.


                                    ORDER

(I)     Appeal is partly allowed.

(II)    Respondent Nos. 1 and 2 do jointly and severally pay amount of Rs.

8,25,580/- to the appellants including no fault liability by deducting Rs.

3,87,000/- which was already awarded by the Tribunal.

(III) Appellant No. 1 is entitled to receive 55% of the amount of

compensation and appellant Nos. 2 to 4 are entitled to receive 15%, each,

of the amount of compensation.

(IV) The amount should carry interest at the rate of 9% p.a. on enhanced

amount from the date of filing of the claim petition i.e. 15.12.2011 till

actual realization of the amount.

(V) The amount be deposited in this Court within eight weeks from today.

(VI) The appeal stands disposed of with no order as to costs.

[KISHORE C. SANT, J.] SSC/

17) At this stage, learned advocate for the appellant seeks direction to