Bombay High Court
Asmita Omprakash Pandit And Anr vs Mahesh Nayankumar Navandar And Ors on 25 January, 2024
2024:BHC-AUG:2336
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 4966 OF 2017
ASMITA OMPRAKASH PANDIT AND ANR
VERSUS
MAHESH NAYANKUMAR NAVANDAR AND ORS
Mr. S. V. Mundhe, Advocate for the appellants
Mr. A. N. Sikchi, Advocate for respondent Nos. 1 and 2.
Mr. Swapnil Patil, Advocate h/f Mr. R. H. Dahat, Advocate for respondent
No.3.
CORAM : R. M. JOSHI, J.
DATE : 25th JANUARY, 2024
P.C. :-
1. This Appeal is filed under Section 173 of the Motor Vehicles Act by
the claimants for enhancement granted by the Tribunal in MACP No.
178/2012 by judgment and award dated 20/11/2015.
2. Parties are referred to as claimants, owner, driver and insurer for
the sake of convenience.
3. As per the case of the claimants deceased Omprakash was
proceeding along with Mahesh on 19/03/2012 from Osmanabad to Latur
in car bearing No. MH-24-V-4698. When the said vehicle reached to the
spot of the accident, driver of the car lost control over the same and
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gave forceful dash to the tree. In the said accident, deceased sustained
serious injuries and died on the spot. Claimants contended that the
deceased was aged about 40 years and was working as Manager at
Nawcon Infrastructure Construction Ct. Ltd on monthly salary of Rs.
15,000/-. Claim was resisted by the owner and driver of the vehicle by
filing written statement at Exh. 29 denying the allegations of rash and
negligent driver of the driver of the car. It is claimed that the vehicle was
insured with insurer.
4. The insurer filed written statement Exh. 23 denying age,
occupation and income of the deceased. Though no dispute is made with
regard to the insurance in respect of offending vehicle but it is claimed
that there was a breach of terms and conditions of the insurance policy
as the driver of the car was not holding valid and effective driving
license. On this count, liability was denied by the insurer.
5. Issues were framed at Exh. 31. Claimant No. 1 Asmita, wife of the
deceased, examined herself at Exh. 36 and placed documentary evidence
i.e. complaint Exh. 38, FIR (Exh. 39), Spot Panchnama (Exh. 40), PM
report (Exh. 41), insurance policy (Exh. 42), RC Book (Exh. 43). Driving
license of driver of the car was filed at Exh. 44. Claimants in order to
prove the factum of accident has not examined any eye witness but
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relied relied on police papers. Nothing is brought on record to take
exception to the genuineness of the said documents. The spot
panchnama shows that the vehicle went to the extreme right side and
gave dash against tree. No other vehicle is involved in the accident in
order to seek negligence on the part of any other person in the
occurrence of the accident. From FIR as well as other material placed on
record in the charge-sheet it is clear that the accident in question has
occurred due to the negligence of the driver of the car.
6. The owner and driver were not able to bring on record that the
accident has occurred on account of any mechanical fault or that the
driver was not responsible for the same in any manner whatsoever. The
Tribunal has held that the driver of the car was negligent. The said
finding does not deserve interference for want of challenge thereto.
7. Learned counsel for the claimants has sought to convince this
Court that the Tribunal committed error in discarding evidence of PW-2
Nitin (Exhibit 51). According to him the law is settled on the point that
merely because there is no documentary evidence on record indicating
the income of the deceased, the testimony of the employer cannot be
discarded and in case claimed of deceased cannot be ignored.
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8. Though there cannot be any dispute made with regard to the
proposition sought to be canvassed in this regard however the same
would have to be applied by taking into consideration facts and
circumstances of each case. Since the burden is on claimants to prove
income of deceased at the outset it must be established that he was
employed or doing occupational vocation. Needless to say that such
claim must be genuine and not concocted for the sake of seeking
additional compensation. On one side it is duty of the Court to determine
just compensation payable and at the same time there is obligation to
ensure that there is no undeserving / unmerited enrichment.
9. In the instant case the claimants do not state in their application
since when the deceased was working with PW-2 Nitin. It is vaguely
stated that he is working as a Manager with him. As against this Nitin in
his evidence does not claims as to the capacity in which he was
employed. Evidence of this witness is as vague as possible. It is pertinent
to note that the salary certificate is dated 01/03/2012 that is when the
deceased was alive. There is no explanation of whatsoever nature as to
what purpose that certificate was issued. In the light of the fact that this
witness is close relative of owner of vehicle in which deceased was
travelling, his evidence becomes absolutely doubtful. In cross-
examination he admits to have not informed to the concerned authorities
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names of employees or maintenance of statutory record. In that
circumstances, this Court concurs with the findings recorded by the
Tribunal that the evidence led by the claimants with regard to the
employment of the deceased is doubtful. This Court finds it appropriate
to add that on the face of it is the case of creation of record and
evidence by the claimants to seek more compensation. Tribunal therefore
has rightly refused to accept the said evidence.
10. Learned counsel for the claimants have also attempted to convince
this Court on the point that the notional income considered by the
Tribunal at rate of Rs.4000/- which is inadequate and it should have been
Rs.9000/- per month. To support his submission he placed reliance on
the judgment of this case in case of Sushila wd/o Subhash Mendhe Vs.
National Insurance Company Limited, Through its Branch Manager,
2019(1) ALL MR 658 wherein on the basis of oral evidence the income of
the deceased was held to be Rs.9000/- per month As far as present case
is concerned, as observed hereinabove in this case there is clearcut
attempt on the part of the claimants to create record in respect of the
employment of the deceased. This Court therefore finds no reason for
justification to concede to the arguments advanced on behalf of the
claimants for the enhancement of notional income. In order to hold that
the deceased is entitled by way notional income something in addition to
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what has been decided by the Tribunal, there might to have been
evidence as to what was the occupation or in what capacity he is
working. In absence of any such evidence on record it would not be
permissible for the Court to even apply the minimum wages for the
particular period applicable to the skilled workers. In the light of these
facts, there was no other option for the Court only to apply the minimum
wages of unskilled workers at the relevant time, but instead Tribunal has
held notional income @ Rs.6,000/- per month. There is no reason to
cause any interference therein.
11. However since future prospects was not considered by Tribunal,
in view of National Insurance Company Limited Versus Pranay Sethi
and Others, (2017) 16 SCC 680 having regard to the age of
deceased 25% of additional income towards further prospects needs to
be added.
12. Similarly this Courts also finds no impediment in enhancing the
compensation on other heads by adding a sum of Rs.40,000/- each
towards loss of filial consortium for claimants which comes to
Rs.80000/-, Rs. 15000/- wards funeral expenses and Rs.40,000/-
towards loss of estate. Since rate of interest granted by
Tribunal is maintained from the date of claim even for the enhanced
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compensation, no other addition is considered thereto. Hence the order:
ORDER
(i) Appeal stands partly allowed.
(ii) The impugned judgment and award stands modified as
under:
Sr. Heads Rs.
No.
1. Annual Income 5,60,000/-
Rs.32000/- + 25% = Rs. 40 000/-
Rs.40000/- x 14 multiplier
2. Loss of love and affection 30,000/-
3. Loss of consortium Rs.80,000 80,000/-
4. Loss of estate 15,000/-
5. Funeral Expenses 15,000/-
Total compensation 7,00,000/-
(iii) Rest of the judgment and award to remain unchanged.
(iv) Claimants to pay Court fees on enhanced compensation as
per rules.
(v) Amount deposited (along with accrued interest) by
respondents is permitted to be withdrawn by claimants.
(vi) The difference of compensation be deposited within a period
of six weeks.
(vii) No order as to costs.
(R. M. JOSHI, J.)
ssp
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