Bombay High Court
Divisional Manager, New India ... vs Tina Wd/O Nitin Hadke And Others on 9 September, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:10724
J FA-995-2022.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.995 OF 2022
APPELLANT : Divisional Manager,
Ori. Resp. No.2 on R.A. New India Assurance Co. Ltd., Ganesh
Chamber, Lakshmi Nagar Square,
Nagpur, through the Regional
Manager, Nagpur Regional Office at 1 st
Floor Riaan House, Opposite
Kasturchand Park, Mohan Nagar,
Nagpur.
..VERSUS..
RESPONDENTS : 1 Tina Wd/o Nitin Hadke,
Aged about 33 years, Occupation
Original Claimants on R.A.
Service
2 Arnav Nitin Hadke,
Aged 1 ½ years, being minor,
represented by his mother, respondent
No.1.
3 Vitthal Narayan Hadke (Deleted),
Aged 69 years, Occupation
4 Lalita Vithal Hadke,
Aged 65 years, Occupation Household.
All R/o Plot No.19, Umred Road, near
Hanuman Mandir, Ramkrushna Nagar,
Ayodhya Nagar, Dighori, Nagpur.
Original opponent No.1, on 5 Nilesh Subhash Sadavarte,
R.A.
Aged about Major, Occu. Owner, R/o
Plot No.13, Santaji Society, Balpande
Layout, Nagpur.
TAMBE
J FA-995-2022.odt
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Mr B. P. Bhat, Advocate for Appellant.
Mr V. B. Bhise, Adv. h/f Mr J. Y. Ghurde, Advocate for Respondent No.5.
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CORAM : M. W. CHANDWANI, J.
DATED : 9th SEPTEMBER, 2024.
ORAL JUDGMENT
1. Heard.
2. Admit.
3. Correctness of the impugned award dated
05.07.2022 passed by the Motor Accident Claims Tribunal,
Nagpur, has been challenged in the instant appeal, whereby the
Tribunal has granted compensation to the original claimants on
account of death of deceased Nitin Vitthal Hadke, who died in
a vehicular accident on 16.06.2017.
4. The main ground raised in this appeal is that the
original claimant No.3, father of deceased Nitin, claiming
himself to be the dependent of the deceased died on
22.04.2022 during the pendency of his claim petition.
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J FA-995-2022.odt
5. The contention is that the Tribunal, while deducting
motor accident compensation towards personal expenses of
deceased Nitin, did not consider the factum of death of one of
the petitioners/dependants and while calculating the personal
expenses, the Tribunal ought to have considered that there are
three dependants of the deceased and accordingly should have
deducted the personal expenses @ 1/3rd of the assessed income
instead of 1/4th.
6. It is to be noted that when the petition came to be
filed, there were four dependants. The original claimant No.1 is
a widow, whereas the original claimant No.2 is a minor son and
original claimant Nos.3 and 4 are the parents of the deceased.
The Tribunal considered the number of dependants as four and
while considering the personal expenses of deceased Nitin,
deducted 1/4th of the assessed income towards personal
expenses of the deceased. It is a matter of record that the father
of the deceased namely Vitthal Narayan Hadke, petitioner
No.3, died on 22.04.2022, during the pendency of the
TAMBE
J FA-995-2022.odt
petition, which is recorded by the Tribunal itself.
7. The claims and legal liabilities crystallize at the time
of accident itself. Therefore, the entitlement of the claimants at
the time of accident is to be considered. Changes post thereto,
ordinarily do not affect pending proceedings. Therefore, the
insurer cannot seek benefit of subsequent death of the
deceased's dependant during pendency of the legal
proceedings. Subsequent death of the deceased's dependant
during pendency of the petition cannot be a reason for
reduction of the motor accident compensation. Therefore, in
my view, the Tribunal has rightly deducted 1/4th of the assessed
income towards personal expenses.
8. A reference can be made to the decision of the
Hon'ble Supreme Court in the case of Kirti and another vs.
Oriental Insurance Company Ltd., (2021) 2 SCC 166, wherein
para 9 of the decision, the Hon'ble Supreme Court has
observed as under :
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J FA-995-2022.odt
"9. We have thoughtfully considered the rival
submissions. It cannot be disputed that at the time of
death, there in fact were four dependents of the deceased
and not three. The subsequent death of the deceased's
dependent mother ought not to be a reason for reduction
of motor accident compensation. Claims and legal
liabilities crystallise at the time of the accident itself, and
changes post thereto ought not to ordinarily affect
pending proceedings. Just like how appellant claimants
cannot rely upon subsequent increases in minimum
wages, the respondent insurer too cannot seek benefit of
the subsequent death of a dependent during the
pendency of legal proceedings. Similarly, any concession
in law made in this regard by either counsel would not
bind the parties, as it is legally settled that advocates
cannot throw away legal rights or enter into arrangements
contrary to law."
9. In view of the above, the appeal is devoid of merits.
Hence, it is dismissed.
(M. W. CHANDWANI, J.)
Signed by: Mr. Ashish Tambe
TAMBE
Designation: PA To Honourable Judge
Date: 26/09/2024 13:25:20
