Bombay High Court
Babu Kashinath Shembade And Anr vs Ramu Bajirao Kathale And Ors on 25 April, 2025
2025:BHC-AUG:11964
1 FA1557.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO. 1557 OF 2020
1] Babu s/o Kashinath Shembade,
Age : 33 years, Occu. Agriculture,
2] Ashabai w/o Babu Shemde,
Age : 33 years. Occu. Household,
Both R/o. Bhatewadi, Tq. Patoda, Dist. Beed. ...Appellants
[Orig. Claimants]
Versus
1] Ramu s/o Bajirao Kathale,
Age : 49 years, Occu. Service Owner,
R/o. Dongarkinhi, Tq. Patoda,
District Beed.
2] Navnath s/o Pandurang Doke,
Age : 37 years, Occu. Driver,
R/o. Nalwandi, Tq. Patoda,
Dist. Beed.
3] New India Assurance Company Ltd.,
Through its Branch Manager,
Branch Office, Sathe Chowk, Jalna Road,
Beed Tq. & Dist. Beed. ...Respondents
.......
Mr. R. G. Hange - Advocate for the Appellants
Mr. M. M. Ambhore - Advocate for Respondent No. 3
.........
CORAM : NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT : 07.04.2025
DATE OF PRONOUNCING THE JUDGMENT : 25.04.2025
JUDGMENT :
-
1. This is an Appeal under Section 173 of the Motor Vehicles
Act, 1988 [hereinafter referred to 'M.V. Act'] by the Claimants in Motor
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Accident Claim Petition No. 137 of 2018 [for short 'Claim Petition'],
decided by the learned Member, Motor Accident Claims Tribunal, Beed
[hereinafter referred to as 'Tribunal'], by Judgment and Award dated
02.08.2019, partly allowing the Claim Petition by holding the Appellants
entitled to receive compensation of Rs.4,14,100/- from Respondent
Nos.1, 2 and 3, who are the Owner, Driver and Insurance Company of
the offending vehicle.
2. The facts giving rise to the present Appeal are as under : -
2.1. The Appellants approached the learned Tribunal by way of
the above referred Claim Petition contending that they were the parents
of Deceased Ashwini d/o Babu Shembade, who was 6 years old school
going child. On 17.02.2018, at about 08:30 am, when the Deceased was
going to Zilla Parishad School, Bhatewadi, situated at Beed -
Ahmednagar road and while crossing the road, the Car of Maruti Suzuki,
Baleno make, bearing No. MH-23/AS-1933 came in high speed in rash
and negligent manner and gave dash to the Deceased. The Deceased
suffered severe injuries and she was taken to Hospital at Beed and later
on to the Hospital at Ahmednagar. The Deceased succumbed to the
grievous injuries on 20.02.2018. The Deceased was studying in 1 st Std.,
having good health and was a brilliant child. She used to get distinction
in her academics and also used to participate in other activities. The
Deceased had a good career, had she been alive. They lost their child
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due to rash and negligent driving of the said Car driver and, therefore,
they were entitled to get the compensation of Rs. 7,00,000/- from the
Respondents with interest @ 18% p.a.
2.2. Respondent Nos. 1 and 2 i.e. the Driver and the Owner of
the said Car did not respond to the Claim Petition and did not file their
Written Statement and hence, the learned Tribunal passed the Order
below Exh. 1 to proceed against them without Written Statement.
2.3. Respondent No. 3 - Insurance Company contested the Claim
Petition by filing Written Statement at Exh.16. It has denied the
contents of the Claimants. The Claimants are bound to prove their
contentions and the compensation claim was excessive. There was delay
of six days in lodging the report with the concerned Police Station in
respect of the accident. They prayed to dismiss the Claim Petition.
2.4. The Claimants led their evidence by way of Evidence
Affidavit of Appellant No. 1, at Exh. 19. He was cross-examined by the
learned Advocate appearing for the Respondents. The Claimants brought
on record the Police Papers, Death Certificate of their Daughter and
Medical Bills. The Appellants/Claimants examined the eye-witness to the
incident below Exh.32 and he was also cross-examined by the
Respondents.
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2.5. The Respondents did not lead any evidence. The learned
Tribunal considered the submissions of both sides and the evidence
available on record, and passed the aforesaid Judgment and Award.
3. Heard learned Advocate for the Appellants and the learned
Advocate for the Respondent / Insurance Company. There is no dispute
that on 15.11.2021, this Court issued notice for final disposal to
Respondent Nos. 1 to 3. The office endorsement shows that the
Respondents are served. None for Respondent Nos. 1 and 2.
4. Learned Advocate for the Appellant tendered across the bar
a copy of the Judgment in Kurvan Ansari Alias Kurvan Ali and Another
Versus Shyam Kishore Murmu and Another, (2022) 1 SCC 317 and
Kishan Gopal and another Versus Lala and others, (2014) 1 SCC 244. It
is submitted by the learned Advocate for the Appellants that the
impugned Judgment and Award is not challenged by any of the
Respondents. He submits that, the Deceased was a minor child and the
Appeal can be considered and decided in the light of the aforementioned
judgments and Compensation be enhanced.
5. The learned Advocate for the Insurance Company does not
dispute the aforesaid contentions of the learned Advocate for the
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Appellants. He submits that the Appeal can be disposed off in the light
of the above referred Judgments.
6. In the above referred Judgment in Kishan Gopal (supra), it
was the Appeal under the M.V. Act. The deceased, who was the son of
the Claimants therein, was aged 10 years. According to the Claimants
therein, the Deceased son would have earned Rs. 2,000/- per month
after attaining the age of 18 years and he would have lived upto 70
years, and prayed that multiplying by 52, the compensation be worked
out at Rs.12,48,000/-. By considering the judgment of the Hon'ble
Supreme Court in Lata Wadhwa and others v. State of Bihar, (2001) 8
SCC 197, it was observed that " it would be just and reasonable for us to
take his notional income at Rs.30,000/- per annum and further taking
the young age of the parents, namely, the mother who was about 36
years old, at the time of accident, by applying the legal principles laid
down in the case of Sarla Verma v. Delhi Transport Corporation, (2009)
6 SCC 121, the multiplier of 15 can be applied to the multiplicand and
determined Rs.4,50,000/- and Rs. 50,000/- under conventional heads
towards loss of love and affection, funeral expenses, last rights etc. The
compensation was determined at Rs. 5,00,000/-.
7. In Kurvan Ansari (supra), which was the Appeal from the
decision rendered in the Claim Petition filed by the Claimants therein
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under Section 163-A of the M.V. Act, the notional income of deceased
child aged 7 years was considered Rs.25,000/- per annum and by
applying multiplier of 15 as prescribed under Schedule II for the
claimants under Section 163-A of the M.V. Act, the compensation was
determined at Rs. 3,75,000/- and Rs. 80,000/- towards filial consortium
for the two claimants and Rs. 15,000/- towards funeral expenses were
added and the total compensation was determined at Rs. 4,70,000/-.
8. Admittedly, in the case at hand, the Deceased was a girl
child aged 6 years of age at the time of accidental death. It would not
be out of place to refer to the observations of the Hon'ble Supreme
Court of India in New India Assurance Co. Ltd. Versus Satender and
others, (2006) 13 SCC 60, and in Kaushlya Devi Versus Karan Arora and
others, (2007) 11 SCC 120, which were the Appeals under the M.V. Act
where the deceased were the minor and the issue was in respect of the
determination of compensation. The judgment in the case of Lata
Wadhwa (supra), and other Judgments have been considered in these
two Judgments. It is observed therein that, "there are some aspects of
human life which are capable of monetary measurement, but the totality
of human life is like the beauty of sunrise or the splendour of the stars,
beyond the reach of monetary tape-measure. The determination of
damages for loss of human life is an extremely difficult task and it
becomes all the more baffling when the deceased is a child and/or a
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non-earning person. The future of a child is uncertain. Where the
deceased was a child, he was earning nothing but had a prospect to
earn. The question of assessment of compensation, therefore, becomes
stiffer. The figure of compensation in such cases involves a good deal of
guesswork. In cases, where parents are claimants, relevant factor would
be age of parents." It is further observed that, "in cases of young
children of tender age, in view of uncertainties about, neither their
income at the time of death nor the prospects of the future increase in
their income nor chances of advancement of their career are capable of
proper determination on estimated basis. The reason is that at such an
early age, the uncertainties in regard to their academic pursuits,
achievements in career and thereafter advancement in life are so many
that nothing can be assumed with reasonable certainty. Therefore,
neither the income of the deceased child is capable of assessment on
estimated basis nor the financial loss suffered by the parents is capable
of mathematical computation." It is further observed that, "this Court in
Lata Wadhwa while computing compensation made distinction between
deceased children falling within the age group of 5 to 10 years and age
group of 10 to 15 years".
9. As seen from the papers, the Claimants are the parents of
the deceased child. The claimants were working as the Sugarcane
Cutters and at the time of incident, were working at the Sugarcane
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Factory at different place. The deceased child was studying in the 1 st
std., in the Zilla Parishad Primary School. There is nothing to show as to
whether the Deceased child was the only child of the Claimants.
According to the Claimants, Deceased child was clever and used to
participate in the activities of the School and stand first in the same. She
was the support for them in their old age. Considering the background
of the Claimants, there is every possibility that after becoming major, the
Deceased girl child would have worked and rendered financial support
to the Claimants till her marriage. Considering Rs.30,000/- per year
income of the Deceased child in the village and having background as
that of the Claimants, the marriages of daughters are performed soon
after attaining the majority and latest by the age of 25 years. By
considering 25 years as the age when the deceased would have got
married after attaining the majority, she would have been contributing
financially to the Claimants for a period of eight [8] years [Between 18
years and 25 years of Age]. By taking into consideration the notional
income of Rs.30,000/- per year as considered in the above referred
Judgment in Kishan Gopal (supra), for eight [8] years the income of
Deceased would come to Rs.2,40,000/-. As regards the loss of estate,
loss of consortium and funeral expenses, as per Judgment of the Hon'ble
Supreme Court of India in National Insurance Company Limited v.
Pranay Sethi & Ors., (2017) 16 SCC 680 and Magma General Insurance
Co. Limited v. Nanu Ram alias Chuhru Ram, 2019 (4) Mh.L.J. 1 , it will
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have to be included in the compensation as Rs. 15,000/-, Rs. 80,000/-
[Rs.40,000 x 2] and Rs.15,000/-, respectively. The medical bills (round
figure which is considered by the learned Tribunal as Rs.1,44,100/-) is
not in dispute. The total compensation comes to Rs.4,94,100/-. As there
is no challenge by any of the sides on any other aspect, the impugned
Judgment and Award stands modified only to the extent of total
compensation amount worked out as above.
10. The Appeal stands disposed off accordingly.
[NEERAJ P. DHOTE]
JUDGE
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 25/04/2025 15:29:02
SG Punde
