[Cites 7, Cited by 0]
Bombay High Court
Ushabai Janrao Patil And Ors vs Ashok Rambhau Sunaskar And Ors on 19 December, 2025
2025:BHC-AUG:36303
FA-1741-2017
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1741 OF 2017
1. Ushabai Janrao Patil
Age 35 years, Occupation Household,
2. Deepak Janrao Patil
Age 17 years, Occupation Education
3. Sunita Janrao Patil
Age 15 years, Occupation Education
4. Dasharath Janrao Patil
Age 13 years, Occupation Education
(Appellant no.1 is for herself and
mother hence Natural guardian of
other appellants)
All R/o Rajur, Post- Aingaon,
Tal. Bodwad. ... Appellants
[Ori. Claimant]
Versus
1. Ashok Rambhau Sunaskar
Age 45 years, Occupation Business,
R/o Harankhed, Tal. Bodwad,
Dist. Jalgaon.
2. The United India Insurance
Company Ltd.,
Through the Divisional Manager,
Mansingh Market, Railway Station Road,
Jalgaon.
[3. Sachin Samadhan Sunaskar
Age 35 years, Occupation Driver,
R/o Harankhed, Tal. Bodwad,
Dist. Jalgaon]
Deleted name of Respondent no.3
as per order dated 29.09.2023. ... Respondents
FA-1741-2017
-2-
.....
Mr. M. M. Bhokarikar, Advocate for the Appellants.
Mr. S. N. Suryawanshi, Advocate for Respondent No.1.
Mr. A. B. Gatne, Advocate for Respondent No.2.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 12.12.2025
Pronounced on : 19.12.2025
JUDGMENT :
1. Dissatisfied by the quantum of compensation awarded by
learned Motor Accident Claims Tribunal, Jalgaon in Motor Accident
Claim Petition No. 114 of 2009, on account of claim petition at the
instance of heirs of deceased Janrao, who suffered accidental death
on 02.12.2008, the present appeal has been preferred.
2. Claim was set up by heirs of late Janrao Patil on the premise
that on 02.12.2008, while Janrao was proceeding to conduct his
business of selling bakery products on his bicycle from Rajurgaon
towards Anegaon, he suffered dash of rickshaw bearing no. MH-19-AE
2378 coming from opposite direction and suffered fatal injuries and
succumbed to the same. Hence, by invoking Section 166 of the Motor
Vehicles Act, 1988, claim of Rs.7,50,000/-was urged for with interest.
The claim was resisted by respondent no.2 therein-Insurance
Company vide Exhibit 16. On appreciation of oral and documentary
FA-1741-2017
evidence, by order dated 10.03.2017, claim was partly allowed, i.e. to
the tune of Rs.6,03,000/- with 7.5% rate of interest.
Dissatisfied by the quantum, and for non consideration of
compensation under other heads, claimants have preferred instant
appeal.
3. According to learned counsel for the claimants, deceased was
around 39 years of age and was conducting business of selling bakery
products. That, learned Tribunal had rightly held negligence on the
part of rickshaw driver. However, according to him, while
ascertaining compensation, learned Tribunal has considered barely
Rs.4,000/- as notional income. That, in fact, considering the nature of
business, according to him, it ought to have been considered as
Rs.6,000/- and thereafter calculations ought to have been made.
That, in view of dependency, 1/4th ought to have been deducted and
in view of above age of deceased, multiplier of 15 ought to have been
applied. But, according to him, learned Tribunal has failed to consider
the same. He also pointed out that, apart from not granting
compensation under the head of consortium, learned Tribunal has
also failed to consider 40% rise towards future prospects. For all
above reasons, he seeks enhancement by modifying the award.
FA-1741-2017
4. In answer to above, learned counsel for the Insurance Company
would justify the judgment and award pointing out that there is
correct appreciation, more particularly in view of the pleadings of the
parties. He pointed out that, claimants themselves had quoted age of
deceased as 44 years. Moreover, as there was no distinct proof of age
of deceased, it is his submission that, postmortem [PM] report was
the right document to be relied and the same has been relied by the
Tribunal also. Therefore, according to him, in view of the age
reflected in PM report as 45, multiplier applicable is of 13 and the
same has been rightly applied.
5. As regards to ground of entitlement for 40% rise towards future
prospects, he strongly opposed by pointing out that here, admittedly
deceased was selling bakery products and as such was self employed.
According to him, in view of judgment of Hon'ble Apex Court in the
case of Sarla Verma and others v. Delhi Transport Corporation and
others MANU/SC0606/2009, only when there is evidence about
prospects for rise in income, only in those exceptional cases, future
prospects can be considered and not otherwise. Lastly, he justified
and supported the findings and conclusion reached by Tribunal. He
placed on record judgment of this Court in New India Assurance Co.
Ltd. v. Alpa Rajesh Shah reported in 2014 (1) Bom.C.R. 755.
FA-1741-2017
6. After hearing above submissions and on going through the
record, here, claimants, who are heirs of deceased Janrao, are taking
exception to the judgment and award of trial court primarily on three
grounds i.e. failing to consider age of deceased to be below 40 years
and thereafter applying appropriate multiplicand; secondly,
considering mere notional income to the tune of Rs.4000/- and not
Rs.6000/- and thirdly, non consideration of future prospects of
deceased.
Multiplier
7. As regards to first objection is concerned, as pointed out by
learned counsel for the respondent-Insurance Company, it is emerging
that in the claim petition, age of deceased apparently reflects as 44
years. Copy of PM report, which is also a part of record, shows age of
deceased as 45 years. Even in cross, wife of deceased has admitted
age of her husband to be 45 years. Therefore, there is overwhelming
evidence on the point of age of deceased as 45 years. For said age
group (41 to 45 years), in view of Sarla Verma (supra), multiplier of
14 would apply. However, Tribunal has applied the multiplier of 13
which is applicable to age group of 46 to 50 years. Therefore
interference in this regard has become imperative.
FA-1741-2017
Notional Income
8. The second ground of challenge is considering mere notional
income of Rs.4000/- and not Rs.6,000/-. Here, as pointed out, there is
no distinct evidence on behalf of claimants regarding alleged business
of sell of bakery products by the deceased. As pointed out, in para 9
of the judgment of Tribunal, wife has admitted in her cross that main
occupation of her husband and source of income was labour work.
This is contrary to the case set up that, deceased earned by
conducting business of sell of bakery products. Therefore, in absence
of evidence on actual occupation and earnings, consideration of
Rs.4,000/- as notional income by Tribunal cannot be faulted at.
Future Prospects
9. As regards to ground of non consideration of future prospects is
concerned, learned counsel for Insurance Company has placed on
record judgment of this Court in Alpa Rajesh Shah (supra) wherein,
observations of the Hon'ble Apex Court in the case of Reshma Kumari
and other v. Madan Mohan and another [Civil Appeal No. 4646 of
2009 decided on 02.04.2013] reported in 2013 (3) Bom.C.R. 19(SC),
are reproduced that unless there is distinct evidence suggesting
potential or prospects of rise in income, only in such circumstances, in
cases of person who are self employed, future prospects can be
FA-1741-2017
considered. Here, as stated above, firstly, there is no evidence that
deceased conducted business of sell of bakery products. On the
contrary, wife of deceased herself has admitted that he was earning
by doing labour work. Therefore, with such quality of evidence, no
case was made out for grant of distinct compensation under future
prospects.
Conventional heads
10. As regards compensation under the heads 'loss of consortium',
'loss of love and affection' and 'funeral expenses', the same is awarded
by the Tribunal by referring the decision of the Hon'ble Apex Court in
the case of Rajesh and others v. Rajbir Singh and others [2013 ACJ
1403 (SC)]. As pointed out by the learned counsel for the respondent
Insurance Company, in National Insurance Company v. Pranay Sethi
and others MANU/SC/1366/2017 the said decision in Rajesh is held
as not binding precedent by the Hon'ble Apex Court as it has not
taken note of earlier decision in Reshma Kumari (supra).
11. In view of the above as well as the ratio laid down by the
Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd.
V. Nanu Ram and others MANU/SC/1012/2018, the amount of
Rs.50,000/- awarded by the Tribunal to petitioner no.1 towards loss
FA-1741-2017
of consortium needs to be reduced to Rs.40,000/-. However,
petitioner nos. 2 to 4 also need to be awarded Rs.40,000/- each
towards parental consortium. Therefore, total compensation under
the head 'loss of consortium' would be Rs.1,60,000/-
12. The amount of Rs.60,000/- has been awarded by the Tribunal
to claimant nos. 2 to 4 towards loss of love and affection. However, it
has been observed by the Hon'ble Apex Court in the case of United
India Insurance Company Limited v. Satinder Kaur alias Satwinder
Kaur and others (2021) 11 SCC 780 that, awarding compensation
towards loss of love and affection as a separate head is not justified.
The observation of the Hon'ble Apex Court on this aspect in para 34
and 35 are reproduced as under :
"34. At this stage, we consider it necessary to provide
uniformity with respect to the grant of consortium, and
loss of love and affection. Several Tribunals and the High
Courts have been awarding compensation for both loss of
consortium and loss of love and affection. The
Constitution Bench in Pranay Sethi [(2017) 16 SCC 680],
has recognised only three conventional heads under which
compensation can be awarded viz. Loss of estate, loss of
consortium and funeral expenses. In Magma General
[(2018) 18 SCC 130], this Court gave a comprehensive
interpretation to consortium to include spousal
FA-1741-2017
consortium, parental consortium, as well as filial
consortium. Loss of love and affection is comprehended in
loss of consortium.
35. The Tribunals and the High Courts are directed to
award compensation for loss of consortium, which is a
legitimate conventional head. There is no justification
award compensation towards loss of love and affection as
a separate head."
In view of the above directions of the Hon'ble Apex Court, the
petitioner nos. 2 to 4 will not be entitled for separate compensation
towards loss of love and affection.
13. Compensation of Rs.25,000/- towards funeral expenses needs
to be reduced to Rs.15,000/-.
14. The Tribunal has not awarded any amount under the
conventional head 'loss of estate'. As per the ratio laid down in
Pranay Sethi (supra), the claimants are entitled for Rs.15,000/-
towards the same.
15. Resultantly, the computation of compensation would be as
under :
FA-1741-2017
Sr. Heads Amount (Rs.)
No.
1 Loss of dependency Rs.5,04,000/-
3000 X 12 X 14 multiplier
2 Loss of consortium to petitioner no.1 Rs.1,60,000/-
and parental consortium to petitioner
nos. 2 to 4 (Rs.40,000/- each)
3 Funeral expenses Rs.15,000/-
5 Loss of Estate (not awarded by Tribunal) Rs.15,000/-
5 Total compensation Rs.6,94,000/-
6 Compensation awarded by the Rs.6,03,000/-
Tribunal
7 Enhanced compensation Rs.91,000/-
(6,94,000 - 6,03,000)
Hence, following order is passed :
ORDER
I. The First Appeal is partly allowed with proportionate costs.
II. Impugned judgment and award dated 10.03.2017 passed by the
Chairman, Motor Accident Claims Tribunal, Jalgaon in M.A.C.P.
No. 114 of 2009 is modified.
III. Respondent No.2-insurance company to pay enhanced
compensation of Rs.91,000/- to the claimant-appellant no.1
within 12 weeks from today along with interest @ 7.5% per
annum from the date of filing of the claim petition till
realization.
FA-1741-2017
IV. Modified award be prepared accordingly.
V. Claimant-appellant no.1 to pay court fees on the enhanced
compensation as per rules.
VI. On deposit of the amount by the Insurance Company, claimant-
appellant no.1 is permitted to withdraw the same.
[ABHAY S. WAGHWASE, J.]
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