Bombay High Court
Kirti Shivaji Kothule And Ors vs Suresh Lahanu Ghayamukte And Ors on 27 March, 2025
2025:BHC-AUG:10852
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FA 97.24 R.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 97 OF 2024
1. Smt. Kirti w/o. Shivaji Kothule,
Agd 37 years, Occ. Household,
2. Master Rohan S/o. Shivaji Kothule,
Age 14 years, Occ. Education.
3. Ku. Aradhya d/o. Shivaji Kothule,
Age 9 years, Occ. Education
(Appellant Nos. 2 and 3 are minor
through through Appellant No.1
Natural guardian mother).
4. Smt. Narmada w/o. Eknath Kothule,
Age 76 years, Occ. Nil
All R/o. Khadaki, Tq. Nagar, Dist. Ahmednagar.
.. APPELLANTS
( Orig. claimants)
VERSUS
1. Shri Suresh s/o. Lahanu Ghyamukte,
Age 58 years, Occ. Service,
R/o. Visapur, Near Jagdamba Mandir,
Visapur, Tq. Shrigonda, Dist. Ahmednagar.
2. Shri Yogesh s/o. Babasaheb Nagargoje,
Age 41 years, Occ. Driver,
R/o. Plot No.1, Survey No. 65/2,
Suryanagar, Near Aurangabad Road,
Savedi, Ahmednagar, Tq. & Dist. Ahmednagar.
3. The Branch Manager,
New India Assurance Company Ltd.,
Near Ashoka Hotel, Abat Building,
Zendigate, Ahmednagar, Tq. & Dist. Ahmednagar.
.. RESPONDENTS.
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FA 97.24 R.odt
Mr. D.S. Bhapkar, Advocate for appellants,
Mr. R.S. Kasar, Advocate for respondent Nos. 1 and 2
Mr. S.R. Bagal, Advocate for respondent No.3.
CORAM :S.G. CHAPALGAONKAR, J.
DATE : 27th MARCH, 2025.
JUDGMENT :
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1. Appellants/ original claimants impugn the judgment dated
25.10.2023 passed by Motor Accidents Claim Tribunal, Ahmednagar, in
Motor Accident Claim Petition No. 365 of 2021 and seeks enhancement
of compensation. (Parties are referred by their original status before the
Tribunal, for sake of convenience)
2. The appellants/claimants instituted M.A.C.P. No. 365 of 2021
under Section 166 of the Motor Vehicles Act, 1988 raising a claim for
compensation towards accidental death of late Shivaji Kothule. It is
contention of the claimants that while late Shivaji was proceeding on his
two wheeler, offending car bearing registration No. MH-16/BH 5807
gave forcible dash to him resulting into his death.
3. According to claimants, late Shivaji was aged about 38 years.
He was owner of a truck and pocklane machine and used to earn Rs.
50,000/- p.m. out of said business. He was also dealing with Asphalt and
crushed sand; so also cultivating his own land. The claimants were
dependent on his income. The respondents being owner, driver and
insurer of offending car are liable to pay compensation.
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FA 97.24 R.odt
4. The claim was contested by respondents by filing written
statement. They denied all material averments in the claim petition. The
Tribunal, on evaluation of evidence, partly allowed the claim petition and
directed respondents jointly and severally pay compensation of Rs.
14,21,000/- alongwith interest @ 8 % p.a.
5. Aggrieved claimants filed present appeal assailing the
assessment of compensation being grossly inadequate. Mr. Bhapkar,
learned advocate for the appellants vehemently submits that although
there is voluminous evidence for assessing the income of the deceased,
Tribunal erroneously worked out compensation taking notional income
@ 8,000/- p.m. He submits that compensation under non pecuniary
heads is improperly worked out.
6. Per contra, Mr. S.R. Bagal learned advocate for respondent
No.3 justifies the award contending that claimants could not bring on
record evidence as to actual earning of deceased at the time of his death.
7. Having considered submissions advanced, it can be observed
that the claimants in their endeavour to bring on record income of
deceased, relied on his income-tax returns for the year 2015-16, R.C.
Book of tipper standing in the his name and 7 x 12 extract depicting the
lands standing in the name of his joint family. The claimants examined
Mr. Vivek Bhandari, Joint Auditor, from M/s. K.D. Bhandari and
Associates, to prove income returns, wherein, his income is shown from
truck business @ Rs. 4,47,220/-.
8. The Tribunal discarded income tax returns being five year
old and declined to consider agricultural income in absence of concrete
material, so also in absence of bills or evidence as to transport business.
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FA 97.24 R.odt
Tribunal considered notional income of deceased @ Rs.8,000/- p.m. for
assessment of compensation.
9. It can be observed that the accident took place in year 2021.
The evidence on record indicate that the Tipper bearing registration No.
MH-16/ AE 9205 was standing in the name of deceased at the time of his
death and lateron transferred in the name of claimant No.1. The
aforesaid evidence definitely depicts engagement of deceased in the
transport business. Unfortunately, claimants could not bring on record
evidence regarding transactions of such business or actual earning
therefrom. However, fact remains that his income from transport
business was available till his death.
10. The income Tax Returns for the year 2016-17 may not be
relevant to consider his income at the time of his death, however, fact
renaubs that for Assessment Year 2015-16, he assessed his income at Rs.
2,69,500/- out of which Rs. 2 Lakhs was shown from agricultural. From
the evidence of CW-2 Vijay Mukar, the expenditure and income from
transport business as shown in return is brought on record. However,
perusal of balance sheet shows that expenditure and income shown
therein and actual return submitted does not match. The only fact
discernible from the aforesaid documents is that, late Shivaji was in
business of transport atleast from 2011 onwards when the truck was
purchased by him.
10. In the aforesaid background, assessment of income of
deceased at the time of his death will have to be made on the basis of
guess work and on notional basis. As rightly observed by the Tribunal,
evidence as to actual income of deceased before his death is not
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FA 97.24 R.odt
available. But, considering the fact that he was in business of transport
and also holding small piece of agricultural land jointly alongwith his
family, his income cannot be considered equal to Labour. In facts and
circumstances of the case, it would be appropriate to consider his income
@ 12,000/- p.m. Since deceased was aged about 38 years, the multiplier
of 15 would be applicable. Addition of 40% will have to be made
towards future prospects. The Tribunal appears to have made addition of
only 25% on this count. Since there are 4 dependents, ¼ th amount is
required to be deducted towards personal and living expenses. Applying
the principle of law espoused in the case of National Insurance Co. Ltd.
vs. Pranay Sethi reported in AIR 2017 SC 5157, the claimants are also
entitled for compensation towards non pecuniary damages.
11. In the result, the compensation needs to be worked out as
shown below in tabular form.
Sr. Particulars Amount
No.
1. Annual Income Rs. 12,000 x 12 = 1,44,000/-
1,44,000/- + 57,000/-
Add 40% towards loss of future prospects Rs. 2,01,600/-
Rs. 1,44,000 + 57000 = 2,01,600/-
Deduct 1/4th amount towards personal 2,01,600/-
expenses : - 50,400/-
2,01,600 - 50,400 = 1,51,200/- Rs.1,51,200/-
Apply Multiplier of 15 : 1,51,200 x 15 Rs.22,68,000/-
Add Rs. 1,60,000 towards consortium + Rs. 1,62,000/-
Add Rs. 15,000 towards Funeral Expenses + Rs. 15,000/-
Add Rs. 15,000 towards Loss of Estate + Rs. 15,000/-
Total Rs. 24,60,000/-
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12. In the result, the following order :-
ORDER
[a] "Claimants are held entitled for total compensation of Rs.
24,60,000/-(Twenty four Lakhs sixty thousand only) instead
of Rs. 14,21,000/- (Fourteen Lakhs Twenty one Thousand)
as awarded by the Tribunal, alongwith interest @ 8% p.a.
(from the date of filing of the petition, till realization of
entire compensation amount).
[b] The apportionment of amount shall be decided by the
tribunal by suitably modifying para.3 of operative order.
[c] Rest of the directions under the award of the Tribunal shall
mutatis mutandis apply to the modified award."
[d] The amount deposited by the appellant/insurer be disbursed
to the claimants in tune with the directions as incorporated
in the order of the Tribunal.
[e] First appeal stands disposed of.
[S.G. CHAPALGAONKAR, J]
grt/-
