High Court
Legal Reasoning
1 39fa4105.22 judgmentIN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 4105 OF 20221.Hausabai Bhimaji Gaike,Age; 64 years, Occ; Household,2.Sampat s/o Bhimaji Gaike,Age; 43 years, Occ; Nil,Both R/o Dhangarwadi,Tq. & Dist. Ahmednagar....APPELLANTS (Orig. Claimants)VERSUS1)Suresh s/o Bhanudas Lokhande,Age; Major, Occu; Transport & Agril,R/o; Newasa Bk. Tq. Newasa,District; Ahmednagar.2.Branch Manager,The United India Insurance Co. Ltd.Ahmednagar Divisional Office,Kisan Kranti Building,Market Yard, Ahmednagar....RESPONDENTS....Advocate for Appellant : Mr. Jayabhar Dattatraya R.Advocate for Respondent No.1 : Mr.K. N. Lokhande Advocate for Respondent No. 2 : Mr.Rathi Swapnil S. ... CORAM : KISHORE C. SANT, J. DATE : 27th JUNE, 2024. 2 39fa4105.22 judgmentORAL JUDGMENT : 1.Heard the learned Advocates for the parties.2.By consent of both the parties, the matter is takenup for final disposal. I have gone through the record andproceedings.3.The facts in short giving rise to the present appealare that the deceased Vilas Bhimaji Gaike met with an accidenton 18.10.2010 at around 7.30 p.m. near Dhangarwadi. When hewas standing on the road one vehicle i.e. Jeep bearing No.MH-17-T-3330, coming in high speed from Ahmednagar, gavedash to the deceased. The deceased died on the spot. He wasbachelor aged 31 years.4.The present appellants, who happened to be themother and brother of the deceased approached the learnedMotor Accident Claims Tribunal (in short ‘Claims Tribunal’)Ahmednagar by filing MACP No. 675 of 2010. It is the case of 3 39fa4105.22 judgmentthe Claimants that the deceased was working as Cleaner on ajeep. His earning was Rs. 5,000/-p.m. They prayed forcompensation claiming income of the deceased as Rs. 5,000/-p.m. total compensation was Rs. 6,00,000/-.5.The Insurance Company appeared in the appealbefore the Claims Tribunal and resisted the claim on the groundof breach of conditions of policy stating that the driver of thejeep was not holding valid license at the relevant time. Theowner of the vehicle Respondent No. 1 did not cause the hisappearance and the Claims Tribunal proceeded ex-parte againsthim.6.In support of the claim, the mother of the deceasedgot herself examined. She stated that the deceased was standingon Ahmednagar road at the time of the accident. The vehiclewas being driven in negligent manner and it gave dash to thedeceased. The mother, however, is not an eye witness to theaccident. The parties relied upon the police papers, specially onthe spot panchanama Exh. 18. There was no dispute about thefact of the accident. The question mainly is of the income of the 4 39fa4105.22 judgmentdeceased. Since the Claimants could not prove the exact incomeof the deceased, it was notionally considered as Rs. 3,000/-p.m. and the award thus came to be passed considering theincome of the deceased as Rs. 3,000/- p.m. 7.Learned Claims Tribunal thus awarded Rs.1,05,000/- including Rs. 10,000/- towards loss of love andaffection and Rs. 5,000/- towards funeral expenses and forcarrying dead body.8.Learned Advocate for the appellants has vehementlyargued that the notional income of the deceased ought to havebeen considered @ Rs. 5,000/- p.m. An accident took place inthe year 2010. Reasonably a person working as Cleaner on jeepwould get Rs. 5,000/- p.m. The deceased was of 31 years old.He further argued that the Claims Tribunal ought to havegranted an amount towards future prospects @ 40%. He furthersubmits that the Claims Tribunal has awarded a very meageramount towards loss of love and affection of Rs.10,000/- and forfuneral expenses only Rs. 5,000/-, as awarded is totallyinadequate. He submits that the Claims Tribunal ought to have
Legal Reasoning
5 39fa4105.22 judgmentgranted 40,000/- towards consortium, Rs. 15,000/- towardsfuneral and other expenses Rs. 15,000/- towards the loss ofestate. He prays for allowing the appeal.9.The Claims Tribunal has committed patent error inapplying multiplier ‘5’ on considering the age of the Claimantmother of the deceased who was 60 years of age. The multiplierought to have ‘16’, considering the age of the deceased.10.The appeal is vehemently opposed by the learnedAdvocate for Respondent No. 2 Insurance Company. LearnedAdvocate for the Insurance Company submits that at therelevant time the notional income of the deceased wasRs. 3,000/- p.m. as is rightly held by the Claims Tribunal. Hefurther submits that there was no proof of the income of thedeceased produced before the Claims Tribunal. So far as theloss of estate and consortium, he submits that the ClaimsTribunal has taken into consideration the actual expenses andno fault can be found. So far as, 40% of the amount towardsfuture prospect is concerned, he submits that there arejudgments of the Supreme Court on this point and there is no 6 39fa4105.22 judgmentdispute on the said position.11.Considering the above facts and submissions thisCourt has to see as to whether the Claims Tribunal has wronglyconsidered the income of the deceased as Rs. 3,000/- p.m. andwhether the Claims Tribunal has committed any error ingranting only Rs.10,000/- towards consortium and Rs.5,000/-towards the funeral expenses and whether the Tribunal hascommitted mistake in not awarding 40% amount for futureprospects. Whether the Claims Tribunal has committed mistakein applying multiplier of ‘5’ instead of ‘16’, considering the age ofthe deceased.12.This Court has gone through the discussion. Thelearned Claims Tribunal in paragraph No. 12 of the judgmenthas applied the multiplier as ‘5’ stating that the Claimant No.1is of 60 years. So far as Claimant No.2 is concerned, the ClaimsTribunal has rightly considered that the Claimant No. 2 isbrother and hence he cannot be said to be dependent upon thedeceased. The learned Tribunal ought to have considered theage of the deceased for the purpose of applying the multiplier. 7 39fa4105.22 judgmentThe learned Tribunal though considered the judgment of the -Sarla Warma (SMT) and Others Vs. Delhi Transport Corporationand Another- (2009) 6 SCC 121, has failed to consider the saidjudgment correctly and has committed a patent error.13.So far as, the future prospects are concerned, whichought to have been granted @ 40%, in view of the judgmentreported in National Insurance Company Ld. Vs. Pranay Sethiand Others, (2017) 16 SCC 680. The loss of estate also ought tohave been granted at Rs. 15,000/-, the funeral expenses oughtto have been granted @ 15,000/- and loss of consortium oughtto have been granted as 40,000/-. The learned Tribunal alsofailed to award Rs. 40,000/- towards consortium.14.Considering the above, this Court finds that thelearned Claims Tribunal should have been calculated theamount as given in foregoing paragraphs.15.The Tribunal has considered the monthly income atRs. 3,000/-. Considering addition of 40% income, it would beRs. 4,200/-. 50% deduction towards personal expenses would 8 39fa4105.22 judgmentmake loss of income of Rs. 2100/- p.m. The amount ofRs. 2100/- p.m. would make Rs. 25,200/- per year. The amountof loss thus would be Rs. 25,200/- per year. ‘16’ is theappropriate multiplier to be applied. By applying said theamount would come to Rs. 4,03,200/-, Plus 40,000/- towardsloss of consortium, Plus Rs. 15,000/- towards funeral expenses,Plus 15,000/- towards loss of estate. The total amount wouldthus come to Rs. 4,73,200/-. The learned Claims Tribunalawarded Rs.1,05,000/-. By deducting Rs. 1,05,000/- theamount comes to Rs. 3,68,200/-.16.As per above calculations, this Court comes to theconclusion that the learned Claims Tribunal ought to haveawarded total amount of Rs. 4,73,200/-. Now the ClaimantNo. 1 i.e. appellant No. 1 would be entitled to receiveRs. 3,68,200/- alongwith interest accrued from the date of filingof the Claim Petition till the realization of full amount, excludingdelayed period.17.In view of the said, this Court has partly allowed theFirst Appeal. The Insurance Company shall pay Rs. 3,68,200, 9 39fa4105.22 judgmentover and above the amount already paid alongwith interest @7% from the date of the filing of the appeal till realization, exceptfor the delayed period of 2606 days. The award thus modifiedaccordingly.18.The First Appeal stands disposed off in above terms,alongwith pending Civil Applications, if any. ( KISHORE C. SANT ) JUDGE mahajansb/