High Court

Legal Reasoning

{1} 934-FA-1429-2016(J)IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1429 OF 2016 1.Smt. Pratibha Narayan PawarAge- 26 years, Occupation- Household2.Chi. Aman Narayan PawarAge- 6 years, Occupation-Education3.Chi. Moti Narayan PawarAge- 4 years, Occupation- Education4.Shri. Pandharinath Gangaram PawarAge- 60 years, Occupation- Nil5.Sau. Indubai Pandharinath PawarAge- 54 years, Occupation- Household[Appellant No. 1 is mother and naturalguardian of Appellant No. 2 and 3 who areher sons].All R/o. Karmad Bk., Tal. Parola, District- Jalgaon....APPELLANTS[Ori. Claimants]VERSUS1.Shri. Subhash Sitaram BorkarAge- Major, Occupation- Service,R/o. Korali, Tql. Kamthi, Dist. Nagpur.[ Respondent No. 1 Deleted as per order dated 29.01.2018]2.The Maharashtra State Road TransportCorporation, Through its Divisional Manager,MSRTC, Jalgaon....RESPONDENT[Ori. Respondent]Mr. M.M. Bhokarikar, Advocate for claimantsMr. M.K. Goyanka, Advocate for respondent No. 2....…Bhagyawant Punde {2} 934-FA-1429-2016(J) CORAM : NITIN B. SURYAWANSHI, J. DATE : 28th AUGUST, 2024JUDGMENT :1.By this appeal filed under Section 173 of MotorVehicles Act, claimants challenge judgment and award dated02.02.2016 passed by Chairman, Motor Accident Claims Tribunal,Jalgaon in M.A.C.P. No. 550 of 2009.2.Narayan Pandharinath Pawar was proceeding onmotorcycle bearing registration No. MH-18-Y-3540 from Jalgaontowards Erandol on 11.11.2009. At about 8.30 am, near Paldhibypass on National Highway No. 6, S.T. bus No. MH-4-U-8842came from opposite direction in high speed and gave dash to themotorcycle, Narayan came under the wheels and died on thespot.3.Claimants filed claim petition claiming compensationof Rs. 40,00,000/- contending that deceased was 33 years old atthe time of accident and was employed in Indian Army and wasearning monthly salary of Rs. 25,000/-.Respondent No. 1/driver did not appear in theTribunal, hence, ex-parte order was passed against him.Respondent No. 2/MSRTC opposed the claim by filingBhagyawant Punde {3} 934-FA-1429-2016(J)written statement and claimed that deceased himself was rashand negligent and has contributed to the accident.4.The Tribunal after recording evidence partly allowedthe claim and directed respondent No. 2/MSRTC and driver tojointly and severally pay compensation of Rs. 39,09,000/- alongwith interest @ 7.5% per annum. Being aggrieved by inadequatecompensation claimants have preferred this appeal.5.Heard learned advocate for claimants and learnedadvocate for MSRTC.6.Learned advocate for claimants submits thatclaimants have brought salary slip of the deceased on record,which shows that his salary at the time of accident was Rs.20,465/-, the same should have been taken into considerationby the Tribunal for calculating the compensation amount. TheTribunal has erred in deducting Rs. 1,000/- from the salary ofdeceased towards income tax and profession tax. A finding ofthe tribunal that there was 15% contributory negligence on thepart of deceased as the deceased was not wearing helmet at thetime of accident is unacceptable in view of decision in AnjanaNarayan Kambale Vs. Branch Manager, Reliance GeneralBhagyawant Punde {4} 934-FA-1429-2016(J)Insurance Company Ltd., AIROnline 2022 Sc 1562. He thereforesubmits that claimants are entitled for enhanced compensation.He relied on National Insurance Company Co. Ltd. vs. PranaySethi and others, AIR 2017 SC 5157, in support of hisarguments. 7.Learned advocate for respondent No. 2/MSRTC, onthe other hand, supported the impugned judgment and award.He submits that in fact taking into consideration the income taxpayable for the assessment year 2009-2010 relevant to financialyear 2008-2009, 10% amount exceeding Rs. 1,50,000/- is liableto be deducted towards income tax. Hence, Tribunal has rightlydeducted Rs. 1,000/- from the salary of the deceased. On thepoint of contributory negligence, he fairly conceded that in viewof decision of Anjana Kambale (supra), the Apex Court hasclarified the position and therefore, said finding of the Tribunal inrespect of contributory negligence is not sustainable. Hetherefore submits that there is no merit in the appeal and appealis liable to be dismissed.8.Heard learned advocate for claimants and learnedadvocate for MSRTC at length. Perused the record.Bhagyawant Punde {5} 934-FA-1429-2016(J)9.Accidental death of the deceased is not in dispute.The Tribunal has held that since the deceased was not wearinghelmet at the time of accident, there was contributorynegligence on the part of deceased and hence 15% amount isdeducted from the compensation. Said finding is unsustainable inview of ratio in Anjana Kambale (supra), wherein it is held:“7. In the present case, there is no such evidence ofcontributory negligence except fact of three riders onthe motor cycle and of not wearing helmet by thedeceased. Therefore, in view of the enunciation oflaw, we find that the High Court was not justified indeducting 30% of the amount of compensationassessed by the Tribunal for the reason that thedeceased was triple riding the Motor Cycle or was notwearing a helmet. The violation of rules for driving ofmotor vehicle is not a ground to deduct the amount ofcompensation awarded unless there is proof of eitherthe accident could have been averted or the impactcould have been minimized.”10.Claimants have produced salary slip (Exhibit-55) ofdeceased on record, which shows that total salary of deceasedfor the month of October-2009 was Rs. 20,465/-. The salary slipdoes not indicate any deductions towards income tax orprofession tax. In the financial year 2008-2009 income up to Rs.1,50,000/- was exempted from income tax. 10% income tax wasto be paid on the amount exceeding Rs. 1,50,000/-. AnnualBhagyawant Punde {6} 934-FA-1429-2016(J)gross income of deceased comes to Rs. 2,45,580/- (20,465 x12). Thus, taxable income of the deceased comes to Rs.95,580/-. By deducting 10% income tax of Rs. 9558/- andprofession tax of Rs. 2400/- annual net income of the deceasedis assessed at Rs. 2,33,622/-.11.By relying on Pranay Sethi (supra) claimants areright in contending that the Tribunal has awarded inadequatecompensation of Rs. 1,00,000/- towards loss of consortium. Interms of Pranay Sethi (supra), claimants are entitled for loss ofconsortium @ Rs. 40,000/- each and Rs. 15,000/- towards lossof estate. The Tribunal has erred in awarding Rs. 2,10,000/-towards loss of love and affection. Funeral expenses of Rs.25,000/- awarded by the Tribunal are not liable to be disturbedin the facts of the present case. Claimants are therefore entitledfor following compensation:Sr. No.HeadsAmount in Rs.1Annual Salary + 50% futureprospects(2,33,622+1,16,811/-)3,50,433/-21/4th deduction towardspersonal expenses i.e. Rs.87,608.25/- which is roundedoff to Rs. 87,608/-(3,50,433-87,608)2,62,825/-3Annual Dependency multiplied42,05,200/-Bhagyawant Punde {7} 934-FA-1429-2016(J)by multiplier of 16 (2,62,825 X 16)4Compensation towards NonPecuniary damagesi) Loss of Consortium- 40,000/-each i.e. 5 claimants Rs.2,00,000/-ii) Funeral Expenses- Rs.25,000/-iii) Loss of Estate- Rs. 15,000/-2,40,000/-5Total Compensation needs to beawarded44,45,200/-6Compensation awarded byTribunal39,09,000/-7Total Enhanced compensation(44,45,200 – 39,09,000)5,36,200/-12.In the result, following order:ORDERI)First Appeal is partly allowed with proportionate costs.II)Impugned Judgment and Award dated 02.02.2016passed by Chairman, Motor Accident Claims Tribunal,Jalgaon in M.A.C.P. No. 550 of 2009 is modified to theeffect that claimants are held entitled for enhancedcompensation of Rs. 5,36,200/- to be paid byrespondent No. 2 along with interest @ 7.5 per annumfrom the date of filing of petition till realization.III)Respondent No. 2 shall deposit the enhancedcompensation amount along with accrued interest in theTribunal within 12 weeks from the date of uploading ofthis judgment.Bhagyawant Punde {8} 934-FA-1429-2016(J)IV)Claimants to pay court fees on enhanced compensationas per rules.V)Rest of the award is maintained. [NITIN B. SURYAWANSHI, J.] Bhagyawant Punde