OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1694 OF 20171.Shaikh Nazer v. Kadoji & Ors.

3. The claim was resisted by respondent no.1 and respondent no.2. Respondent no.2 insurance company denied the contentions andaverments of the claim petition and principle ground raised that there was breach of conditions by the driver of the tractor. That, claimant had failed to prove that there was rash and negligent solely on the part of tractor driver. There being no evidence to that extent, they prayed to dismiss the claim petition. -3- FA-1694-20174.After appreciating the respective cases and the evidence on record, learned tribunal was pleased to frame the issues and by order dated 23.12.2016 allowed the claim petition directing payment of compensation to the tune of Rs.5,92,000/- with interest at the rate of 9%per annum. However, learned tribunal recording the finding that jeep driver was also 50% liable equally with the tractor driver and deducted the amount accordingly. It is the above judgment which is impugned herein.

5. Learned counsel for claimant would submit that, there was clearly rashness and negligence solely on the part of tractor driver. Hepointed out that, there was no evidence to arrive at the conclusion that both the drivers of tractor as well as jeep, were negligent. According to him, tractor of the driver has not entered in the witness box and therefore, adverse inference ought to have been drawn. He further pointed out that, even spot panchanama clearly depicts that the tractor driver was solely responsible. 6. According to him, the Hon’ble Apex Court has clarified this position more than once and more particularity in the case of Khenyei v.New India Assurance Company Limited and Ors., (2015) 9 SCC 273 aswell as in First Appeal No. 447 of 2013 in the case of Vikrant S/o. -4- FA-1694-2017Vinodkumar Shukla and Anr. v. Smt. Shardamma W/o. B.G.Venkatechhalapathy and Ors., this court has also clarified the legal position on above point of contributory negligence and composite negligence.

7. The second ground of challenge is quantum as according to appellants, learned tribunal ought not to have considered mereRs.3,000/- as notional income and instead ought to have considered toRs.4,500/-. There is no grant of quantum under the head of future prospects; no grant of parental consortium to minor and less/no amount granted under the head of funeral expenses and loss of estate. 8. Learned counsel for original respondent nos.1 and 2 justify the award and urged not to disturb it. 9. Much emphasis is laid by learned counsel for appellants on the judgment of Hon’ble Apex Court in the case Khenyei (supra) and therefore, the same is visited. However, it is noticed that in this case, before the Hon’ble Apex Court, there was head on collision between bus and trailor-truck and both vehicles were in motion. Here, deceased suffered dash while jeep was halted and deceased had alighted to ease herself.

Therefore, on facts at least above judgment, with due respect to the Hon’ble Apex, cannot be taken aid of. -5- FA-1694-2017Likewise, in the judgment of this court in First Appeal No.447 of 2013 in the case of Vikrant S/o. Vinodkumar Shukla (supra) also, facts are distinct as therein Maruti Car itself went and rammed over the truck, which was parked without signal or indicator, and as such, this court found fault on the part of tribunal therein by taking recourse to above referred judgment of Hon’ble Apex Court, wherein the difference between contributory negligence and composite negligence were distinguished by relying on the judgment of Anthony v. Karvarnan and Ors. [2008 (3) SCC 748].10.On the contrary, on visiting the impugned judgment and order, learned tribunal seems to have dealt with issue nos. 2 and 7 in paragraph 13, 14, 15, 16 and 17 and analysis part is done in paragraph no.18. Situation at the scene of occurrence i.e. at the spot, has also been discussed apart from taking into account the directions in which both vehicles were proceeding and were situated at the time of actual mishap.

Further, there is no evidence on behalf of respondent nos.1 and 2. 11. Therefore, on re-appreciation of the said findings, this court also agrees with the tribunal on the point that, here, jeep was in stationary, but was not halted appropriately, rather, it was halted on wrong side. The aspect of deceased suffering dash while she was on the -6- FA-1694-2017tar portion of road itself shows that, driver of the jeep had not taken care to halt the vehicle to his extreme left side i.e. on the side of the road and therefore, finding recorded by tribunal that there is 50% negligence on the part of each driver of both vehicle, cannot be said to be erroneous. Resultantly, this court refrains from interfering in the findings of learned trial court to above extent. 12. As regards to entitlement of compensation is concerned, tribunal seems to have made discussions in issue no.8. In absence of any evidence of earning by deceased, tribunal seems to have considered notional income of Rs.3,000/-. Accident is of 2010.

Therefore, notional income in the considered opinion of this court is on the lower side and the same is required to be raised to Rs.4,000/- per month. 13. Further, learned tribunal also seems to have incorrectly calculated amount of Rs.50,000/- towards loss of consortium andRs.1,00,000 towards love and affection. Even Rs.10,000/- is awarded under the head of funeral expenses. 14. In view of the ratio laid down in National InsuranceCompany Limited vs. Pranay Sethi and others, 2017 (16) SCC 680, and Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and -7- FA-1694-2017Others, (2018) 18 SCC 130, claimants are entitled for Rs. 40,000/- each,i.e. 80,000/- plus 30% (Rs.24,000/-) which comes to Rs.1,04,000/-towards consortium and loss of love and affection. Rs. 15,000/- plus 30%(Rs.4,500/-), which comes to Rs.19,500/- towards loss of estate andRs.15,000/- plus 30% (Rs.4,500/-), which comes to Rs.19,500/- towards funeral expenses.

15. Claimants are also entitled for future prospects. Consideringthat the age of deceased at the time of accident, 40% needs to be awarded towards future prospectus in view of ratio in Magma GeneralInsurance Co. Ltd. (supra).16.In view of the aforesaid discussion, claimants are entitled for following compensation. Sr.No.HeadsAmount (Rs.)1.Annual Income (Rs.4,000 x 12 )48,000/-2.Future Prospects 40%i.e. 19,200 (48,000 + 19,200)67,200/-3.Less 1/3rd deduction towards personal expenses. (Rs. 67,200 – Rs 22,400)44,800/-4.Multiplier of 18 (44,800 X 18)8,06,400/-5.Loss of consortium 1,04,000/-6.Funeral Expenses 19,500/- -8- FA-1694-20177.Loss of Estate19,500/-8.Total compensation to be paid9,49,400/-9.Compensation awarded by Tribunal 5,92,000/-10.Total Enhanced Compensation (i.e. Rs.9,49,400 – 5,92,000)3,57,400/-11.Contributory Negligence 50 : 501,78,700/-12Compensation to be paid by respondent Nos.1 and 21,78,700/-17.In view of above, appellants are entitled for the amount ofRs.9,49,400/-. It is held that, the jeep owner and its insurer are responsible to pay 50% and respondent Nos.1 and 2 are responsible for50% compensation granted above.