High Court
Legal Reasoning
{1} FA 1611.04(R).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1611 OF 2004United India Insurance Co. Ltd.,Through it’s DivisionalManager and AuthorizedRepresentative and Signatory,Jalgaon Divisional Office,Mansing Market, Opp. Atul Dairy,Jalgaon.… APPELLANT1. Smt. Smita w/o. Shamkant Ahirrao Age 36 years, Occ. Household work.2. Kumari Priyanka Shamkant Ahirrao, Age 16 years, Occ. Education, 3. Kumari Pooja Shamkant Ahirrao, Age 14 years, Occ. Education.4. Pandit Shankar Ahirrao, (Died) (Pursis filed by Adv. Mayure)5. Sau Indumati Pandit Ahirrao (Died) (Pursis filed by Adv. Mayure)(Respondent No.2 and 3 being minor children through their mother respondent No.1.)RESPONDENTS.All respondents r/o. Plot No. 26,Ganesh Nagar, Mohida Road,Shahada, Tal. Shahada,Dist. Nandurbar.6. Sanjay Shivajirao Sawant, Age 26 YEARS, Occ. Trailor DRIVER, R/o. Jawala, Tal Sangoli, Dist. Solapur.
Legal Reasoning
{2} FA 1611.04(R).odt7. M/s. Fresh Express Logistics Pvt Ltd., Bedag, Tal Miraj, Dist. Sangli through its Manager.(Dismissed as per Registrar’s order dated 3.1.2023)…Mr. A.B. Gatne, Advocate for the applicant;Mr. P.C. Mayure, Advocate for respondent Nos. 1 to 3.WITHCROSS OBJECTION NO. 2771 OF 2005 1. Smt. Smita w/o. Shamkant Ahirrao Age 36 years, Occ. Household work.2. Kumari Priyanka Shamkant Ahirrao, Age 16 years, Occ. Education, 3. Kumari Pooja Shamkant Ahirrao, Age 14 years, Occ. Education.4. Pandit Shankar Ahirrao, (Died) (Pursis filed by Adv. Mayure)5. Sau Indumati Pandit Ahirrao (Died) (Pursis filed by Adv. Mayure)(Respondent No.2 and 3 being minor children through their mother respondent No.1.)APPELLANTS.All appellants r/o. Plot No. 26,Ganesh Nagar, Mohida Road,Shahada, Tal. Shahada,Dist. Nandurbar.VERSUSUnited India Insurance Co. Ltd.,Through it’s DivisionalManager and AuthorizedRepresentative and Signatory,Jalgaon Divisional Office, {3} FA 1611.04(R).odtMansing Market, Opp. Atul Dairy,Jalgaon.2. Sanjay Shivajirao Sawant, Age 26 years, Occ. Trailor Driver, R/o. Jawala Tal Sangoli, Dist. Solapur.3. M/s. Fresh Express Logistrics Pvt. Ltd. Bedag, Tal. Miraj, Dist. Sangli Through its Manager.RESPONDENTS.Mr. P.C. Mayure, Advocate for appellantsMr. A.B. Gatne, Advocate for respondent No.1. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 13th FEBRUARY, 2024. PRONOUNCED ON : 21st FEBRUARY, 2024. JUDGMENT :-1]The appellant-insurer/Original respondent NO.3 approachesthis Court under Section 173 of the Motor Vehicles Act, 1988 therebyassailing the judgment and award dated 4.8.2004 passed by the MotorAccident Claims Tribunal, Shahada in MACP No. 38 of 2003, by which anaward for Rs. 12,69,500/- has been passed in favour of the claimantsunder Section 166 of the Motor Vehicles Act. The respondents /originalclaimants have filed cross-objection in this appeal, seeking enhancementof compensation.2]Respondent Nos. 1 to 5 had approached the Tribunal underSection 166 of the Motor Vehicles Act, thereby raising a claim forcompensation of Rs. 15,00,000/ (Rs. fifteen lakhs) towards theaccidental death of Shamkant. The claimants were dependent on hisincome. He was serving as a teacher in an Ashram School, drawingsalary of Rs. 8,632/- p.m. at the time of his death. On the fateful day, he {4} FA 1611.04(R).odtwas returning to Shahada on his motorcycle which was dashed by theoffending trailer bearing Registration No. MH-10/A-9894. It was ownedby the original respondent No.2 and insured with the appellant. Therespondent No.2 insurer, by filing written statement Exh.14, refuted thecontentions of the claim petition and also raised statutory defences. TheTribunal, on consideration of the pleadings and evidence on recordpassed the impugned award holding original respondents liable to paycompensation of Rs. 12,69,500/- alongwith interest @ 9 % p.a.3]The present appeal filed by the insurer takes exception to thequantum of the award being excessive, whereas, the claimants have filedcross-objection seeking enhancement of compensation. Mr. A.B. Gatne,learned advocate for the applicant would submit that the Tribunal haspassed excessive and exorbitant award. He would submit that thedeceased was working as a teacher in an Ashram School and he was notpermitted to conduct private tuition. The Tribunal erroneously acceptedhis income from the private tuition. He would further point out thatdeceased was aged more than 40 years at the time of his death. TheTribunal added 50% amount towards future prospects, instead of 30% aswould be permissible in terms of the law laid down by the SupremeCourt in the matter of Sarla Verma and others Vs. Delhi Transport Corp.and anr. (2009) 6 SCC 121, reiterated in National Insurance Co. Ltd. Vs.Pranay Sethi (2017)16 SCC 680. He would, therefore, submit that theaward passed by the Tribunal needs to be appropriately modified in tunewith the settled principles of law.4]Mr. Mayure, learned advocate appearing for therespondents/claimants submits that the Tribunal has in fact passed {5} FA 1611.04(R).odtinadequate award. While determining dependency of claimants onincome of the deceased, his net salary is considered. Further, multiplieris wrongly applied. There were 5 dependents. Therefore, deduction of1/4th amount only could have been considered for the personal andliving expenses of the deceased, but Tribunal wrongly deducted 1/3rdamount under that caption, which has resulted into inadequate award.He would further submit that compensation awarded towards non-pecuniary heads is grossly inadequate.5]Having considered the submissions advanced, after goingthrough the evidence on record, it can be gathered that the claimants aswell as respondent insurer are aggrieved by the quantum ofcompensation fixed by Tribunal. It is not in dispute that the deceaseddied in the accident at the age of 43 years leaving behind 5 dependentson his income, at the time of death. The Salary Certificate of thedeceased is placed on record at Exh.30. It is for April, 2003. The grosssalary of the deceased is shown as Rs. 9,856/- and net salary is workedout to Rs. 6,871/-. The Tribunal, relying upon the judgment of SupremeCourt in the case of Asha and others Vs. United India AssuranceCompany Ltd. Reported in 2004 ACJ 448, worked out the compensationtaking the net salary of deceased @ Rs. 6,642/-. However, the SupremeCourt in the matter of National Insurance Co. Ltd. Vs. Indira Srivastavareported in (2008)2 SCC 763 held that the deductions from salary ofdeceased employee towards the LIC, Housing Loan, GPF, Provident Fund,etc can not be applied while considering the dependency. Only statutorydeduction towards Income-tax or Professional Tax, which are compulsoryin nature, would not constitute income of the family, hence can beconsidered for deduction. Taking into consideration aforesaid {6} FA 1611.04(R).odtpropositions of law, the Tribunal appears have erred in working outcompensation based on net salary.6]Record indicates that Gross Salary of deceased for April,2003 was Rs. 9,856/- and amount of Rs. 175/- would be compulsorydeductible towards professional tax. Therefore, while considering thedependency of the claimants, monthly income of the deceased will haveto be considered as Rs. 9,681/-. The deceased was aged 43 years at thetime of his death. Therefore, considering the law laid down in the caseof Pranay Sethi (supra) addition of 30% amount needs to be madetowards future prospects. There were 5 dependents of the deceasedhence, 1/4th amount will have to be deducted towards his personal andliving expenses. Further, considering the age of the deceased, themultiplier of 14 would be applicable. The claimants are also entitled forcompensation towards non pecuniary heads, however those additionsmust be considered as per valuation of money at the time of accident.Applying the aforesaid principles of assessment of compensation,claimants would be entitled to receive compensation as per thecalculations as shown below :-Sr.No.ParticularsAmount1.Annual income on compulsory deduction towards Professional Tax Rs. 9,681 x 12 Rs. 1,16,172/-2.Add 30% future prospects 1,16,172 + 34851Deduct 1/4th for personal expenses 1,51,023 – 37,755 = 1,13,268Rs. 1,51,023/-Rs. 1,13,268/-3.Multiplier of 14Rs. 15,85,752/-4.Add towards loss of consortium for all claimants. (Rs 10000 each)Rs. 50,000/-5.Add towards funeral expenses and loss of estateRs. 15,000/-TotalRs. 16,50,752/-
Decision
{7} FA 1611.04(R).odt8]In view of the above, the award passed by the Tribunal needsto be modified. In Result, following orderO R D E R1The first appeal is dismissed with cost.2.Cross objection is partly allowed with proportionate cost. Theaward passed by the Tribunal is modified as under :-[a]Opponent Nos. 2 and 3 shall pay compensation of Rs. 16,50,752/- jointly and severally to the claimants with interest @ 6% p.a. from the date of application till realization. [b]The amount of compensation paid/deposited in pursuance of the original award passed by the Tribunal be appropriated. [c]Compensation amount, if any, deposited in this appeal be released in favour of the claimants. Deficit Court fees, if any, be recovered before making the award. [d] Civil application, if any, stands disposed of. [S.G. CHAPALGAONKAR] JUDGE grt/-