Ushabai Janrao Patil v. Ashok Rambhau Sunaskar

FA-1741-2017-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1741 OF 20171.Ushabai Janrao PatilAge 35 years, Occupation Household,2.Deepak Janrao PatilAge 17 years, Occupation Education3.Sunita Janrao PatilAge 15 years, Occupation Education4.Dasharath Janrao PatilAge 13 years, Occupation Education(Appellant no.1 is for herself and mother hence Natural guardian ofother appellants)All R/o Rajur, Post- Aingaon, Tal. Bodwad.… Appellants[Ori. Claimant]Versus1.Ashok Rambhau SunaskarAge 45 years, Occupation Business,R/o Harankhed, Tal. Bodwad, Dist. Jalgaon.2.The United India InsuranceCompany Ltd.,Through the Divisional Manager, Mansingh Market, Railway Station Road, Jalgaon.[3.Sachin Samadhan SunaskarAge 35 years, Occupation Driver,R/o Harankhed, Tal. Bodwad, Dist. Jalgaon]Deleted name of Respondent no.3as per order dated 29.09.2023.… Respondents FA-1741-2017-2- …..Mr. M. M. Bhokarikar, Advocate for the Appellants.Mr. S. N. Suryawanshi, Advocate for Respondent No.1.Mr. A. B. Gatne, Advocate for Respondent No.2...… CORAM :ABHAY S. WAGHWASE, J. Reserved on: 12.12.2025Pronounced on: 19.12.2025JUDGMENT : 1.Dissatisfied by the quantum of compensation awarded bylearned Motor Accident Claims Tribunal, Jalgaon in Motor AccidentClaim Petition No. 114 of 2009, on account of claim petition at theinstance of heirs of deceased Janrao, who suffered accidental deathon 02.12.2008, the present appeal has been preferred.2.Claim was set up by heirs of late Janrao Patil on the premisethat on 02.12.2008, while Janrao was proceeding to conduct hisbusiness of selling bakery products on his bicycle from Rajurgaontowards Anegaon, he suffered dash of rickshaw bearing no. MH-19-AE2378 coming from opposite direction and suffered fatal injuries andsuccumbed to the same. Hence, by invoking Section 166 of the MotorVehicles Act, 1988, claim of Rs.7,50,000/-was urged for with interest. The claim was resisted by respondent no.2 therein-InsuranceCompany vide Exhibit 16. On appreciation of oral and documentary FA-1741-2017-3- evidence, by order dated 10.03.2017, claim was partly allowed, i.e. tothe tune of Rs.6,03,000/- with 7.5% rate of interest. Dissatisfied by the quantum, and for non consideration ofcompensation under other heads, claimants have preferred instantappeal.3.According to learned counsel for the claimants, deceased wasaround 39 years of age and was conducting business of selling bakeryproducts. That, learned Tribunal had rightly held negligence on thepart of rickshaw driver. However, according to him, whileascertaining compensation, learned Tribunal has considered barelyRs.4,000/- as notional income. That, in fact, considering the nature ofbusiness, according to him, it ought to have been considered asRs.6,000/- and thereafter calculations ought to have been made. That, in view of dependency, 1/4th ought to have been deducted andin view of above age of deceased, multiplier of 15 ought to have beenapplied. But, according to him, learned Tribunal has failed to considerthe same. He also pointed out that, apart from not grantingcompensation under the head of consortium, learned Tribunal hasalso failed to consider 40% rise towards future prospects. For allabove reasons, he seeks enhancement by modifying the award. FA-1741-2017-4- 4.In answer to above, learned counsel for the Insurance Companywould justify the judgment and award pointing out that there iscorrect appreciation, more particularly in view of the pleadings of theparties. He pointed out that, claimants themselves had quoted age ofdeceased as 44 years. Moreover, as there was no distinct proof of ageof deceased, it is his submission that, postmortem [PM] report wasthe right document to be relied and the same has been relied by theTribunal also. Therefore, according to him, in view of the agereflected in PM report as 45, multiplier applicable is of 13 and thesame has been rightly applied.5.As regards to ground of entitlement for 40% rise towards futureprospects, he strongly opposed by pointing out that here, admittedlydeceased was selling bakery products and as such was self employed. According to him, in view of judgment of Hon’ble Apex Court in thecase of Sarla Verma and others v. Delhi Transport Corporation andothers MANU/SC0606/2009, only when there is evidence aboutprospects for rise in income, only in those exceptional cases, futureprospects can be considered and not otherwise. Lastly, he justifiedand supported the findings and conclusion reached by Tribunal. Heplaced on record judgment of this Court in New India Assurance Co.Ltd. v. Alpa Rajesh Shah reported in 2014 (1) Bom.C.R. 755. FA-1741-2017-5- 6.After hearing above submissions and on going through therecord, here, claimants, who are heirs of deceased Janrao, are takingexception to the judgment and award of trial court primarily on threegrounds i.e. failing to consider age of deceased to be below 40 yearsand thereafter applying appropriate multiplicand; secondly, considering mere notional income to the tune of Rs.4000/- and notRs.6000/- and thirdly, non consideration of future prospects ofdeceased. Multiplier7.As regards to first objection is concerned, as pointed out bylearned counsel for the respondent-Insurance Company, it is emergingthat in the claim petition, age of deceased apparently reflects as 44years. Copy of PM report, which is also a part of record, shows age ofdeceased as 45 years. Even in cross, wife of deceased has admittedage of her husband to be 45 years. Therefore, there is overwhelmingevidence on the point of age of deceased as 45 years. For said agegroup (41 to 45 years), in view of Sarla Verma (supra), multiplier of14 would apply. However, Tribunal has applied the multiplier of 13which is applicable to age group of 46 to 50 years. Thereforeinterference in this regard has become imperative. FA-1741-2017-6- Notional Income8.The second ground of challenge is considering mere notionalincome of Rs.4000/- and not Rs.6,000/-. Here, as pointed out, there isno distinct evidence on behalf of claimants regarding alleged businessof sell of bakery products by the deceased. As pointed out, in para 9of the judgment of Tribunal, wife has admitted in her cross that mainoccupation of her husband and source of income was labour work. This is contrary to the case set up that, deceased earned byconducting business of sell of bakery products. Therefore, in absenceof evidence on actual occupation and earnings, consideration ofRs.4,000/- as notional income by Tribunal cannot be faulted at. Future Prospects9.As regards to ground of non consideration of future prospects isconcerned, learned counsel for Insurance Company has placed onrecord judgment of this Court in Alpa Rajesh Shah (supra) wherein, observations of the Hon’ble Apex Court in the case of Reshma Kumariand other v. Madan Mohan and another [Civil Appeal No. 4646 of2009 decided on 02.04.2013] reported in 2013 (3) Bom.C.R. 19(SC),are reproduced that unless there is distinct evidence suggestingpotential or prospects of rise in income, only in such circumstances, incases of person who are self employed, future prospects can be FA-1741-2017-7- considered. Here, as stated above, firstly, there is no evidence thatdeceased conducted business of sell of bakery products. On thecontrary, wife of deceased herself has admitted that he was earningby doing labour work. Therefore, with such quality of evidence, nocase was made out for grant of distinct compensation under futureprospects. Conventional heads10.As regards compensation under the heads ‘loss of consortium’,‘loss of love and affection’ and ‘funeral expenses’, the same is awardedby the Tribunal by referring the decision of the Hon’ble Apex Court inthe case of Rajesh and others v. Rajbir Singh and others [2013 ACJ1403 (SC)]. As pointed out by the learned counsel for the respondentInsurance Company, in National Insurance Company v. Pranay Sethiand others MANU/SC/1366/2017 the said decision in Rajesh is heldas not binding precedent by the Hon’ble Apex Court as it has nottaken note of earlier decision in Reshma Kumari (supra). 11.In view of the above as well as the ratio laid down by theHon’ble Apex Court in the case of Magma General Insurance Co. Ltd.V. Nanu Ram and others MANU/SC/1012/2018, the amount ofRs.50,000/- awarded by the Tribunal to petitioner no.1 towards loss FA-1741-2017-8- of consortium needs to be reduced to Rs.40,000/-. However, petitioner nos. 2 to 4 also need to be awarded Rs.40,000/- eachtowards parental consortium. Therefore, total compensation underthe head ‘loss of consortium’ would be Rs.1,60,000/-12.The amount of Rs.60,000/- has been awarded by the Tribunalto claimant nos. 2 to 4 towards loss of love and affection. However, ithas been observed by the Hon’ble Apex Court in the case of UnitedIndia Insurance Company Limited v. Satinder Kaur alias SatwinderKaur and others (2021) 11 SCC 780 that, awarding compensationtowards loss of love and affection as a separate head is not justified. The observation of the Hon’ble Apex Court on this aspect in para 34and 35 are reproduced as under :“34.At this stage, we consider it necessary to provideuniformity with respect to the grant of consortium, andloss of love and affection. Several Tribunals and the HighCourts have been awarding compensation for both loss ofconsortium and loss of love and affection. TheConstitution Bench in Pranay Sethi [(2017) 16 SCC 680],has recognised only three conventional heads under whichcompensation can be awarded viz. Loss of estate, loss ofconsortium and funeral expenses. In Magma General[(2018) 18 SCC 130], this Court gave a comprehensiveinterpretation to consortium to include spousal FA-1741-2017-9- consortium, parental consortium, as well as filialconsortium. Loss of love and affection is comprehended inloss of consortium.35.The Tribunals and the High Courts are directed toaward compensation for loss of consortium, which is alegitimate conventional head. There is no justificationaward compensation towards loss of love and affection asa separate head.”In view of the above directions of the Hon’ble Apex Court, thepetitioner nos. 2 to 4 will not be entitled for separate compensationtowards loss of love and affection.13.Compensation of Rs.25,000/- towards funeral expenses needsto be reduced to Rs.15,000/-.14.The Tribunal has not awarded any amount under theconventional head ‘loss of estate’. As per the ratio laid down inPranay Sethi (supra), the claimants are entitled for Rs.15,000/-towards the same.15.Resultantly, the computation of compensation would be asunder : FA-1741-2017-10- Sr. No.HeadsAmount (Rs.)1Loss of dependency3000 X 12 X 14 multiplierRs.5,04,000/-2Loss of consortium to petitioner no.1and parental consortium to petitionernos. 2 to 4 (Rs.40,000/- each)Rs.1,60,000/- 3Funeral expenses Rs.15,000/-5Loss of Estate (not awarded by Tribunal)Rs.15,000/-5Total compensation Rs.6,94,000/-6Compensation awarded by theTribunalRs.6,03,000/-7Enhanced compensation(6,94,000 – 6,03,000)Rs.91,000/-Hence, following order is passed :ORDERI.The First Appeal is partly allowed with proportionate costs.II.Impugned judgment and award dated 10.03.2017 passed by the Chairman, Motor Accident Claims Tribunal, Jalgaon in M.A.C.P. No. 114 of 2009 is modified.III.Respondent No.2-insurance company to pay enhancedcompensation of Rs.91,000/- to the claimant-appellant no.1within 12 weeks from today along with interest @ 7.5% perannum from the date of filing of the claim petition tillrealization. FA-1741-2017-11- IV. Modified award be prepared accordingly.V.Claimant-appellant no.1 to pay court fees on the enhancedcompensation as per rules.VI.On deposit of the amount by the Insurance Company, claimant-appellant no.1 is permitted to withdraw the same. [ABHAY S. WAGHWASE, J.]vre