High Court

Legal Reasoning

{1} 910-fa-2555-2016 IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD FIRST APPEAL NO. 2555 OF 20161.Uma Ankush UplanchewarAge- 26 years, Occ. Household,R/o. 107, Mangalwar Peth,Behind Kamala Devi HospitalSidhi Balaji Heights, Flat No. 7,3rd Floor, Pune-11.2.Nimish S/o Ankush UplanchewarAge- 3 years, Occ. Nil,U/g. Real mother appellant No. 1R/o. As above.3.Sunanda W/o Anand UplanchewarAge- 48 years, Occ. Household,R/o. As above.….APPELLANTS[Orig. Claimants] VERSUS1.Jogindarsingh Guljarsingh KhairaAge- Major, Occ- Business,R/o. Dashmesh Nagar, Nanded,Tq. & Dist. Nanded.2.The Branch Manager,United India Insurance Co. Ltd.Dayawan Complex, Station Road,Parbhani, Tq. & Dist. Parbhani.…..RESPONDENTS [Orig. Respondents]…..Mr. P.N. Kalani, Advocate for appellantsMr. A.B. Gatne, Advocate for respondent No. 2Respondent No. 1 served. ....... CORAM : NITIN B. SURYAWANSHI, J. DATE : 20th AUGUST, 2024Bhagyawant Punde {2} 910-fa-2555-2016ORAL JUDGMENT :1.Admit. Heard finally.2.By this appeal, claimants challenge judgment andaward passed by Motor Accident Claims Tribunal, Parbhani, inMotor Accident Claim Petition No. 264 of 2013.3.On 05.03.2013, Ankush s/o Anand Uplanchewar,(deceased) along with his parents, sister Ankita, auntShubhangi, uncle Tanuj and cousin sister Shweta wereproceeding to Parbhani for the program of Dohal-jewan of UmaUplanchewar in Omni car bearing registration No. MH-12-GR-6584. Father of deceased was driving the car. At about, 6.00 to6.30 am, when their car reached near Panhera shivar on Pathri-Parbhani road, at that time, one truck bearing registration No.MH-26-H-6313 came from opposite direction in rash andnegligent manner and gave severe dash to the car of claimants.Due to the accident, Anand, Ankush and Ankita and one moreinmate in the car expired on the spot and rest of the occupantsof the car were injured.4.Claimants filed Motor Accident Claim Petition No.264/2013 claiming compensation of Rs. 35,61,200/-.The Tribunal after hearing the parties partly allowedBhagyawant Punde {3} 910-fa-2555-2016the claim by awarding compensation of Rs. 23,72,000/- alongwith 7.5% interest per annum. Claimants are aggrieved by nongrant of compensation under the head, ‘future prospects’. 5.Heard learned advocate for claimants and learnedadvocate for respondent No. 2. Though served, none appears forrespondent No. 1.6.Learned advocate for claimants submits that theTribunal has erred in denying compensation under the headfuture prospects. In view of decision in Smt. Sarla Verma andothers vs. Delhi Transport Corporation and Another, (2009) 6SCC 121 and National Insurance Company Limited vs. PranaySethi and others, (2017) 16 SCC 680, claimants are entitled for50% addition towards future prospects.7.Learned advocate for insurance company, on theother hand, strenuously opposed the said submission contendingthat deceased was on fixed salary and there is no evidence toshow that there was possible increase of salary in future andtherefore, Tribunal has rightly denied compensation under thehead future prospects by relying on decision of this Court in NewIndia Insurance Co. Vs. Alpa Rajesh Shah, 2013 C.J. (Bom)1623. In the alternate, he submits that, if at all this Court isBhagyawant Punde {4} 910-fa-2555-2016inclined to grant compensation under the head future prospects,claimants would be entitled for 40% addition and not 50%.8.Perusal of record shows that accidental death ofdeceased is not in dispute. Claimant Sunanda is the eye witnessto the accident. The Tribunal by relying on the version ofclaimant Sunanda and police papers has rightly held thataccident has occurred due to rash and negligent driving of thetruck.9.In support of contention that deceased was servingas salesmen with Tribhovandas Bhimji Zaveri Ltd., and drawingsalary of Rs. 19,000/- per month, PW 2 Subhash Panchal wasexamined who was accountant with the jeweler. He has deposedthat deceased Ankush was drawing salary of Rs. 17,200/- andplaced on record salary certificates Exhibit-39 and 45 to 47.Account statement of deceased was also filed at Exhibit-44.10.The Tribunal held net salary of deceased at Rs.17,000/- per month and assessed notional income at Rs.2,04,000/-. By deducting 1/3rd amount towards personalexpenses, assessed annual dependency at Rs. 1,36,000/-. TheTribunal further observed that “as there is no evidence broughton record in respect of future prospectus in view of principle laidBhagyawant Punde {5} 910-fa-2555-2016down in New India Insurance Co. Vs. Alpa Rajesh Shah (citedsupra) claim in respect of future prospectus cannot beconsidered.”11.The Tribunal erred in placing reliance on the aboveratio ignoring the fact that in this case deceased was in serviceand was drawing salary and he was not self-employed. TheTribunal has also ignored the ratio in Parany Sethi (supra) that;“58.------------. Judicial notice can be takenof the fact that salary does not remain the same.When a person is in a permanent job, there is alwaysan enhancement due to one reason or the other. Tolay down as a thumb rule that there will be noaddition after 50 years will be an unacceptableconcept.” 12.Reliance is placed on paragraph 59.3 of Pranay Sethi(supra) by learned advocate for insurance company to contendthat claimants may be entitled for 40% future prospects. Para59.3 reads thus:“59.3While determining the income, anaddition of 50% of actual salary to the income of thedeceased towards future prospects, where thedeceased had a permanent job and was below theage of 40 years, should be made. The addition shouldbe 30%, if the age of the deceased was between 40to 50 years. In case the deceased was between theage of 50 to 60 years, the addition should be 15%.Actual salary should be read as actual salary lesstax.”Bhagyawant Punde {6} 910-fa-2555-201613.Para 59.4 of this judgment reads thus:“59.4.In case the deceased was self-employedor on a fixed salary, an addition of 40% of theestablished income should be the warrant where thedeceased was below the age of 40 years. An additionof 25% where the deceased was between the age of40 t0 50 years and 10% where the deceased wasbetween the age of 50 t0 60 years should beregarded as the necessary method of computation.The established income means the income minus thetax component.”14.In view of observations in the above quotedparagraph, since deceased was on a fixed salary, an addition of40% of the established income needs to be made as thedeceased was below the age of 40 years. The established incomeof the deceased is Rs. 17,000/- per month and annual income isRs. 2,04,000/-, in which 40% addition of Rs. 81,600/- needs tobe made towards future prospects. Claimants are thereforeentitled for following compensation.Sr. No.HeadsAmount (Rs.)1Notional Income Rs. 17,000+future prospects @ 40% i.e.6800/-23,800/-2Annual Notional Income23,800 x 122,85,600/-3Less 1/3rd Deduction i.e. Rs.(2,85,600 - 95200)1,90,400/-4Annual Notional IncomeMultiplied by multiplier of 1732,36,800/-Bhagyawant Punde {7} 910-fa-2555-2016(1,90,400 x 17= 32,36,800)5Non Pecuniary damagesawarded by Tribunal:i)Loss of Consortium and loveand affection- 50,000/-ii) Funeral Expenses- 10,000/-60,000/-6Total Compensation needs tobe awarded32,96,800/-7Compensation awarded byTribunal23,72,000/-8Total Enhanced compensation(32,96,800 – 23,72,000)9,24,800/-15.In the result, following order:ORDER(I)First Appeal is partly allowed with proportionate costs.(II)Impugned judgment and award dated 29.12.2015,passed by Chairman, Motor Accident Claims Tribunal,Parbhani in M.A.C.P. No. 264/2013 is hereby modified.(III)Respondents No. 1 and 2 are jointly and severally heldliable to pay enhanced compensation of Rs. 9,24,800/-to the claimants.(IV)Claimants shall be entitled for interest @ 7.5 per annumon the enhanced compensation from the date of filing ofclaim till realization.V)Insurance Company shall deposit enhancedcompensation along with accrued interest in the Tribunalwithin 12 weeks from the date of uploading of thisjudgment.Bhagyawant Punde {8} 910-fa-2555-2016(VI)Claimants to pay additional Court fees on enhanced amount as per rules. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde