High Court
Legal Reasoning
1 F. A. 1571-2018.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1571 OF 2018Oriental Insurance Company Ltd.,Through its Branch Manager,Branch Office, Parbhani,Tal. & Dist. Parbhani... Appellant (Orig. Respt. No. 2)Versus1.Kausar Begum w/o Yunus Khan,Age : 34 years, Occu. : Household,R/o. : Vazirabad, Dist. Parbhani.2.Needa Khanam D/o Yunus Khan,Age : 12 years, minor u/g. Respondent No. 1,3.Mahin Aara D/o Yunus Khan,Age : 7 years, minor u/g. Respondent No. 1,4.Rehan Khan S/o Yunus Khan,Age : 4 years, minor u/g. Respondent No. 1,5.Mahemooda bee W/o Wahed Khan,Age : 69 years, Occu. Nil.R/o. : Vazirabad, Dist. Parbhani... Orig. Claimants6.Prabhakar S/o Baburao Gite,Age : Major, Occu. : Business,R/o. : Shivaji Nagar, Jintur, Tq. Jintur,Dist. Parbhani. .. Respondents(Respt. No. 6 is Orig. Respt. No. 1)Mr. U. S. Malte, Advocate for the Appellant (case through V.C.).Smt. A. N. Ansari, Advocate for Respondent Nos. 1 to 5.Mr. Anand Dale, Advocate h/f Mr. S. S. Rathi, Advocate for Respondent No. 6. 1 of 10 2 F. A. 1571-2018.odt CORAM : KISHORE C. SANT, J.Date on which reserved for order :12th October, 2023.Date on which order pronounced :06th December, 2023. ORDER :- .The Insurance Company has filed this appeal challenging thejudgment and award dated 06.10.2016 passed by the learned Member,M.A.C.T./Adhoc District Judge – 1, Parbhani in M.A.C.P. No. 372/2013.By way of impugned judgment the learned Member, M.A.C.T. has partlyallowed the claim directing the respondents i.e. the Insurance Companyand the owner of the vehicle to pay an amount of Rs. 5,00,000/-including NFL to the claimants – present respondent Nos. 1 to 5 in theproportion as stated in the award. The present appellant wasrespondent No. 2 and present respondent No. 6 was respondent No. 1/owner of the vehicle.2.The facts in short are that the claimant No. 1 is widow of oneYunus Khan Wahed Khan. The claimant Nos. 2 to 4 are daughters andson of claimant No. 1. The claimant No. 5 is the mother of deceased.The deceased was coming to Aurangabad in a vehicle bearingregistration No. MH-20-N-1011 on 23.09.2013 by driving. Whilecoming towards Aurangabad on Jintur-Parbhani road near Sai Nagri hemet with an accident. A Tempo vehicle bearing registration No. 2 of 10 3 F. A. 1571-2018.odtMH-4-AG-7693 came from the opposite direction on wrong side in ahigh speed gave dash to the vehicle of the deceased. In the saidaccident deceased died on the spot. A crime was registered against thedriver of the offending vehicle. At the time of death deceased was of37 years of age. He was engaged in the business of selling of plots. Hewas also having agricultural land of 15 Acres. His income was taken tobe Rs. 25,000/- per month. Since the deceased died in an accident theclaimants lodged claim under Section 166 of the Motor Vehicles Act.3.The owner of the vehicle – respondent No. 1 in the claim petitionfiled written statement. It is denied that, the offending vehicle wasdriven in rash and negligent manner. It is alleged that, it was thedeceased who was driving a vehicle in rash and negligent manner.4.The respondent No. 2 Insurance Company – present appellantalso opposed the claim petition. It is not disputed that the offendingTempo was insured with the Insurance Company. It is alleged that, thedriver of the offending vehicle was not holding valid and effectivedriving license at the time of alleged incident. There is no evidencecertificate obtained for the said Tempo vehicle. Thus, there was breachof terms and conditions of the policy. The age and income of thedeceased is totally denied. The total claim was opposed being 3 of 10 4 F. A. 1571-2018.odtexcessive and exorbitant.5.The claimants in support of their case examined two witnessesi.e. claimant No. 1 herself and one Dayan Khan, an eye witness to theaccident. The learned Member, M.A.C.T. thus on recording theevidence accepted the case of the claimants that the accident took placebecause of rashness and negligence of the offending vehicle and thesame was coming in wrong side. So far as income is concerned, thelearned Member, M.A.C.T. held that the deceased was holdingagricultural land only to the extent of 34 R at village Satla, Tq. AndDist. Parbhani and 40 R from another land at village Satla. Thus, thetotal holding was taken only of 74 R and both the lands are dry land.There is no evidence produced on record about the income of hisagricultural land. So far as income out of his business is concerned, thelearned Member, M.A.C.T. considered the account statement of thebank wherein it is shown that the amount standing in the accounts areas Rs. 40,059/-, Rs. 5,10,176/- and Rs. 13,774/- in three differentaccounts. No regular deposit is seen in the bank. Since there was noany other proof, the learned Member, M.A.C.T. considered his monthlyincome to be Rs. 10,000/-. Thus, about the compensation the learnedMember, M.A.C.T. took the income as Rs. 10,000/- per month. Thetotal income of the deceased was Rs. 1,20,000/- per year. 50% towards 4 of 10
Legal Reasoning
5 F. A. 1571-2018.odtfuture prospects is added to his income. Thus, the yearly income wastaken to be Rs. 1,80,000/-. Considering the number of dependents1/4th income was deducted towards personal expenses. Since age ofthe deceased was 37 years as per the case of the claimants, multiplierof 15 is applied. Thus, the total compensation taken to be Rs.20,25,000/-. In addition to this, consortium of Rs. 1,00,000/- wasgranted. Towards love and affection Rs. 50,000/- was granted.Rs. 25,000/- towards funeral expenses was granted. Thus, the totalamount of Rs. 22,00,000/- was directed to be paid to the claimants.6.Against this award the Insurance Company has filed this appeal.It is vehemently argued by learned advocate Mr. Malte for the appellantthat in absence of any proof towards income the learned Member,M.A.C.T. has wrongly taken the income to be Rs. 10,000/- per month.He further assailed the finding that the learned Member, M.A.C.T. hasdeducted personal expenses only to the extent of 1/4th which ought tohave been 1/3rd. He relied upon the following judgments.(i)Sumitra Dwarkanath Sirsat (Smt.) and others Vs.Shivanand Hanumantappa Bisirotti reported in 2015(3) AIR Bom R 136.(ii)Savita Vs. Bindar Singh and others reported in2014 AIR (SC) (Supp) 275. 5 of 10 6 F. A. 1571-2018.odt(iii)Ladu Pandurang Korgaonkar Vs. Gokuldas R.Sawant & ors. reported in 2011 (1) Bom.C.R. 67.(iv)National Insurance Company Limited Vs. PranaySethi and others reported in AIR 2017 Supreme Court5157.7.Learned advocate Smt. Ansari for respondent Nos. 1 to 5vehemently opposed the appeal. She submits that the learned Member,M.A.C.T. has rightly considered the facts and the evidence in the case.So far as liability is concerned, there is no dispute that the vehicle wasinsured with the company. The company could not prove any breach ofcondition. From the bank statement it is seen that there wascontinuous deposit of the amount in the bank account. Futureprospects are rightly considered to be 50% considering the age of thedeceased below 40 years. No case is made out to call for interferenceand she prayed for dismissal of the appeal.8.In the case of Sumitra Dwarkanath Sirsat (Smt.) and others(supra), this Court has considered that there was no evidence about theincome and therefore, it was taken to be Rs. 3,000/- per month. Inthat case, the accident had taken place in the year 2004 andconsidering that the notional income was taken to be Rs. 3,000/- permonth. From the said judgment it is seen that, there the deceased was71 years of age at the time of accident. Thus, on facts the present case 6 of 10 7 F. A. 1571-2018.odtis different from the facts of the said case.9.In the case of Savita (supra), the Hon’ble Apex Court has takenthe notional income as Rs. 3,000/- per month. In that case, theaccident had taken place in the year 2010. The Hon’ble Apex Courttaken the income Rs. 3,000/- per month in that case as deceased wasworking as labourer. Here in the present case, the deceased was selfemployed and was in the business of plotting. He was having his ownvehicle. His saving also shows that he was man of sufficient means.On this, this Court does not find that, to consider his income as Rs.10,000/- is unreasonable.10.In the case of Ladu Pandurang Korgaonkar (supra), the incomewas taken to be Rs. 4,000/- per month as the deceased was working asa Carpenter. In that case the accident had taken place in September1998. The income was thus taken in 1998 i.e. much prior to thepresent case and hence the figures of income in the said judgmentcannot be made applicable in this case. 11.Lastly the reliance is place in the case of National InsuranceCompany Limited (supra), to show that the personal deduction shouldhave been 1/3rd of the total income. However, looking to thedependents i.e. five persons this Court finds that, the learned Member, 7 of 10 8 F. A. 1571-2018.odtM.A.C.T. has rightly considered the deduction as 1/4th of the income.12.Considering the case this Court finds that, the only thingrequired to consider is about the income of the deceased. It is the caseof the claimants that the deceased was doing a business of selling ofplots. Though the claim is made about agricultural land, however,nothing is shown to prove the income out of agricultural land. Theagricultural land is shown to be only 74 R. Though the land isconsidered to be a dry land, in absence of any proof of agriculturalincome the learned Member, M.A.C.T. was correct in considering theagricultural land. So far as the notional income is concerned it needsto seen that the deceased was having Rs. 5,10,176/- in his account. Inother two accounts he was having an amount of Rs. 40,059/- and Rs.13,774/-. If income is to be taken as per the submission of Mr. Malte,learned advocate for the appellant to be Rs. 3,000/- it hardly can bebelieved that a person could not make such savings. Rs. 5,00,000/-must be a saving at least of two-three years. Since the person ismaking saving more than Rs. 2,00,000/- per year, certainly he wouldearn double of the said amount. It is also seen that, the vehicle was hisown vehicle which again shows that he was a person having soundposition. The accident took place in the year 2013. Considering that aperson having own vehicle in the year 2013 certainly this Court finds 8 of 10 9 F. A. 1571-2018.odtthat the learned Member, M.A.C.T. has rightly drawn inference that theincome of the deceased would be around Rs. 10,000/-.13.In the appeal, the appellant was directed to deposit the amountin this Court which was accordingly deposited. This Court by orderdated 06.04.2018 had allowed the claimants to withdraw 50% of theamount deposited in this Court along with interest accrued thereonwhich is accordingly withdrawn. 14.This Court finds that, absolutely no case is made out to call forinterference in the impugned judgment. In view of the same, thefollowing order is passed.ORDER(i)The first appeal is dismissed.(ii)The impugned judgment and award is confirmed.(iii)Since the appeal is dismissed, it would be proper to direct the office of this Court to allow the claimants to withdraw remaining amount lying in this Court along with interest if any accrued thereupon. 9 of 10 10 F. A. 1571-2018.odt(iv)If any amount is still not deposited by the Insurance Company the same shall be paid to the claimants within a period of ninety (90) days from today.15.The first appeal stands disposed off. ( KISHORE C. SANT, J. ) P.S.B. 10 of 10