High Court · 2024
Facts
FA 1063/20201IN THE HIGH COURT AT BOMBAYAPPELLATE SIDE, BENCH AT AURANGABADFIRST APPEAL NO. 1063 OF 20201.Smt. Mirabai W/o. Bhanudas Jawale,Age 57 yrs., Occu. Household,2.Ajay S/o. Bhanudas Jawale,Age 40 yrs., Occu. Service,3.Girish S/o. Bhanudas Jawale,Age 37 yrs., Occu. Nil,4.Suhas S/o. Bhanudas Jawale,Age 36 yrs., Occu. Service,All R/o. Pokhardi, Tq. Nagar,Dist. Ahmednagar.....Appellants.(Ori. Claimants)Versus1.Nitin S/o. Popat Dhiwar,Age Major, Occu. Owner,R/o. Plot No. 72, Yeshwant Talija,Bhavani Nagar, Pipeline Road,Savedi, Ahmednagar.2.Reliance General Insurance Company Ltd.,Through its Branch Manager,“A” Wing, 2nd Floor Ambar Plaza,Near Old Bus Stand, Ahmednagar.....Respondents(Ori. Opponents 1 & 2)Mr. Umakant U. Wagh, Advocate for appellants.Mr. U.A. Sayyed, Advocate h/f. Mr. K.N. Shermale, Advocate for respondentNo. 1.Mr. A.S. Usmanpurkar, Advocate for respondent No. 2.CORAM : KISHORE C. SANT, J.CLOSED ON : 01/08/2024DELIVERED ON : 07/08/2024JUDGMENT : 1)This appeal is by the original claimants for enhancement in the FA 1063/20202amount of compensation and challenging the judgment and order passed bythe learned Motor Accident Claims Tribunal, Ahmednagar dated 1.8.2017passed in MACP No. 902/2011 to that extent. The learned Tribunal hasdirected to pay amount of Rs. 3,24,000/- towards loss of dependencyconsidering the income of Rs.3,000/- p.m. of the deceased, towardsconsortium Rs.25,000/-, towards love and affection Rs. 30,000/-, towardsambulance charge Rs. 3,000/- and towards funeral expenses Rs. 5,000/-and thus, awarded total compensation of Rs. 3,87,000/- to the appellants/original claimants (for the purpose of convenience the appellants arereferred as ‘claimants’, respondent No. 1/owner of offending vehicle as‘owner’ and respondent No. 2 as ‘Insurance Company’ hereinafter).2)The facts in short are that deceased Bhanudas Jawale met with anaccident on 4.11.2011 when he was taking evening walk at about 7.45 p.m.He was dashed by one Bajaj Pulsar motorcycle bearing registration No. MH-16/AU-2127 which was coming from Aurangabad to Ahmednagar. Theclaimants wife and three sons filed claim petition. In the claim petition, theyprayed for an amount of Rs. 9,20,000/-. The deceased was trainedmechanic of diesel engines, generator sets, pump sets etc. He was workingin one firm namely K.P. Bhalerao and Sons since 1972 and used to do jobwork. He was earning Rs.10,000/- p.m. by doing the work of repairing theabove mentioned engines and Rs. 2,000/- to Rs.3,000/- from supply of milkto the households at Ahmednagar. Thus, the income of the deceased wasclaimed to be Rs.12,000/- p.m. 3)The owner filed written statement, stating that the motorcycle was FA 1063/20203not driven in rash and negligent manner. The deceased abruptly came onthe road and received dash of the motorcycle. 4)The Insurance Company took the defence that it was the deceasedwho was negligent. There was no fault on the part of motorcycle. The driverof the motorcycle was not having valid and effective driving license. The ageand income of the deceased were denied.5)Before the Tribunal, claimant No. 1 got herself examined on behalf ofall claimants at Exh. 22. In her cross examination, she accepted thatclaimant Nos. 2 to 4 are in service in MIDC and are married. She could notproduce proof of actual income of the deceased. 6)PW 2 – Vishwesh Yashwant Bhalerao is the person who run a firmnamely M/s. K.P. Bhalerao and Sons. He deposed that the said firm ishaving dealership of Kirloskar Company’s diesel engine, water pump-set,electric pump-set, generators and spare-parts. They also had the workshopfor repairing work. The deceased was working in the said firm since 1972.The deceased had undergone the training programmes arranged byKirloskar Company from time to time. He proved various certificates at Exh.20 showing that the deceased had undergone various training programmes.So far as income in concerned, he deposed that the deceased was earningRs.9,000/- to Rs.10,000/- p.m. by doing the work of repairing engines. Hecould not produce any entries to show that the firm used to send customersto the deceased.
Legal Reasoning
FA 1063/202047)Witness No. 3 for the claimants deposed that the deceased used tosupply milk to his home every day. Witness No. 4 for the claimants alsodeposed on the same line. Both these witnesses could not produce anydocuments to show that they were taking milk from the deceased.8)The claimants further relied upon the documents such as spotpanchanama, inquest panchanama, P.M. report, R.C. book and InsurancePolicy of offending vehicle and also driving licence of the driver of theoffending vehicle. The respondents did not produce any evidence in supportof their defence. After considering the evidence, the learned Tribunal passedthe award as stated above. The claimants are, thus, before this Court. 9)In this Court, the learned advocate for the claimants vehementlyargued that the deceased was skilled person, having special knowledge inrepairing of diesel engines, water pumps, generators etc. He was highlydemanded person for repairing work. The Tribunal ought to have consideredhis income to be Rs.10,000/- p.m. as on every day he used to get 2-3jobworks of repairing the engines. So far as the details of the offendingvehicle and license of the driver of the offending vehicle are concerned,there is no dispute. He further submits that the age of the deceased was 56years at the time of accident. The multiplier of 9 is rightly applied, however,he submits that 10% future prospects ought to have been given which theTribunal has not given. He submits that towards loss of consortium, theTribunal has awarded only Rs.25,000/- to claimant No. 1 only and has notconsidered award of consortium to claimant Nos. 2 to 4. Thus, the Tribunalhas not properly appreciated the loss of consortium. Even for love and FA 1063/20205affection meager amount was awarded. Towards funeral expenses also theamount of Rs.15,000/- ought to have been awarded by the Tribunal. 10)As regards considering notional income, the learned advocate for theclaimants relied upon judgment in the case of Neeta w/o. Kallappa Kadolkar& Anr. Vs. Divisional Manager, Maharashtra State Road TransportCorporation, Kolhapur reported as (2015) 3 SCC 590 and the Gazette ofIndia of the Central Government dated 31.5.2010, wherein the Ministry ofLabour and Employment published a notification specifying monthlyminimum wages to be Rs.8,000/-. The said notification is under sub-section(1B) of section 4 of the Employee’s Compensation Act, 1923. The learnedadvocate also relied upon the judgments in the cases of MohammedSiddique and Anr. Vs. National Insurance Company Ltd. And Ors. reportedas (2020) 3 SCC 57 and Royal Sundaram Alliance Insurance Co. Ltd.,Chennai Vs. Varsha Rajendra Pache & Ors. reported as 2017 96) Mh.L.J.308.11)The learned advocate for the Insurance Company vehementlyopposes the appeal. He submits that the Tribunal has rightly considered theincome of the deceased at the rate of Rs.3,000/- p.m. The claimants couldnot produce any material to show the proof of income of the deceased. Asper the evidence of PW 2 also, the firm in which the deceased was workingis closed and thus, there is no question of his getting any salary. About themilk business, he submits that there is no evidence. So far as interest onfuture prospects is concerned, he relied upon the judgment in the case ofNational Insurance Company Limited Vs. Aisha Bano & Ors. decided byJammu and Kashmir and Ladkh High Court in Mac App No. 33/2022, CM No. FA 1063/202066083/2022 and CM No. 3307/2023 reported as MANU/JK/0700/2023 andthe judgments decided by this Court in the cases of Wahida Abdul RaufChaus and Ors. Vs. Sharad Namdeo Thange & Ors. in the First Appeal No.849/2011 dated 18.10.2022 reported as MANU/MH/3730/2022 and Suman& Ors. Vs. The Branch Manager, Bajaj Allianz Genereal Insurance Co. & Ors.in First Appeal No. 1381/2017 dated 22.11.2021 reported asMANU/MH/4390/2021.12)Thus, looking to the submissions and the judgments relied upon bythe respective parties, this Court proceed further to examine, whether thecompensation awarded in this case is fair and reasonable ?, whether theTribunal has rightly considered the income of the deceased to be Rs.3,000/-p.m. ?, whether the Tribunal was right in awarding consortium amount toclaimant Nos. 2 to 4 and whether the funural expenses are rightly grantedby the Tribunal ?13)So far as income of the deceased is concerned, this Court finds thatthere is ample evidence on record to show that the deceased was a skillfulworker. To consider the income of the deceased to be Rs.3,000/- only iscertainly on much lower side. In the case of Neeta Kadolkar (supra), theSupreme Court had relied upon the minimum wages and held that inabsence of salary slip/certificate, the monthly salary of both the deceasedought to have been considered at the rate of Rs.12,000/- p.m. In the saidcase, the accident had taken place on 22.3.2011. In the Gazette of India forthe year the minimum wages for the year 2010 was declared to beRs.8,000/- p.m. In view of the above, this Court holds that in no case, the FA 1063/20207income of the deceased can be taken less than Rs.8,000/- p.m. 14)So far as contributory negligence is concerned, the Apex Court in thecase of Mohammed Siddique (supra) has laid down that the contributorynegligence is the fact which needs to be established. In the said case, theHigh Court had reduced the compensation by 10% towards contributorynegligence. The said award was set aside by the Apex Court. In the case ofRoyal Sundaram (supra), there was no proof to prove the salary of thedeceased. The employer had deposed that he paid the salary of Rs.10,000/-p.m. In that case, the accident took place on 16.1.2012. The Apex Courtheld that the salary ought to have been taken at Rs.9,000/- p.m. In thatcase, the Tribunal and the appellate Court had disbelieved the oral evidenceof employer about the salary. In this case, this Court finds that the evidenceof employer i.e. P.W. 2 should have been relied upon by the Tribunal byconsidering that the deceased was a skilled worker and used to work in thefirm prior to the closing of the firm and thereafter, was doing the jobwork ofrepairing engines on job basis. This Court finds no difficulty in accepting thecase of the claimant considering the accident took place in the year 2011. 15)Coming to the submission of the Insurance Company, this Court doesnot find much substance. So far as the judgment relied upon by the learnedadvocate for the Insurance Company in the case of National InsuranceCompany Limited Vs. Aisha Bano and Ors. (supra) is concerned, it is inrespect of award of interest on future prospects. In all the three judgmentsrelied upon by the learned advocate for the Insurance Company, it was heldthat the future prospects are events in future and therefore, no interest be FA 1063/20208awarded from the date of claim. This Court finds that this interest is not byway of any penalty. It is only for the reason that the claimants are deprivedfrom compensation immediately for some period and therefore, they shouldnot be deprived of such interest. Considering the above, this Court holdsthat the award of the Tribunal needs to be modified. 16)In the present case, the deceased was working as trained mechanic.Considering the date of accident in the year 2011, the income ought to havebeen taken Rs.8,000/- p.m. Thus, this Court holds that the notional incomeof the deceased was Rs.8,000/- p.m. The said amount needs to be deductedby 1/3rd towards personal expenses of the deceased as claimant Nos. 2 to 4are in employment and were not dependent on the deceased. The amountwould come to Rs.5,334/- p.m. (rounded to Rs.5350/-) i.e. Rs.64,200/- peryear. The age of the deceased was 57 years at the time of accident. Themultiplier would be of 9 as rightly applied by the Tribunal. Considering thatthe figure comes to Rs. 5,77,800/- + 10% towards future earning. Thus,the total compensation comes to Rs. 6,35,580/- towards loss ofdependency. This Court holds that the consortium amount would come toRs.1,60,000/-, amount towards funeral expenses would come toRs.15,000/- and amount towards loss of estate would come to Rs.15,000/-.Thus, the claimants are entitled to get total compensation as follows :-Towards loss of dependencyRs. 6,35,580/-Towards consortiumRs. 1,60,000/-Funeral expensesRs. 15,000/-Loss of estateRs. 15,000/-TotalRs. 8,25,580/-
Decision
FA 1063/20209Thus, this Court holds that claimants are entitled to receive amountof Rs. 8,25,580/- towards compensation on all counts. Thus, the amount ofcompensation be paid accordingly by deducting Rs. 3,87,000/- which isalready awarded by the Tribunal. The enhanced amount shall carry interestas awarded by the Tribunal i.e. 9% p.a. from the date of claim petition tillrealization of the amount. Considering the above facts, this Court holds thatclaimant No. 1 is entitled to receive 55% of the amount of compensationand claimant Nos. 2 to 4 are entitled to receive 15% each. In view of thediscussion made above, the impugned judgment and award is modifiedaccordingly. Hence, the following order.ORDER(I)Appeal is partly allowed.(II)Respondent Nos. 1 and 2 do jointly and severally pay amount of Rs.8,25,580/- to the appellants including no fault liability by deducting Rs.3,87,000/- which was already awarded by the Tribunal. (III)Appellant No. 1 is entitled to receive 55% of the amount ofcompensation and appellant Nos. 2 to 4 are entitled to receive 15%, each,of the amount of compensation. (IV)The amount should carry interest at the rate of 9% p.a. on enhancedamount from the date of filing of the claim petition i.e. 15.12.2011 tillactual realization of the amount. (V)The amount be deposited in this Court within eight weeks from today.(VI)The appeal stands disposed of with no order as to costs. [KISHORE C. SANT, J.]SSC/ FA 1063/20201017)At this stage, learned advocate for the appellant seeks direction tothe office to allow the appellants to withdraw the amount, after it isdeposited in the office of this Court.18)Office is, therefore, directed to allow the appellants to withdraw theamount after it is deposited in the office of this court without requiring anyformal application. [KISHORE C. SANT, J.]