High Court
Legal Reasoning
{1} FA-2344-2008IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2344 OF 2008United India Insurance Co.Ltd.Branch Office ShahadaThrough its Divisional Manager and AuthorisedRepresentative and Signatory, Jalgaon DivisionalOffice, Mansing Market, Opp. Atul Dairy, Jalgaon. ...APPELLANT [Ori. Oppo. No. 2]VERSUS1.Smt. Raisabi wd/o Nazim HajiAged about 41 years, Occu. Housewife,2.Shaikh Sajid s/o Nazim HajiAged about 20 years, Occ- Education,3.Shaikh Parvin d/o Nazim HajiAged about 17 years, Occ- Education,4.Shaban Parvin d/o Nazim Haji,Aged about 15 years, Occ- Education,[Res. No. 3 and 4 are minors;represented by throughTheir natural guardian/mother viz, Res No. 1]All r/o Garib Nawaz Colony, ShahadaTah. Shahada, Dist. Nandurbar (Mah.) ...RESPONDENTS [Res. No. 1 to 4 Ori. Claimants]5.Vilas Gopal MaratheAged adult, Occ. Business,R/o Velda, Tah. Nizar, Dist. Surat (Guj).Appeal dismissed as against respondent No. 5 vide order dated 17.11.2006.......Mr. A.B. Gatne, Advocate for the Appellant. Mr. L.S. Mahajan, Advocate for respondent No. 1 to 4. .......Bhagyawant Punde {2} FA-2344-2008 CORAM : KISHORE C. SANT, J. RESERVED ON : 16th OCTOBER, 2023 PRONOUNCED ON: 7th DECEMBER, 2023JUDGMENT:1.This appeal is by the Insurance Company challengingthe judgment and award dated 10.04.2007, passed by learnedMember, Motor Accident Claims Tribunal, Shahada, District-Dhule, in M.A.C.P. No. 62/2005. The learned Member waspleased to partLy allow the claim petition with proportionatecost. Opponent No. 1 and 2 i.e. the owner of the vehicle andinsurer of the vehicle to pay claim amount of Rs. 6,09,500/-,jointly and severally with interest @ 7.5% p.a from the date offiling of petition till its recovery including amount of no faultliability.2.The present appellant was Opponent No. 2. Presentrespondent Nos. 1 to 4 are the original claimants andRespondent No. 5 was original Opponent No. 1.3.Facts in short are that, deceased aged 45 years wasproceeding on motorcycle on 27.02.2005. When he was nearKorit Fata, a truck bearing registration no. GJ-5/V-8644 gavedash to the motorcycle. Because of said accident deceasedBhagyawant Punde
Legal Reasoning
{3} FA-2344-2008Nazim lost his life. He was working as a driver for 11 years andwas getting salary of Rs. 7800/- per month. Claimants/heirs ofdeceased therefore filed claim petition claiming compensation ofRs. 8,50,000/- including medical expenses and expensestowards last rites. Opponent No. 1 failed to appear and thereforeclaim petition proceeded exparte against him. Opponent No. 2filed written statement and denied that accident occurredbecause of rash and negligent driving of the truck. They deniedthe age of the deceased as stated in the claim petition and alsomonthly income.4.The learned Tribunal recorded the evidence and heldthat claimants are entitled to receive compensation as statedabove.5.The learned advocate Mr. Gatne for the appellantargued that learned Tribunal has wrongly held that the income ofthe deceased was Rs. 7800/- per month and that age of thedeceased is 45 years. The accident took place because of themistake of the deceased himself and thus it is the case ofcontributory negligence. There is no evidence produced onrecord to show that the deceased was holding license to drivethe vehicle. There is no evidence of expert to prove the injuriesBhagyawant Punde {4} FA-2344-2008on the deceased etc. It is further submission that the accidenttook place in the year 2005 at that time, drivers’ income wasaround Rs. 3,000/- per month. Considering the personalexpenses annual income ought to have taken as 18,000/- peryear. He relied upon the judgment in Sarla Verma Vs. DelhiTransport Corporation, 2009 (6) SCC 121. It is further submittedthat learned Tribunal has failed to appreciate that it is a case ofcontributory negligence and claimants were entitled only to 50%of the amount of compensation. As per Schedule II under theWorkmen Compensation Act, for the year 2003 deemed salary ofa driver was Rs. 4,000/-.6.Learned advocate Mr. Mahajan, for Respondent Nos.1 to 4 vehemently opposed the appeal. He justified the awardsaying it to be just and proper. He submitted that the InsuranceCompany has not adduced any evidence in support of its case.He submitted that appeal is continuation of proceeding andtherefore relevant changes took place in the law needs to beconsidered to arrive at just compensation. In the present caseconsidering the number of dependents, the amount towardspersonal expenses ought to have been taken only 1/4th asagainst 1/3rd taken by the Court. He submitted that income ofBhagyawant Punde {5} FA-2344-2008the deceased ought to have been taken as Rs. 5,000/- permonth with future prospects @ 25% as deceased was 45 yearsof age. He further submits that no separate appeal is required bythe claimants seeking enhancement. He submits that there is nochallenge by the Insurance Company to the evidence of claimantNo. 1.7.On these rival contentions, this Court has gonethrough the evidence on record. Claimant No. 1- Smt. RaisabiNazim Haji, wife of deceased got herself examined in support ofher claim. In her evidence she stated that deceased was earningRs. 60,000/- per year when he met with an accident. In hercross examination about income only a suggestion was giventhat deceased was not earning Rs. 60,000/- and that earning ofdeceased was Rs. 2,000/- to 2500/- per month. No any otherwitness is examined by the parties. On this evidence, learnedTribunal proceeded to hold that deceased was earning Rs.5,000/- per month inclusive of daily bhatta of Rs. 100/- per dayas the deceased was required to go out of station on the vehicleand took income of deceased as Rs. 60,000/- per year. TheTribunal further accepted the age of deceased to be 45 years asClaimant No. 1, his wife was aged about 41 years. The children,Bhagyawant Punde {6} FA-2344-2008claimants No. 2 to 4 were teen aged children. The learnedTribunal applied multiplier of 15. The amount of loss of futureearning was taken to be 9,00,000/- and by deducting 1/3rdincome, the same was taken to be Rs. 6,00,000/- as loss ofdependency. The statutory benefits were accorded at Rs. 2,000/-towards funeral expenses, Rs. 2500/- towards loss of estate andRs. 5,000/- towards loss of consortium for applicant No. 1 i.e.wife of deceased.8.This Court does not find that learned Tribunal hascommitted any mistake by taking the age of the deceased as 45years and income of deceased to be 60,000/- per year. TheInsurance Company could not produce any evidence in supportof its case.9.Coming to the submission of Mr. Mahajan, learnedadvocate appearing for respondent Nos. 1 to 4 that though thereis no appeal filed for enhancement still claimants can pray forenhancement in view of judgment in New India AssuranceCompany Ltd. vs. Seema Sudam Auti and others, [2017(6)Mh.L.J. 828]. In the said judgment, this Court considered thejudgment in the case of Nagappa vs. Gurudayal Singh andothers, (2003) 2 SCC 274, wherein the Apex Court has held thatBhagyawant Punde {7} FA-2344-2008“it is the duty of the claims tribunal as well as the appeal Courtto determine and award just and reasonable compensation andthat such duty is statutory irrespective of whether claim hasbeen made in respect thereof or not.” In the reported case theCourt had enhanced the amount of compensation in the appealby insurance company and in absence of appeal by claimants.10.This Court finds that in the present case also noamount towards future prospects was calculated. Consideringthe age of deceased to be 45 years, 25% amount needs to beadded to loss of future income. The learned Tribunal hasconsidered loss of future income to be Rs. 6,00,000/-. Thereneeds to be 25% addition to the said amount. Thus, in additionto compensation already directed to be paid, Rs. 1,50,000/-needs to be added. In view of above, this Court finds that appealdeserves to be dismissed, however, award needs to be modifiedby adding 25% amount i.e. Rs. 1,50,000/- to the compensationalready awarded. The award therefore needs to be modifiedaccordingly. Hence, the following order:ORDER(I)First Appeal No. 2344 of 2008 is dismissed.(II)Award dated 10.04.2007 be modified by adding Rs.Bhagyawant Punde
Decision
{8} FA-2344-20081,50,000/- towards loss of future prospects. Appellant-Insurance Company is directed to deposit amount of Rs.1,50,000/- in this Court towards future prospects within90 days from today along with interest from the date offiling of claim petition i.e. 18.03.2005 till its actualrealisation. After the deposit of the amount,respondents No. 1 to 4/claimants shall be entitled towithdraw the same without making any formalapplication.(III)Appeal stands disposed of accordingly. [KISHORE C. SANT, J.]Bhagyawant Punde