Bombay High Court
Maharashtra State Road Transport ... vs Dilip Popatrao Kate And Ors on 6 July, 2018
Equivalent citations: AIRONLINE 2018 BOM 567, (2018) 4 ACC 731, (2018) 4 TAC 128, (2018) 6 ALLMR 792, (2019) 2 MAH LJ 315, (2019) 3 ACJ 2146
Author: K.K. Sonawane
Bench: K.K. Sonawane
1 FA-2771-17-J-I
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2771 OF 2017
Maharashtra State Road Transport
Corporation, Mumbai,
Through Divisional Controller,
MSRTC, Ahmednagar Division,
Ahmednagar. ...APPELLANT
(Ori. Respondent)
V E R S U S.
1. Dilip S/o Popatrao Kate,
Age-40 yrs, occu-Service,
2. Rajendra S/o Popatrao Kate,
Age-38Yrs.,Occu-Agriculture,
3. Vijay S/o Popatrao Kate,
Age : 34 Yrs., Occu-Agriculture,
All Respondents
R/o Wangdari,Tq. Shrigonda,
District Ahmednagar. .... RESPONDENTS.
(Ori. Claimants)
...
Mr. M.K. Goyanka, Advocate for appellant.
Mr. V.D. Hon, Senior Advocate instructed by
Mr. Ashwin V.Hon, Advocate for respondents
....
WITH
CIVIL APPLICATION NO. 4927 OF 2018
IN
FIRST APPEAL NO. 2771 OF 2017
1. Dilip S/o Popatrao Kate,
Age : 41 years, Occ. Service,
2. Rajendra S/o Popatrao Kate,
Age : 39 Years, Occ. Agriculture,
3. Vijay S/o Popatrao Kate,
Age : 35 Years, Occ. Agriculture,
All R/o Wangdari,Tq. Shrigonda,
District Ahmednagar. ...APPLICANTS
(Ori. Claimants)
V E R S U S.
Maharashtra State Road Transport
Corporation, Mumbai,
Through Divisional Controller,
MSRTC, Ahmednagar Division,
Ahmednagar. .... RESPONDENT.
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2 FA-2771-17-J-I
....
Mr. V.D. Hon, Senior Advocate instructed by
Mr. Ashwin V. Hon, Advocate for applicants
Mr. M.K. Goyanka, Advocate for respondent
....
CORAM : K.K. SONAWANE, J.
RESERVED ON : 28th JUNE, 201 8.
PRONOUNCED ON : 6th JULY 2018.
JUDGMENT :-
Heard learned counsel for parties.
2. Admit. With consent of learned counsel for parties, the present first appeal is taken up for final hearing at the stage of admission itself.
3. The present appeal is directed against the impugned Judgment and Award dated 26th August, 2016 passed by the learned Member, Motor Accident Claims Tribunal, Ahmednagar in Motor Accident Claim Petition No. 193 of 2012, whereby allowed the claim petitions under Sections 166 and 140 of the Motor Vehicles Act, 1988 (for short, "M.V. Act") for compensation, arising out of the vehicular accident involving death of deceased - Popatrao Gulabrao Kate.
4. The accident took place on 27-12-2010 at about 7.00 p.m. near Kanifnath Hotel located on Pune-Ahmednagar road. At the relevant time of accident, the deceased Popatrao was walking down towards bus stop in southern side of Pune-Ahmednagar road. The motor vehicle ST Bus driven by driver namely Eknath Andhale hit him. The victim Popatrao sprawled on the ground and received fatal injuries. He became unconscious on the spot. He was escorted to the Hospital at Shirur, and thereafter, shifted to Pune for better medical treatment. ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 :::
3 FA-2771-17-J-I Meanwhile, the information of the accident was passed on to the Police of Shirur Police Station. The Police rushed to the spot and drawn panchnama of scene of occurrence. The victim Popatrao hovering in between life and death since the occurrence of accident on 27-12-2010 till 15-01-2011. The medical experts made endeavour to resuscitate the victim Popatrao, but their efforts did not yield result. Eventually, the injured Popatrao breathed his last on 15-01-2011. The relative of deceased Popatrao, namely, Hanumant Baburao Kate approached to the Police Station and filed the report. Pursuant to the FIR, Police of Shirur Police Station registered the Crime No. 410 of 2010 under sections 279 and 304-A, etc. of Indian Penal Code. The Investigating Officer has carried out the investigation. He recorded statements of witnesses acquainted with the facts of the case. After completion of investigation, the charge-sheet came to be filed against ST Bus driver. It has been alleged that the driver of ST Bus was so rash, negligent while driving the vehicle and caused death of the deceased Popatrao. The claimants being legal representatives of the deceased Popatrao rushed to the Tribunal and moved the application under sections 166 and 140 of the M.V.Act for compensation arising out of vehicular accident involving death of their family member in the mishap.
5. On receipt of notice, the respondent- MSRTC appeared in the proceeding and opposed the contentions put-forth on behalf of claimants. The learned Tribunal after considering the entire factual score and evidence on record arrived at the conclusion that the claimants are entitled to get compensation amount for loss sustained to them following vehicular accident resulting into death of deceased ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 ::: 4 FA-2771-17-J-I Popatrao. Therefore, the learned Tribunal passed the impugned Judgment and Award, which is the subject matter of the present appeal.
6. Mr.Goyanka, learned counsel for the appellant - MSRTC vehemently submits that the impugned Judgment and Award passed by the Tribunal is erroneous, illegal and not within purview of law. The Tribunal did not appreciate the evidence on record in its proper perspective and arrived at the erroneous conclusion that the income of deceased was Rs.2,43,000/- per annum. The learned counsel for the appellant harped on the circumstance that the Tribunal considered the sugarcane bills issued by the Shrigonda Sugar Factory (at Exhibits-31 and 32) on record and calculated the annual income of the deceased Popatrao. He submits that the cost of sugarcane supplied to the Sugar Factory in a particular season would not be a basis for assessment of annual income of the deceased. He explained that the deceased was agriculturist by profession and normal rule about deprivation of the income is not applicable to the cases, where the agricultural income would be income source of deceased. There were no documents on record that the deceased was having agricultural land in his name and he would get income from the yield like sugarcane, wheat, groundnut, etc. According to learned counsel Mr. Goyanka, the minimum notional income of Rs. 3000/- per month would be proper amount for determination of compensation towards loss sustained to the family due to accidental death of deceased Popatrao. He submits that the compensation amount in lieu of loss of supervision charges for agricultural operation is required to be considered in this case. He ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 ::: 5 FA-2771-17-J-I relied upon the ratio laid down in judicial precedents - (1) State of Harayana and another Vs. Jasbir Kaur and others reported in 2003 AIR SCW 4198, (2) New India Assurance Co. Ltd. Vs. Charlie and another reported in AIR 2005 Supreme Court, 2157(1), (3) National Insurance Company Limited Vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases,
680.
7. Per contra, learned Senior Advocate Mr. Hon contends that the deceased Popatrao was agriculturist by profession. He used to cultivate cash crops like sugarcane, wheat, groundnut, onion, etc. in his agricultural land. But, owing to sudden demise of deceased Popatrao following vehicular accident, family sustained loss of income from the agricultural land. Mr. Hon, learned Senior Advocate fairly conceded that there should be just and reasonable compensation payable to the claimants for the loss caused following untimely death of their family member in vehicular accident. He submits that the deceased was agriculturist, therefore, normal rule of deprivation would not be made applicable. However, it does not mean that the notional income @ Rs. 3000/- per month would be proper income for determination of compensation in this case.
8. Mr. Hon, learned Senior Advocate relied upon the expositions of law in judicial precedent in the case of - State of Hariyana and another Vs. Jasbir Kaur and others reported in (2003) 7 Supreme Court Cases 484, wherein it has been observed that, even after accidental death of the deceased the land possessed by him still ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 ::: 6 FA-2771-17-J-I remain with his legal heirs. They may required to engage persons to look after the agricultural land. Therefore, the loss of supervision charges, etc. would be a factor to be considered for assessment of compensation in this case. Mr. Hon learned Senior Advocate kept reliance on the legal guidelines delineated by the learned Single Judge of Karnatka High Court in the case of - G. Sharanappa and another Vs. Sri Khushidkhan and others (M.F.A.No. 25890 of 2011 decided on 12th December, 2012) ; wherein, the Karnatka High Court considered the agricultural operation and its costs, and, arrived at the conclusion that the supervision charges of Rs. 6000/- per month for agricultural land would be proper and it would be considered as loss of income of the deceased for assessment of compensation amount. Therefore, Mr. Hon, learned Senior Advocate prayed to calculate the compensation amount payable to the claimants on the basis of observations in the aforesaid judicial precedent.
9. Having given anxious consideration to the rival submissions in the light of aforesaid judicial precedents relied upon on behalf of both sides, it appears that the Tribunal has committed grave error while appreciating the bills of the sugarcane crop supplied to the Sugar Factory for assessment of annual income of the deceased. The factual aspect of the matter reflects that it would fallacious to consider that the annual income of the deceased Popatrao was Rs.2,43,000/-. The conclusion drawn by the Tribunal seems completely rests on the basis of sugarcane bills issued by the Sugar Factory (Exhibits-31 and 32). It is true that the sugar cane corps were supplied to the Sugar factory on behalf of deceased Popatrao in a ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 ::: 7 FA-2771-17-J-I particular year. But, it does not mean on each and every year, the deceased was taking such yield for earning Rs.2,43,000/- per annum. It would preposterous and incomprehensible to appreciate that there was a loss of Rs.2,43,000/- per annum caused to claimants due to death of deceased Popatrao in vehicular accident. No expert is required to assume that the yield from agricultural land would not get affected or diminished even after death of land owner Popatrao. The agricultural land still remains in possession of the claimants being legal heirs of deceased Popatrao. At the most due to sudden death of deceased Popatrao, there may be possibility that the claimants may get engage more labourers to look after the agricultural operation. But, it does not mean that there was total loss of income from the agricultural field. The law prescribed that the normal rule about deprivation of the income is not strictly applicable to the cases, where agricultural income is the source for deceased.
10. In the instant case, the deceased Popatrao was agriculturist by profession. He used to cultivate the land. He had also supplied his sugarcane crop to the Shrigonda Sugar Factory. P.W. 3 Dnyandeo Khetmalis was the Accountant of the Sugar Factory. He deposed about the facts of supply of sugarcane crops by deceased Popatrao to Sugar Factory. He produced and proved the sugarcane bills issued in the name of deceased Popatrao. These circumstances indicate that the deceased Popatrao used to cultivate the land and taken yield like sugarcane, etc. from the field. But, due to untimely demise of deceased Popatrao, there would be loss of supervision to the agricultural operation in the field. It would be reasonable to conclude ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 ::: 8 FA-2771-17-J-I that the claimants would require to engage more labourers for agricultural operation in the field. Therefore, it is evident from the circumstances on record that there would be loss of supervision of agricultural land and the loss could be construed @ 200/- per day i.e. @ Rs.6,000/- per month for the claimants.
11. The learned counsel for the appellant -MSRTC raised another objection pertains to expenses incurred by the claimants for medical treatment of the deceased Popatrao. The Tribunal was pleased to grant Rs. 2,36,981/- towards medical and hospital charges. In view of serious nature of injuries to deceased Popatrao and his period of hospitalization, etc., I do not find any force in the arguments advanced on behalf of Mr. Goyanka, learned counsel for the appellant. There is no dispute that since the date of accident till 15-01-2011, the deceased was admitted in the hospital at Shirur, and thereafter, shifted to Pune for better medical treatment. He was admitted in ICU Ward for considerable period. In such circumstances, quantum of amount determined by the learned Tribunal towards medical and hospital charges appears to be just and reasonable one. The learned Tribunal also awarded Rs. 25,000/- towards funeral and transportation charges. As per legal guidelines in Pranay Sethi's case (supra), funeral charges would be payable @ Rs. 15,000/-. In the instant case, the deceased Popatrao was admitted in the Hospital at Pune. During medical treatment at Pune, he succumbed to the injuries. His dead body was escorted from Pune to his native place for funeral. In such circumstances, additional amount of Rs.10,000/-towards transportation and Rs.15,000/- towards funeral charges i.e. total Rs.25,000/- would ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 ::: 9 FA-2771-17-J-I be the reasonable amount to be awarded to the claimants. Moreover, in regard to love and affection, the claimants are entitled to get Rs.15,000/- each i.e. Rs.45,000/- under conventional head. Accordingly, the claimants are entitled to get amount as referred above towards compensation under conventional head.
12. In view of aforesaid discussions, it would be apposite to appreciate following mathematical calculation given in tabular form to facilitate for ascertaining the multiplicand to determine the amount of just and reasonable compensation payable to the respondents-original claimants. It would be reiterated that as referred supra, the notional income of the deceased @ Rs. 6000/- per month, which accrues to Rs. 72,000/- per annum came to be determined for assessment of compensation amount. Therefore, the compensation payable to the respondents-original claimants is hereby calculated by taking into consideration the notional income of the deceased @ Rs.6000/- per month i.e. Rs.72,000/- per annum. The following calculation would depict the just and reasonable amount of compensation payable to the claimants.
No. Particulars Amount (in Rs)
A Total income per year 6000 X 12 72,000/-
B 1/3rd deductions towards 72,000 - 24,000 48,000/-
personal and living expenses
C Pecuniary loss after applying 48,000 x 5 2,40,000/-
multiplier of '5' as deceased
was between 70 years old
Total compensation payable to the claimants 2,40,000/-
Additional medical and hospital charges 2,36,981/-
Additional love and affection for applicants No.1 45,000/-
to 3 @ Rs.15,000/- each
Additional funeral and transportation charges 25,000/-
Total .. .. .. :- 5,46,981/-
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10 FA-2771-17-J-I
13. In the above premise, it is to be concluded that the
respondents/original claimants are entitled to get compensation @ Rs.5,46,981/- towards loss caused to them following untimely accidental death of their father deceased Popatrao. The Tribunal calculated the sum payable to claimants @ Rs. 12,21,981/-, which seems to be exorbitant and excessive one and same was calculated by the Tribunal without any basis. It transpired that the findings expressed by the Tribunal for evaluation of compensation amount are erroneous, incorrect and liable to be modified. Accordingly, impugned Judgment and Award passed by learned Tribunal is hereby modified. The respondents/original claimants are entitled to get amount of compensation @ Rs.5,46,981/- (including NFL amount of Rs.50,000/-) instead of total sum of Rs.12,81,981/- awarded by the Tribunal. The claimants are also entitled to receive interest @ 9 % per annum on the compensation amount of Rs. 5,46,981/- from the date of petition till realization of decreetal amount.
14. In sequel, the appeal stands partly allowed. The impugned Judgment and Award of the Tribunal is modified as referred above. The deficit court fees, if any, be recovered from the respondents-original claimants prior to disbursement of the compensation amount in their favour.
15. The civil application No. 4927 of 2018 seeking permission for withdrawal of the amount on behalf of respondents-original claimants stands partly allowed. The respondents/applicants are hereby permitted to withdraw the compensation amount of ::: Uploaded on - 07/07/2018 ::: Downloaded on - 08/07/2018 02:05:17 ::: 11 FA-2771-17-J-I Rs. 5,46,981/- determined by this Court with interest @ 9% p.a. from the date of petition till disbursement of the amount in their favour. However, rest of the excess amount other than payable to the respondents-original claimants deposited on behalf of the appellant - MSRTC, be refunded to the the appellant - MSRTC. Accordingly, first appeal and civil application stand disposed of in above terms. No orders as to costs.
Sd/-
[ K. K. SONAWANE ] JUDGE MTK.
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