Bombay High Court
Bharti Axa General Insurance Co. Ltd., ... vs Anitabai Anil Sonawane And Ors on 4 October, 2018
Author: P.R. Bora
Bench: P.R. Bora
FA St. No.11577/2018
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL St.NO.11577 OF 2018
WITH
CA NO.8139/2018 & 12291/2018
Bharti Axa General Insurance
Company Ltd. Through its Manager
R/o Bharti Axa General Insurance
Company Ltd., Dhole Patil Road,
Pune. .. APPELLANT
(orig. Resp.No.3)
Versus
1. Smt.Anitabai Anil Sonawane
Age: 34 Yrs., occu. Household
2. Kumar Rohit Anil Sonawane
Age: 10 Yrs., occu. Educational
3. Kumari Pushpa Anil Sonawane
Age: 11 Yrs., occu. Educational
4. Kumar Prashant Anil Sonawane
Age: 7 Yrs., occu. Nil
Minor.
(Resp.Nos. 1 to 4 r/o
Gurukrupa Nagar, Chitod Road,
Dhule, Tq. and Dist.Dhule)
5. Shri Dagadu Shriipat Sonawane
(Bhil) Age: 76 Yrs., occ.nil
6. Sau.Gajarabai Dagadu Sonawane
(Bhil) Age:66 Yrs.,occ.Nil
(Resp.Nos. 5 & 6 r/o Bilakhed,
Tq.Chalisgaon, Dist.Jalgaon.)
7. Shri Pravin Ramkumarsing
Age: Adult, occ.Driver.
8. Omprakash Gahalwat Dwara
Through Discover Logistic Pvt.Ltd.
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FA St. No.11577/2018
(2)
(Resp.Nos.7 & 8 r/o at
Khirkidhola, Sikandarpur Road,
Gurgaon, Plot No.412,
Haryana State) .. RESPONDENTS
(Resp.Nos. 1 to 6 are
orig.Claimants and
Resp.Nos. 7 & 8 are
orig.Resp.Nos.1 & 2.)
...
Mr.V.P.Raje, for Appellant.
Mr.Mahesh H.Patil, Advocate for Resp.Nos. 1 to 6.
...
CORAM : P.R. BORA, J.
DATED : 4th October, 2018.
ORAL JUDGMENT:-
1) The insurance company has preferred the present appeal, challenging the judgment and award passed by the Motor Accident Claims Tribunal, at Dhule (herein after referred to as the Tribunal) in MACP No. 1097/2012 decided on 14th Jul, 2017.
2) Since the challenge raised in the present appeal in exception to the impugned judgment is only restricted to the the quantum of compensation, it does not appear to me that service of notice on owner and driver of the offending vehicle would be mandatory. In the circumstances, though the owner and driver are not served as yet, the appeal is taken up for consideration since the claimants are duly served and Advocate Shri Mahesh Patil has caused appearance for the said claimants. ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:23:03 ::: FA St. No.11577/2018 (3)
3) Delay of 122 days has occurred in filing the appeal by the insurance company. The reasons as are assigned in the application are sufficient to condone the delay. I am, therefore, inclined to condone the delay which has occasioned in filing the present appeal. The delay is condoned. Appeal be registered in accordance with law. On registration of the appeal, issue notice to the Respondents - original claimants. Advocate Shri Mahesh Patil waives notice for the said respondents
- original claimants. Service complete.
4) With consent of the learned counsel for the parties, the appeal is immediately taken up for hearing.
5) The learned Tribunal has awarded the total compensation of Rs.14,75,000/- inclusive of NFL compensation. Age of the deceased on the date of accident was 35 years and he was serving as a driver. It was the case of the respondents - original claimants that deceased Anil used to earn around Rs.6,000/- per month by way of salary and ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:23:03 ::: FA St. No.11577/2018 (4) also used to earn Rs.50/- per day towards Bhatta. In order to prove income of the deceased, the employer of deceased Anil was examined before the court and he has corroborated the facts stated by the claimants that he used to pay Rs.6,000/- per month by way of his salary and he also used to pay Rs.50/- towards Bhatta to deceased Anil. On the basis of the income so proved, the learned Tribunal has assessed the amount of compensation.
6) Shri Raje, learned Counsel appearing for the appellant - insurance company, submitted that in absence of any document produced by the witness examined by the claimants, evidencing the salary amount, merely relying on his oral statement, the Tribunal ought not to have held the salary income of deceased Anil to be proved by the claimants. The learned counsel further submitted that in the circumstances, the Tribunal must have held the income of the deceased by applying the criterion of notional income and in such circumstances, should have held the income of the deceased to the extent of Rs. 3,000/- per month. The learned counsel submitted that the Tribunal has thus erred in ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:23:03 ::: FA St. No.11577/2018 (5) awarding the unreasonable amount of compensation. In so far as application of multiplier; deduction of the amount towards personal expenses etc. are concerned, the learned counsel has not raised any dispute. The learned counsel further submitted that the Tribunal has awarded the amount of Rs.2,75,000/- towards non-pecuniary damages and in view of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. - (2017) 16 SCC 680, it is too exorbitant and no amount of more than Rs. 70,000/- was liable to be awarded under the head of non-pecuniary damages. The learned counsel, therefore, prayed for appropriate modification in the impugned judgment and award.
7) Shri Mahesh Patil, learned counsel appearing for the claimants supported the impugned judgment and award. The learned counsel submitted that the Tribunal has rightly considered the income of the deceased and in view of the prevailing circumstances, has awarded the appropriate compensation. As such, no interference is required in the judgment and award so passed. The learned ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:23:03 ::: FA St. No.11577/2018 (6) counsel, therefore, prayed for dismissal of the appeal.
8) I have given due consideration to the submissions made by learned counsel appearing for the respective parties. In so far as contention raised by the insurance company as about the income of the deceased, it does not appear to me that the Tribunal has committed any error in holding the income of the deceased @ Rs.6,000/- per month in view of the fact that the employer of deceased Anil has specifically deposed before the court that he used to pay Rs.6,000/- by way of salary of deceased Anil and also used to pay him Bhatta @ Rs.50/- per day. There seems no reason to disbelieve the testimony of the said witness. Moreover, it does not appear to me that in the year 2012, salary, as has been stated of the deceased of the post of driver can be held to be in any way on higher side or unreasonable. In the circumstances, in so far as the income held of the deceased by the Tribunal, I see no reason to cause interference in the matter. Having regard to the number of dependents on the income of the deceased, the Tribunal has ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:23:03 ::: FA St. No.11577/2018 (7) rightly deducted 1/6th of the amount towards the personal expenses of deceased Anil. So in that regard also there seems no reason to cause any interference. The Tribunal has applied the multiplier of 16 and has accordingly assessed the dependency compensation to the tune of Rs. 12,00,000/- It appears to me that the compensation, as has been calculated by the learned Tribunal, has been correctly calculated and no interference is required in so far as the amount of compensation as assessed towards the dependency. However, in so far as non-pecuniary damages awarded by the tribunal to the tune of Rs.2,75,000/- are concerned, in view of the judgment of the Hon'ble Apex Court in the case of Pranay Sethi (cited supra), nothing more than Rs.70,000/- could have been awarded by the Tribunal under the said head. To that extent, the impugned award certainly needs modification. The appellants are thus found entitled for the total compensation of Rs. 12,70,000/-. From the evidence on record and in the facts and circumstances of the case, it appears to me that this is the just and fair compensation payable to the respondents claimants in the present ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:23:03 ::: FA St. No.11577/2018 (8) matter. The award, therefore, needs to be modified to the aforesaid extent. It is accordingly modified.
9) The insurance company has deposited the entire amount of compensation along with the interest accrued thereon. The claimants are entitled to receive the amount of Rs.12,70,000/- (Twelve lakhs and Seventy thousand) inclusive of NFL compensation with interest there on @ 9% per annum from the date of filing of the claim petition till date of depositing the amount of compensation by the insurance company in this Court. It would be open for the claimants to withdraw the aforesaid amount from deposited amount. In so far as apportionment of compensation is concerned, the same shall be as per the impugned Award. The remaining amount shall be refunded to the appellant insurance company.
10) The appeal stands allowed in the aforesaid terms. Pending civil application stands disposed of.
(P.R. BORA) JUDGE bdv ::: Uploaded on - 06/10/2018 ::: Downloaded on - 07/10/2018 01:23:03 :::