Bombay High Court
Sau. Sandhya W/O Gopalrao Talokar And ... vs Balaji S/O Keshao Pawar And Others on 20 July, 2017
fa808.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.808 OF 2016
1] Sau. Sandhya w/o Gopalrao Talokar,
Aged about 46 years,
Occ: Housewife,
R/o Kolambi, Tq. & Dist. Akola.
2] Gopalrao s/o Sahebrao Talokar,
Aged about 56 years,
Occ: Nil, R/o Kolambi,
Tq. & Dist. Akola. ....... APPELLANT
...V E R S U S...
1] Balaji s/o Keshao Pawar,
Age-Adult, Occ: Driver,
R/o Ramantoda, Tq. Loha,
District Nanded.
2] Sangram Dadarao Gite,
Age-Adult, Occ: Owner of Balerao
R/o Malakoli, Tq. Loha,
District Nanded.
3] Divisional Manager,
The New India Insurance Company
Ltd., Old Cotton Market, Akola. ....... RESPONDENTS
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Shri S.S. Patil, Advocate for Appellant.
Shri Prashant Thakare, Advocate for Respondent No.3.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE: th
20 JULY, 2017.
ORAL JUDGMENT
1] This appeal is preferred by the original claimants who ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 2 are the parents of the deceased Shiva @ Ankush Talokar, being dissatisfied with the amount of compensation awarded by Motor Accident Claims Tribunal, Akola, vide its judgment and order dated 24.02.2016, passed in Motor Accident Claim Petition No.107/2013.
2] Brief facts of the appeal can be stated as follows:
Appellant No.1 is the mother and appellant No.2 is the father of deceased Shiva @ Ankush. At the time of accident he was running the age of 22 years and studying in 1 st year Civil Engineering Course. On the date of accident on 21.01.2013 at about 07:30 p.m. he was proceeding on Akola Murtizapur road on his motorcycle bearing MH-30 T-0945. When motorcycle reached near Katepurna bridge, one Scorpio Jeep bearing No.MH-26 AF-6515 was coming from opposite direction and it gave dash to the motorcycle of the deceased and fled from the spot. Due to the dash, Shiva got grievously injured and died on the spot. 3] At the time of accident, respondent No.1 was found to be driving Jeep in a rash and negligent manner, as a result of which, the accident has taken place. Therefore, the offence was ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 3 registered against him. Respondent No.2 is the owner of the vehicle, whereas the respondent No.3 is the Insurance Company of the said vehicle.
4] Thus, due to untimely death of the deceased, as the appellants lost their only source of income and the support of his love and affection, they claimed the compensation of Rs.12,00,000/- from the respondent Nos.1 to 3, jointly and severally.
5] Respondent Nos.1 and 2, though duly served with the notice of the petition and appeared in the Tribunal, they did not file the written statement. The claim petition was contested therefore, only by respondent No.3-the Insurance Company vide its written statement at Exh.21, admitting the insurance of the offending vehicle, but denying that the cause of accident was the rash and negligent driving of the Jeep. It was submitted that, as all of a sudden deceased came in front of the Jeep, the accident took place and therefore, it was definitely a case of contributory negligence on the part of the deceased also. It was further submitted that the amount of the compensation claimed was exorbitant and unreasonable. Respondent No.3 therefore, sought ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 4 dismissal of the petition.
6] On these respective pleadings of the parties, the Tribunal framed necessary issues for its determination at Exh.27. In support of their case appellant No.1 examined himself and relied upon various documentary evidence on record. On appreciation of his evidence the Tribunal was pleased to hold that the cause of the accident was rash and negligent driving of the Jeep and accordingly awarded the compensation of Rs.3,50,000/- to the appellants, from respondent Nos.1 to 3 jointly and severally.
7] This judgment and order of the learned Tribunal is not challenged by any of the respondents. The only challenge raised in this appeal by the original claimants is on the count that the amount of compensation awarded by the Tribunal is too meagre and not according to well established principles of law. As against it, learned counsel for respondent No.3 has supported the impugned judgment and order of the Tribunal by submitting that as the deceased was a student, the Tribunal has rightly considered his notional income as Rs.3000/- per month and the multiplier applied by the Tribunal of 18 also does not call for any ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 5 interference. Hence, according to learned counsel for respondent No.3, the impugned judgment and order of the Tribunal being just, legal and correct, so far as quantum of compensation is concerned and it being based on the evidence on record, it needs to be confirmed.
8] In this appeal, the finding arrived at by the Tribunal that the cause of accident was the rash and negligent driving of the Jeep is not challenged, as none of the respondent has filed any cross-appeal or cross-objection, and therefore, that finding has attained finality and hence, need not be disturbed. Otherwise also, the said finding is based on the documentary evidence on record like the copy of F.I.R. Exh.31, spot panchnama Exh.32 and the evidence on record showing that the Police had registered C.R. No.44/2013 against respondent No.1, the driver of the Jeep for the offence punishable under Section 304-A and 279 of the I.P.C. The spot panchnama also clearly goes to prove that the accident has occurred due to rash and negligent driving of the Jeep. Hence, the liability of respondent Nos.1 to 3 to pay jointly and severally the amount of compensation to the appellants-claimants being sufficiently established on record, the only point which arises for consideration in this appeal is whether the quantum of ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 6 compensation awarded by the Tribunal is just, fair, reasonable and correct?
9] On this point also, the factual aspects of the case are not in the realm of dispute. It is admitted that the birth of Shiva was 10.06.1991, whereas the accident in question has taken place on 23.01.2013, and therefore, at the time of accident he was 22 years of age. It is also not disputed that at the time of accident, he was studying in 1st year Civil Engineering Course at Jagdamba College of Engineering and Technology at Yavatmal. The Tribunal has therefore, considered his notional income as Rs.3000/- per month and accordingly, calculated the amount of compensation. 10] However, as rightly submitted by learned counsel for appellant, by placing reliance on the judgment of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another (2009) 6 SCC 121, the compensation amount has to be just and reasonable. In the words of the Hon'ble Apex Court, the assessment of compensation, though involving certain hypothetical considerations, it should nevertheless be objective.
Further, the compensation awarded does not become "just compensation" merely because the Tribunal considers it to be just.
::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 7"Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well-settled principles relating to award of compensation. It is neither intended to be a bonanza, largesse or source of profit nor it should be so meagre as a pittance. 11] In this judgment of Sarla Verma, the Apex Court has held that basically only three facts need to be established by the claimants for assessing compensation in the case of death i.e. (a) age of the deceased; (b) income of the deceased; and (c) the number of dependants. Further, issues to be determined by the Tribunal to arrive at the loss of dependency are: (i) additions/deductions to be made for arriving at the income of the deceased; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. Accordingly, the Apex Court has standardized the determinants, so as to achieve uniformity and consistency in the decisions. It was held that the income of the deceased per annum should be determined and out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 8 of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand. It was further held that when the deceased is unmarried and survived by the parents, 50% of his income needs to be considered towards his personal expenses and 50% as the contribution to the family.
12] As regards the multiplier, it was held that having regard to the age of the deceased and period of his active career, the appropriate multiplier should be selected. In the instant case, as the deceased at the time of accident was unmarried and is survived by his parent, as the age of the appellants is on higher side than the age of the deceased, their age needs to be considered for determining the multiplier. In the instant case, as the age of the appellant Nos.1 and 2, at the time of accident of the deceased was between 50 to 55 years, hence in my considered opinion the appropriate multiplier would be "11" and not "18", as applied by the Tribunal, considering the age of the deceased. 13] As to the income of the deceased, which is one of the important criteria for determining the amount of compensation, it may be true that at the time of accident the deceased was a ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 9 student and not earning income, however, as observed by the Apex Court in the decision of Sarla Verma, this Court has also to consider his future prospects and the active career, which he was going to lead after achieving the Degree of Engineering. Learned counsel for the appellants has also placed reliance on the judgment of the Apex Court in the case of Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma and another 2015(4) Mh.L.J. 36, wherein though the deceased was aged 19 years and was a student of medicine and therefore, at the time of accident nor earning income, despite that, it was held that as the deceased could have reached greater heights, the medical profession being most sought after and rewarding, deceased could have earned income of Rs.25,000/- per month and Rs.3,00,000/- annually. 14] Therefore, in the instant case also, having regard to the fact that deceased was studying in Engineering and therefore, having better future prospects, his income needs to be considered as Rs.20,000/- p.m.; annually it comes to Rs.2,40,000/-. Out of that 50% of the amount needs to be deducted towards the personal expenses of the deceased. Hence the amount of Rs.1,20,000 x 11 = Rs.13,20,000/- will be the financial dependency to which the appellants become entitled, as ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 10 compensation for the financial loss.
15] The Tribunal has then awarded the meagre sum of Rs.16,000/- towards the loss of love and affection and Rs.10,000/- towards funeral expenses. As regards Rs.10,000/- towards funeral expenses, the sum appears to be just and reasonable. Therefore, does not call for any interference. However, as regards the amount towards loss of love and affection, as the appellants have lost their son, having regard to the recent trend of the decision of the Supreme Court as reflected in Rajesh vs. Rajbir Singh 2013 ACJ 1403 (SC), the appellants are required to be held entitled for compensation of Rs.1,00,000/- towards the loss of love and affection. Thus, the total amount of compensation to which appellants become entitled comes to Rs.14,30,000/-. To this limited extent the interference is warranted in the impugned judgment and order of the Tribunal.
16] Accordingly, the appeal is allowed. The impugned judgment and order of Tribunal is modified to the extent that appellants are held entitled to get compensation of Rs.14,30,000/- inclusive of no fault liability amount, with future interest at the rate of 9% per annum from the date of institution of the petition ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 ::: fa808.16.J.odt 11 i.e. 16.07.2013 till realization of the amount, with proportionate cost thereof.
17] The appellants are entitled to get this sum amount subject to payment of the deficit court fee stamp. The amount be distributed proportionately along with interest and costs between appellant Nos.1 and 2.
18] The appeal is allowed and disposed of in the above terms.
JUDGE NSN ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:37:42 :::