Sushama Rajendra Sagar And ORS v. Shankarrao Uttamrao Patil And ANR

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD FIRST APPEAL NO. 3156 OF 2016 1) Smt. Sushma w/o. Rajendra Sagar, Age: 36 years, Occu. Nil, 2) Kum. Rupika d/o. Rajendra Sagar, Age: 13 years, Occu.: Education 3) Roshan s/o. Rajendra Sagar, Age:10 years, Occu.: Education 4) Sau Mirabai w/o. Laxman Sagar, Age:67 years, Occu.: Household 5) Shri Laxman s/o. Dharamdas Sagar, Age: 71 years, Occu: Nil, Appellant No.1 is legal Guardian of Appellant Nos. 2 and 3.

All R/o. Kakasheth Lane, Taloda Dist. Nandurbar ...APPELLANTS (Orig. Claimants)

VERSUS

1) Shankarrao Uttamrao Patil, Age: Adult, Occu: Dumper owner, R/o. Saraswati Colony, Nandurbar 2) Bajaj Allianz Insurance Company Ltd.

Through Branch Manager, Bombay - Agra road, Nashik ...RESPONDENTS (Orig. Respondents) ...

Mr. Mayure Pramod C., Advocate for Appellants Mr. S.G. Chapalgaonkar, Advocate for Respondent No.2 ...

CORAM : P.R. BORA, J.

Dated: July 06, 2017 ...

ORAL JUDGMENT :

1.

The appellants have filed the present appeal seeking enhancement in the amount of compensation as awarded to them by the Motor Accident Claims Tribunal at Shahada, in M.A.C.P. No.147 of 2009 decided on 29th of August, 2015. Heard finally with consent.

2.

The appellants had filed the aforesaid claim petition claiming compensation on account of death of Rajendra Laxman Sagar, in a vehicular accident happened on 26th of March, 2008, having involvement of a Dumper bearing registration No. MH-39-C-116 owned by present respondent no.1 and insured with present respondent no.2 Insurance Company. The claimants had claimed compensation of Rs.7,00,000/- ( Rs. seven lakhs). It was the contention of the appellants claimants that deceased was serving with a private contractor as a supervisor and used to earn around Rs.4,500/- per month. As stated in the petition, the age of the deceased was 39 years at the time of his death. It was the further contention of the appellants that the deceased was also holding agricultural land and was also carrying on milk business. The Tribunal, after having assessed the evidence brought before it, awarded compensation of Rs.6,20,000/- inclusive of No Fault Liability compensation to the claimants. Dissatisfied with the amount

of compensation so offered, the appellants have preferred the present appeal.

3.

Shri Mayure, learned Counsel appearing for the appellant, submitted that the Tribunal has erred in not considering future prospects of the deceased while determining the amount of dependency compensation and has also committed an error in not awarding any amount to the appellants claimants towards loss of estate and loss of consortium. Learned Counsel submitted that the amount of compensation, therefore, needs to be adequately enhanced. Learned Counsel submitted that the income of the deceased was duly proved by the claimants to the tune of Rs.4,500/- per month and, as such, while determining the amount of dependency compensation, at least 30 per cent of the said income ought to have been added to the income and thereafter only, the dependency compensation must have been assessed by the Tribunal.

Learned Counsel submitted that no amount has been awarded by the Tribunal to the appellants towards loss of consortium and loss of estate and the same also needs to be awarded.

third amount towards personal expenses of the deceased ignoring that the number of dependents on his income was more than three and, in such circumstances, not more than one fourth amount could have been deducted from his gross income.

4.

Shri Chapalgaonkar, learned Counsel appearing for the Insurance Company, submitted that in absence of any cogent and sufficient evidence as about future prospects of the deceased, the Tribunal has not committed any error in not considering the said aspect. Learned Counsel was fair enough in submitting that while determining the amount of dependency compensation, having regard to the number of dependents, only one fourth of the gross income of the deceased was liable to be deducted. To that extent, according to the learned Counsel, the compensation may be appropriately enhanced. Learned Counsel further submitted that it is true that the Tribunal has not awarded any compensation under the heads of loss of estate and loss of consortium to the claimants and that the said aspect may also be appropriately considered by this Court. Learned Counsel submitted that in so far as the amount of dependency compensation is concerned, except that one third deductions were made, no further enhancement is

possible. Learned Counsel, therefore, prayed for appropriate orders.

5.

I have carefully perused the impugned judgment. In order to prove the income of the deceased, the contractor was examined by the appellants / claimants with whom the deceased was lastly working. As has come in his evidence, deceased was getting monthly salary of Rs.4,500/-. The Tribunal has relied upon evidence of the said contractor and, accordingly, held the monthly income of the deceased to the said extent i.e. Rs.4,500/- per month. Though it was sought to be canvassed by the learned Counsel for the appellant that the Tribunal has failed in not considering the future prospects of the deceased, I am not convinced with the argument so advanced. As has been held by Division Bench of this Court in the case of New India Assurance Co. Ltd. Vs. Smt.Alpa Rajesh Shah and others ( 2014 (2) Mh.L.J.

17), in absence of specific pleading and positive evidence in that regard, showing chances of future prospects, as of right, the same cannot be claimed and cannot be considered. Learned Counsel for the Insurance Company also relied upon the judgment of the Honourable Apex Court in the case of Chikkamma and Anr. Vs. Parvathamma and Anr. in Civil Appeal No.

No.5587 of 2016), decided on 28th February, 2017, wherein, in paragraph no.9 of the judgment, following observations are made by the Honourable Apex Court:

"9.

Taking into account the fact that the deceased was a self employed person and also as the question with regard to award of future prospects of a self employed person is presently pending before a larger Bench of this Court and as some enhancement of compensation has already been made by us, we are of the view that in the facts of the present case, the claim for future prospects ought not to be gone into by us. The said claim, therefore, is refused. "

In view of the observations made by the Division Bench of this Court in the case of Alpa Rajesh Shah, cited supra, and observations as above made by the Honourable Apex court, the claim for future prospects is not gone into by me. 6.

In so far as deduction of one third of the amount of total income of the deceased while determining the amount of dependency compensation is concerned, the Tribunal seems to have erred in not considering the fact that the number of dependents on the income of the deceased was more than three and, in such circumstances, only one fourth amount of his total income was liable to be deducted towards his personal expenses. To that extent, the amount of compensation needs to be enhanced. As noted earlier, the deceased was earning monthly salary to the tune of Rs.4,500/- which comes to Rs.54,000/- per annum. Deducting one fourth of the said

amount from the said gross income and multiplying the said amount by 15, which is the appropriate multiplier in the present case, the amount of dependency compensation comes to Rs.6,07,500/-.

I hold the applicants entitled for the said amount under the head of dependency compensation. I am further convinced that the Tribunal has erred in not awarding any amount to the claimants towards the head of loss of consortium and in awarding a meager sum of Rs.10,000/- towards loss of estate. I deem it appropriate to award consolidated sum of Rs.2,00,000/- under the said heads to the claimants. The Tribunal has already awarded a sum of Rs.15,000/- towards funeral expenses and Rs.55,000/- towards medical and transport expenses. The appellants claimants are, thus, held entitled to Rs.8,77,500/- which, according to me, is just and fair compensation payable to the claimants. The impugned award stands modified to the aforesaid extent. The appellants are entitled to the interest at the rate of 9 per cent per annum on the enhanced amount of compensation from the date of filing of the Claim Petition till realization. The Appeal is allowed in the aforesaid terms. No order as to costs. Deficit Court Fees, if any, be recovered from the claimants.

( P.R. BORA, J. ) ...

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