Sunanda Anand Uplanchewar v. Jogindarsingh Guljarsingh Khaira And ANR

2024:BHC-AUG:19265 {1}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD FIRST APPEAL NO. 2560 OF 2016 Sunanda W/o Anand Uplanchewar Age- 48 years, Occ. Household, R/o. 107, Mangalwar Peth, Behind Kamala Devi Hospital Sidhi Balaji Heights, Flat No. 7, 3rd Floor, Pune-11.

....APPELLANT [Orig. Claimant]

VERSUS

1.

Jogindarsingh Guljarsingh Khaira Age- Major, Occ- Business, R/o. Dashmesh Nagar, Nanded, Tq. & Dist. Nanded.

2.

The Branch Manager, United India Insurance Co. Ltd.

Dayawan Complex, Station Road, Parbhani, Tq. & Dist. Parbhani.

.....RESPONDENTS [Orig. Respondents] .....

Mr. P.N. Kalani, Advocate for appellant Mr. P.B. Kulkarni h/f Mr. N.B. Narwadkar, Advocate for respondent No. 1 Mr. A.B. Gatne, Advocate for respondent No. 2 .......

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 20th AUGUST, 2024 ORAL JUDGMENT:

1.

Admit. Heard finally.

2.

By this appeal, claimant challenges judgment and award passed by Motor Accident Claims Tribunal, Parbhani, in

{2} Motor Accident Claim Petition No. 265 of 2013. 3.

On 05.03.2013, claimant along with husband Anand Uplanchewar, daughter Ankita (deceased), brother Ankush, sister-in-law Shubhangi, brother-in-law Tanju and niece Shweta were proceeding to Parbhani for the program of Dohal-jewan of Uma Uplanchewar in Omni car bearing registration No. MH-12GR-6584. Anand was driving the car. At about, 6.00 to 6.30 am, when their car reached near Panhera shivar on Pathri-Parbhani road, at that time, one truck bearing registration No. MH-26-H6313 came from opposite direction in rash and negligent manner and gave severe dash to the car of claimants. Due to the accident, Anand, Ankush and Ankita and one more inmate in the car expired on the spot and rest of the occupants of the car were injured.

4.

Claimant filed Motor Accident Claim Petition No. 265/2013 claiming compensation of Rs. 26,87,326/-. The Tribunal after hearing the parties partly allowed the claim by awarding compensation of Rs. 13,31,000/- along with 7.5% interest per annum. Claimant is aggrieved by non grant of compensation under the head, 'future prospects' by the Tribunal.

{3} 5.

Heard learned advocate for claimant, learned advocate for respondent No. 1 and learned advocate for respondent No. 2. Perused the record.

6.

Learned advocate for claimant submits that the Tribunal has erred in denying compensation under the head future prospects. In view of decision in Smt. Sarla Verma and others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680, claimant is entitled for 50% addition towards future prospects.

7.

Learned advocate for insurance company, on the other hand, strenuously opposed the said submission contending that deceased was on fixed salary and there is no evidence to show that there was possible increase of salary in future and therefore, Tribunal has rightly denied compensation under the head future prospects by relying on decision of this Court in New India Insurance Co. Vs. Alpa Rajesh Shah, 2013 C.J. (Bom) 1623. In the alternate, he submits that, if at all this Court is inclined to grant compensation under the head future prospects, claimant would be entitled for 40% addition and not 50%.

{4} 8.

Learned advocate for respondent No. 1/owner opposed the claim contending that insurance company is liable to pay the compensation and not the owner.

9.

Perusal of record shows that accidental death of deceased is not in dispute. Claimant Sunanda is the eye witness to the accident. The Tribunal by relying on the version of claimant Sunanda and police papers has rightly held that accident has occurred due to rash and negligent driving of the truck.

10.

Ankita daughter of claimant aged 25 years expired in the accident. She was serving at Parvir Wellness Pvt. Ltd. and was drawing salary of Rs. 13,287/- per month. To prove her salary, PW 2 Jitendra Sanatani is examined who deposed that deceased was serving as stylist in their parlor. She was drawing salary of Rs. 12,000/-. He proved salary certificate on record. 11.

The Tribunal held net salary of deceased Rs. 12,000/- and annual income at Rs. 1,44,000/-. By deducting 50% amount towards personal expenses, Tribunal has assessed annual dependency at Rs. 72,000/-. The Tribunal further observed that "as there is no evidence brought on record in respect of future

{5} prospectus in view of principle laid down in New India Insurance Co. Vs. Alpa Rajesh Shah (cited supra) claim in respect of future prospectus cannot be considered."

12.

The Tribunal erred in placing reliance on the above ratio ignoring the fact that in this case deceased was in service and was drawing salary and she was not self-employed. The Tribunal has also ignored the ratio in Pranay Sethi (supra) that; "58.

------------. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept."

13.

Reliance is placed on paragraph 59.3 of Pranay Sethi (supra) by learned advocate for insurance company to contend that claimant may be entitled for 40% future prospects. Para 59.3 reads thus:

"59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax."

{6} 14.

Para 59.4 of this judgment reads thus:

"59.4.

In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 t0 50 years and 10% where the deceased was between the age of 50 t0 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

15.

In view of observations in the above quoted paragraph, since deceased was on a fixed salary, an addition of 40% of the established income needs to be made as the deceased was 25 years old. The established income of the deceased is Rs. 12,000/- per month and annual income is Rs. 1,44,000/-, in which 40% addition of Rs. 57,600/- needs to be made towards future prospects. Claimant is therefore entitled for following compensation.

Sr. No.

Heads Amount (Rs.) Notional Income Rs. 12,000+ future prospects @ 40% i.e.

4,800/- 16,800/- Annual Notional Income 16800 x 12 2,01,600/- Less 1⁄2 Deduction i.e. Rs.

(201600 - 1,00,800) 1,00,800/- Annual Notional Income Multiplied by multiplier of 18 18,14,400/-

{7} (1,00,800 x 18) Non Pecuniary damages awarded by Tribunal:

i)Loss of Consortium and love and affection- 25,000/- ii) Funeral Expenses- 10,000/- 35,000/- Total Compensation needs to be awarded 18,49,400/- Compensation awarded by Tribunal 13,31,000/- Total Enhanced compensation (18,49,400 - 13,31,000) 5,18,400/- 16.

In the result, following order:

ORDER

(I) First Appeal is partly allowed with proportionate costs. (II) Impugned judgment and award dated 29.12.2015, passed by Chairman, Motor Accident Claims Tribunal, Parbhani in M.A.C.P. No. 265/2013 is hereby modified. (III) Respondents No. 1 and 2 are jointly and severally liable to pay enhanced compensation of Rs. 5,18,400/- to the claimant.

(IV) Claimant shall be entitled for interest @ 7.5 per annum on the enhanced compensation from the date of filing of claim till realization.

V) Insurance Company shall deposit enhanced compensation along with accrued interest in the Tribunal within 12 weeks from the date of uploading of this judgment.

{8} (VI) Claimant to pay additional Court fees on enhanced amount as per rules.

[NITIN B. SURYAWANSHI, J.]