Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 485 (BOM)

Mandakini w/o Babanrao Antre v. Sanjay s/o Jagannath Gadhe

2012-03-02

M.T.JOSHI

body2012
Judgment The present appeal is preferred by the original plaintiffs/claimants who had filed the petition under section 166 of the Motor Vehicles Act before the learned Motor Accident Claims Tribunal, Ahmednagar. 2. Deceased Babanrao met with an accidental death on 22nd November, 2011 while he was riding on a motorcycle from village Karajgaon towards Songaon by Nagar-Manmad road. The tempo bearing registration No.MTA-771 gave a dash to the motorcycle from the backside resulting in death of the deceased. The claimants i.e. widow, major son and daughter of the deceased claimed compensation of Rs. 8,00,000/-against the tempo owner as well as the Insurer i.e. the present respondents No.1 and 2, claiming that the tempo driver was rash and negligent in driving the tempo. 3. The respondent No.1 remained absent in the proceeding, and the Insurer defended the action. It was contended that the tempo driver was not rash or negligent in driving and the next contention is that the tempo driver was holding a license to drive light motor vehicle i.e. non-transport vehicle, while the tempo was a transport-vehicle; therefore, there was a breach of term and condition of the policy of Insurer and, therefore, was not liable to pay any compensation. 4. The appeal was heard earlier finally by the learned Single Judge of this Court on 10th March, 2010. The learned Judge has held that for breach of terms and conditions of the policy of insurance that the driver, shall hold valid and effective driving license, the Insurer would not be liable to pay the compensation. The judgment was challenged in Special Leave Petition (C) No.25798 of 2010 in the Supreme Court of India. The Supreme Court on 1st November, 2011 passed the following order. "ORDER Delay condoned. Leave granted. This appeal is directed against the judgment of the Bombay High Court, Aurangabad Bench whereby the appeal preferred by the appellants against the award of the Motor Accident Claims Tribunal, Ahmednagar was dismissed. One of the grounds on which the appellants have questioned the impugned judgment is that the High Court did not at all consider their plea for enhancement of the compensation awarded by the Tribunal." "Learned counsel appearing for respondent No.2 fairly conceded that the issue of compensation has not been considered by the High Court." "In view of the above, the appeal is allowed. The impugned judgment is set aside and the matter is remitted to the High Court for consideration of the claim made by the appellants for award of enhanced compensation." 5. In view of the above direction, the appeal is being re-heard. The learned counsel for the appellants as well as for respondent No.1 -the tempo owner, submits that since the Supreme Court has allowed the appeal and set aside the judgment passed by this Court, now the entire controversy in the appeal is open for argument. On the other hand, the learned counsel for the Insurer submits that the learned Single Judge in the judgment dated 10th March, 2010 dealt with only the aspect of liability of the Insurer and the question of quantum of the compensation was not considered. In that view of the matter, the Supreme Court has remitted the matter to this Court "for consideration of the claim made by the appellants for award of enhanced compensation." Therefore, according to the learned counsel, the ground of liability of the Insurer to pay the compensation now does not survive. 6. The learned counsel for the parties further took me through the evidence on record and the findings of the learned Chairman of the Tribunal on the point of quantum of the compensation. 7. On the basis of above material, following points arise for my determination (i) Whether the ground that the respondent No.2 -Insurer is liable to indemnify the respondent No.1 for payment of compensation survives in view of the direction of the Supreme Court ? (ii) Whether the compensation awarded by the learned Tribunal is just ? My answer to point No.(i) is in the negative and partly negative as regards the point No. (ii), as the compensation granted by the learned Tribunal needs to be enhanced for the reasons to follow. REASONS 8. The issue of liability of the Insurer in indemnifying the owner of the vehicle is now foreclosed, as the Supreme Court of India, in clear terms, has directed that the claim made by the appellants for enhanced compensation remains for consideration. The order of the Supreme Court reproduced supra is beyond any interpretation as put by the learned counsel for the appellants or respondent No.1. Therefore, the only question of quantum of compensation survives for consideration by this Court. 9. The order of the Supreme Court reproduced supra is beyond any interpretation as put by the learned counsel for the appellants or respondent No.1. Therefore, the only question of quantum of compensation survives for consideration by this Court. 9. As regards the compensation, it has become an admitted fact during trial that deceased Babanrao was working as a permanent teacher. The salary certificate proved at Exh-43 showed that for the month of November, 2001, the gross salary of the deceased was Rs. 9799/-per month. After deductions towards Provident Fund, L.I.C. subscription, repayment of loan and Professional Tax, etc., the carry-home salary was Rs. 4077/-per month. The learned Tribunal further took into consideration the statement of appellant No.1 -Smt. Mandakini in oral evidence that an amount of about Rs. 3000/-per month used to be brought by the deceased at home. The learned Tribunal, on the basis of ratio in "Asha and others vs. United India Insurance Company", reported in 2004 ACJ 448, observed that for determining the amount of compensation,the net salary of the deceased has to be considered. The learned Tribunal, however, failed to consider that the net salary of the deceased has to be arrived at after deduction of only statutory payments like Professional Tax, Income Tax from the gross salary. The subscription towards the Provident Fund, L.I.C., etc. are the savings and the same are required to be ignored. In that view of the matter, the salary certificate of the deceased would show that the net salary per month would come to Rs. 5831/-i.e. Rs. 69,972/-per annum. Besides this, the income from the 70 R agricultural land has been rightly assessed at Rs. 12,000/-per annum. Upon addition of the same, the total income of the deceased would come to Rs. 81,972/-per annum. The learned counsel for the appellants, therefore, submits that the total loss of income should be held at the same rate and upon deduction of 1/3rd towards personal expenses of the deceased, the loss of dependency, according to the learned counsel, would come to Rs. 54,648/-per annum. 10. The deceased was 49 years old at the time of his untimely death. Therefore, in view of the ratio in "Smt. Sarla Verma and others vs. Delhi Transport Corporation and another", reported in AIR 2009 S.C. 3104 , multiplier of 13 would be applicable and total amount of compensation would come to Rs. 7,10,424/-. 11. 54,648/-per annum. 10. The deceased was 49 years old at the time of his untimely death. Therefore, in view of the ratio in "Smt. Sarla Verma and others vs. Delhi Transport Corporation and another", reported in AIR 2009 S.C. 3104 , multiplier of 13 would be applicable and total amount of compensation would come to Rs. 7,10,424/-. 11. The learned Tribunal has awarded an amount of Rs. 28,000/-under various heads of non-pecuniary damages like loss of love and affection, pain and suffering, expenses for funeral including the expenses required for carrying the dead-body to the village of the deceased. The learned counsel for the appellants submits that the said compensation is just. In that view of the matter, the total compensation payable would come to Rs. 7,38,424/-. 12. The interest awarded by the learned Tribunal at rate of 7.5% per year from the date of application till the date of realization is also reasonable one. In the circumstances, the total compensation payable to the appellants including the compensation already awarded would come to Rs. 7,38,424/-with interest at rate of 7.5% per annum from the date of application i.e. 02-01-2002 till the date of realization, with proportionate cost of the appeal, to be paid by the Respondent No.1 only. 13. Taking into consideration the fact that the appellant No.1-Smt. Mandakini is widow, an amount of Rs.3,00,000/-(Rs. three lacs), including an amount of Rs.1,98,000/-as directed by the learned Tribunal, shall be paid in cash to her i.e. appellant No.1 and further the appellant Nos.2 and 3 being the major brothers of the deceased would be entitled to an amount of Rs.75,000/-each, to be paid in cash, as has been directed by the learned Tribunal. The rest of the amount including an amount of Rs.50,000/-, shall be kept in Fixed Deposit Receipt/s in name of appellant No.1 -Smt. Mandakini and rest of the amount shall be fixed in Fixed Deposit Receipt with any Nationalized Bank in the equal proportion in name of appellant Nos.2 and 3. The appeal is disposed of accordingly, with proportionate cost.