Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 337 (BOM)

Asha v. New India Assurance Co. Ltd.

2019-02-04

ARUN D.UPADHYE

body2019
JUDGMENT Arun D. Upadhye, J. - The appellants have filed this appeal under Section 173 of the Motor Vehicles Act. 1988 challenging the Judgment and award dated 08/01/2008 passed by the Member, Motor Accident Claims Tribunal, Akola in Claim Petition No.73/2005. 2. By the impugned Judgment and award, the learned Tribunal has granted compensation of Rs. 8,23,667/with interest @ 7.5 % per annum from the date of application. 3. This appeal was admitted on 01/08/2008 and waiting for its turn for final hearing. Today, the matter is called out for final hearing. 4. I have heard Shri Vyas, learned counsel for the appellants and Shri Patil, learned counsel for respondent No.1, at length. 5. Shri Vyas, learned counsel for the appellants has submitted that the appellants are entitled for conventional amount. However, the learned Tribunal has granted meagre one and therefore, he submitted that the said amount be enhanced to Rs. 15,000/as funeral expenses, Rs. 40,000/as consortium and Rs. 15,000/for loss of estate. He also submitted that in view of ratio laid down in the case of National Insurance Company Limited v. Pranay Sethi and others, reported in 2017 (13) Scale 12 , the appellants are entitled for amount of Rs. 15,000/for loss of estate, Rs. 40,000/for loss of consortium and Rs. 15,000/for funeral expenses. The appeal, therefore, be allowed. 6. Shri Patil, learned counsel, however conceded that so far as increase in conventional compensation but submitted that the appellants are not entitled for enhancement of the compensation for future prospect, as there is no evidence to that effect adduced by the appellants. Necessary orders be passed in the appeal. 7. Considering the submissions of both the sides, I have gone through the impugned Judgment and award as well as material placed on record. From perusal of the same, it appears that the appellants have filed petition under Section 166 of the Motor Vehicles Act for grant of compensation on account of death of Ashokappa Khande, who died in an accident on 31/01/2005 in motor accident. The appellants have contended that on fateful day, the deceased was travelling in the goods vehicle i.e. Tata407 bearing Registration No.MH 28B6539 from Pimpalgaon Kale to Akola. The Respondent No.2 - Pradip Khade was the owner of the said vehicle and the said vehicle was insured with respondent No. 1 Insurance Company, at the relevant time. The appellants have contended that on fateful day, the deceased was travelling in the goods vehicle i.e. Tata407 bearing Registration No.MH 28B6539 from Pimpalgaon Kale to Akola. The Respondent No.2 - Pradip Khade was the owner of the said vehicle and the said vehicle was insured with respondent No. 1 Insurance Company, at the relevant time. According to them, the driver of the vehicle was rash and negligent while driving the vehicle and caused accident of the said vehicle and the deceased succumbed to the injuries. 8. The appellants further contended that the deceased was cultivating agricultural land and earning Rs. 25,000/per year. He was th sole earning member of the family and the appellants were dependent upon him and therefore, claimed compensation to the tune of Rs. 15,00,000/. 9. The respondent No.1 - Insurance Company resisted the claim by filing written statement vide Exh.19 and contended that the vehicle in question was not involved in the accident and therefore, Insurance Company is not liable to pay compensation. It is further contended that the deceased was fare payee passenger and therefore, Insurance Company is not responsible to pay compensation. It is further contended that the driver of the vehicle was not having effective and valid driving licence and lastly, it is submitted that the petition be dismissed. 10. The respondent No.2 by filing written statement vide Exh.20 has contended that the driver was not rash and negligent while driving the vehicle and denied the contention made in the application. According to him, the vehicle was insured with respondent No.1 and Insurance Policy was valid from 02/12/2004 to 01/12/2005. According to him, accident took place within the validity of the policy period and therefore, respondent No.1 is liable to pay compensation. 11. After recording the evidence in the matter and hearing both the sides, the learned Tribunal has passed the impugned Judgment and award and granted compensation, as stated above. 12. From the above facts and circumstances of the case, the following points arise for my consideration. I record the findings thereon with reasons as under : Issues Findings 1. Whether the appellants/claimants are entitled for enhanced compensation ? Yes 2. What order ? As per final order. Considering the submissions of both the sides and after perusal of the impugned order, one thing is clear that the compensation granted towards conventional heads, it is meagre one. I record the findings thereon with reasons as under : Issues Findings 1. Whether the appellants/claimants are entitled for enhanced compensation ? Yes 2. What order ? As per final order. Considering the submissions of both the sides and after perusal of the impugned order, one thing is clear that the compensation granted towards conventional heads, it is meagre one. So far as funeral expenses are concerned, claimants are entitled for Rs. 15,000/and therefore, same are enhanced from Rs. 2,000/to Rs. 15,000/. As regards the loss of estate is concerned, the claimants are entitled for Rs. 15,000/. Therefore, the enhancement from Rs. 5,000/to Rs. 15,000/. As regards the consortium amount is concerned, the claimants are entitled for Rs. 40,000/. The enhancement is made from Rs. 10,000/to Rs. 40,000/. The learned counsel for respondent No.1 has conceded the enhancement and therefore, the appellants are entitled for conventional compensation of Rs. 70,000/for the above three heads. 13. The learned Tribunal has granted only Rs. 17,000/for the above head. Therefore, enhancement is Rs. 53,000/so far as appellants are entitled for the same. 14. As regards future prospect is concerned, the learned Tribunal has held that the income of the deceased was Rs. 1,10,000/per year and after deducting /rd share and by applying multiplier of 11, arrived at a conclusion that total income of the deceased would be Rs. 12,10,000/. After deducting /rd share, the learned Tribunal has granted compensation of Rs. 8,06,667/. There is no evidence to show that the deceased would earn more in future and therefore, no question arises for considering the future prospect of the earning. The deceased was agriculturist and he was not a salaried person and therefore, he is not entitled for future prospect. 15. The submission putforth on behalf of the appellants, therefore, cannot be considered. After considering the submissions of both the sides, the appellants are entitled for enhanced compensation of Rs. 53,000/only, in addition to earlier compensation granted to them by the learned Tribunal. Hence, I answer Point No.1 accordingly and proceed to pass the following order. ORDER I. The appeal is partly allowed. II. The appellants/claimants are entitled for enhanced compensation of Rs. 53,000/with interest @ 7.5 % per annum from the date of application, in addition to the compensation already granted to them. III. The respondent Nos.1 and 2 are jointly and severally liable to pay the said amount to the appellants. IV. ORDER I. The appeal is partly allowed. II. The appellants/claimants are entitled for enhanced compensation of Rs. 53,000/with interest @ 7.5 % per annum from the date of application, in addition to the compensation already granted to them. III. The respondent Nos.1 and 2 are jointly and severally liable to pay the said amount to the appellants. IV. The impugned Judgment and award is modified accordingly. V. No order as to costs.