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2022 DIGILAW 861 (BOM)

Sunil v. Govind

2022-03-23

SHRIKANT D.KULKARNI

body2022
JUDGMENT Shrikant D. Kulkarni, J. - This appeal is directed against the impugned Judgment and award dated 2.12.2006 passed in M.a.C.P.no.33 of 1999 by the Chairman, Motor accident Claims Tribunal at ahmednagar. 2. Brief facts necessary for deciding this appeal are as under : (i) Ganesh Govind Shelar was son of claimants/respondents no.1 and 2. He was auto-rickshaw driver and was earning Rs.6,000/- per month. On 9.10.1998 at about 1.45 a.m., deceased was coming along with his friends from Sanjay Dhaba on Nagar-Pune road towards Kedgaon by driving his Rikshaw. The jeep bearing registration No.MH-12-B-5330 owned by the present appellant came from opposite direction driven in a rash and negligent manner and gave dash to the auto-rickshaw. Ganesh sustained serious injuries. He was immediately shifted to Civil Hospital, ahmednagar. However, he succumbed to injuries. (ii) The parents of the deceased had filed claim petition under Section 166 of the Motor Vehicles act, 1988 against the owner, driver and insurer of the offending vehicle - jeep. The Chairman, M.a.C.T., ahmednagar, after considering the rival pleadings of the parties, evidence on record and argument advanced on behalf of both the sides was pleased to award compensation of Rs.1,50,000/-(inclusive of NFL amount) with interest @ 9% per annum from the date of filing of claim petition till realisation of the amount. Respondent no.3/Insurance Company was exonerated from the liability. (iii) Feeling aggrieved by the impugned judgment and award passed by the Chairman, M.a.C.T., ahmednagar, owner of the offending vehicle has preferred this appeal by taking aid of Section 173 of Motor Vehicle act, 1988. 3. Heard Ms R.V. Sundale holding for Mrs C.S. Deshmukh, learned advocate for appellant, Mr L.V. Sangeet, learned advocate for respondents no.1 and 2 and Mr S.V. Kulkarni, learned advocate for respondent no.4. The appeal has already been dismissed against respondent no.3/driver of offending vehicle. 4. Ms R.V. Sundale, learned advocate for the appellant vehemently submitted that the tribunal has awarded exorbitant compensation to the parents of the deceased though there was no evidence focusing light on the income of the deceased. She further pointed out that the tribunal has also committed an error in making calculations, more particularly deductions while determining the income of the deceased. Ms Sundale, learned advocate submitted that the deceased was bachelor at the time of accident. Therefore, one half deduction from the income of the deceased was necessary. She further pointed out that the tribunal has also committed an error in making calculations, more particularly deductions while determining the income of the deceased. Ms Sundale, learned advocate submitted that the deceased was bachelor at the time of accident. Therefore, one half deduction from the income of the deceased was necessary. The tribunal has deducted 1/3rd from the salary of the deceased which is incorrect. She submitted that it was the responsibility of the finance company to obtain the insurance policy of the vehicle/jeep. The appellant/owner of the vehicle is not accountable for their mistake. She has placed her reliance on the decision of Honourable Supreme Court in case of Smt. Sarla Verma and Ors. V. Delhi Transport Corporation and anr., reported in aIR 2009 SC 3104 on the point of deduction. She, therefore, urged to modify the impugned judgment and award passed by the tribunal. 5. Mr L.V. Sangeet, learned advocate for respondents no.1 and 2/original claimants supported to the findings recorded by the tribunal. He submitted that there was no error on the part of the tribunal while making calculations and awarding the compensation. The parents had lost their sole earning member. The tribunal has rightly awarded the compensation of Rs.1,50,000/-. He submitted that there is no merit in the appeal. 6. Mr S.V. Kulkarni, learned advocate for respondent no.4/United India Insurance Company Ltd. submitted that on the date of accident, the offending vehicle/jeep was not insured. The tribunal has rightly exonerated the Insurance Company. 7. I have considered the submissions made by learned advocates appearing for the respective parties. Perused the impugned judgment and award. On going through the impugned judgment and award, more particularly paragraph 8 page 21, it is noticed that the tribunal has deducted 1/3rd amount from the salary of the deceased while making calculations of compensation. admittedly, the deceased was bachelor at the time of accident. In view of landmark decision of Honourble Supreme Court in case of Smt. Sarla Verma and Ors. V. Delhi Transport Corporation and anr. (supra), where the deceased is a bachelor, one half needs to be deducted for personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. I found merit in the submissions of Ms Sundale, learned advocate for the appellant regarding improper deduction from the salary of the deceased. (supra), where the deceased is a bachelor, one half needs to be deducted for personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. I found merit in the submissions of Ms Sundale, learned advocate for the appellant regarding improper deduction from the salary of the deceased. The tribunal has committed manifest error in deducting 1/3rd towards personal expenses of the deceased and it should have been one half deduction as per the decision of the Honourable Supreme Court in case of Smt. Sarla Verma and Ors. V. Delhi Transport Corporation and anr. (supra). 8. So far as income of the deceased is concerned, there is no iota of evidence. However, the tribunal has rightly considered this aspect. The deceased was plying autorickshaw and might be earning Rs.70/- per day, i.e. Rs.2,100/- per month by way of guesswork. That guesswork cannot be said to be improper and illogical. It cannot be said to be on higher side. 9. another point regarding obtaining insurance policy of the offending vehicle is concerned, obviously, it is the duty of the owner of the vehicle to obtain the insurance policy. The finance company cannot be fastened with the liability to obtain the insurance policy by making payment of necessary premium to the Insurance Company. It is admitted position that on the date of accident, the offending vehicle/jeep bearing registration No.MH-12-B-5330 was not insured with respondent no.4/Insurance Company. Certainly, respondent no.4/Insurance Company cannot be fastened with the liability to pay the compensation. The tribunal has rightly absolved the Insurance Company from the liability. 10. Having regard to the above reasons and discussion, the compensation is reassessed as under : (i) Income of the deceased @ Rs.2,100/- per month. (ii) One half is required to be deducted from the monthly salary and after deduction, net salary comes to Rs.1,050/-. (iii) The yearly dependency of the claimants comes to Rs.12,600/- per year. (iv) Multiplier of 17 needs to be applied having regard to the age of the deceased. (v) Thus, the total compensation payable to the claimants worked out to be Rs.2,14,200/- (Rs.12,600/- per year x 17). (vi) Loss of love, affection, funeral expenses etc. Rs.14,400/- (vii) The total compensation comes to Rs.2,28,600/- including the loss of love and affection and funeral expenses. The deceased was held liable to the extent of 50% by way of contributory negligence. (v) Thus, the total compensation payable to the claimants worked out to be Rs.2,14,200/- (Rs.12,600/- per year x 17). (vi) Loss of love, affection, funeral expenses etc. Rs.14,400/- (vii) The total compensation comes to Rs.2,28,600/- including the loss of love and affection and funeral expenses. The deceased was held liable to the extent of 50% by way of contributory negligence. as such 50% needs to be deducted from the total compensation. Thus, claimants/respondents no.1 and 2 shall be entitled to get Rs.1,14,300/- along with interest @ 9% per annum from the date of filing of claim petition till its realisation in full. The appellant/owner of the vehicle is liable to pay the above determined compensation amount with interest to the claimants. ORDER (i) The appeal stands partly allowed. (ii) The judgment and award dated 2.12.2006 passed in M.a.C.P. No.33 of 1999 by the Chairman, Motor accident Claims Tribunal, ahmednagar is modified as under : (iii) The appellant shall pay compensation of Rs.1,14,300/- (Rs.One lakh fourteen thousand and three hundred only) (inclusive of NFL amount) to the claimants/respondents no.1 and 2 with interest @ 9% per annum from the date of filing of claim petition till realisation of the amount in full. (iv) The amount paid, if any by the appellant/owner of the vehicle shall be adjusted towards the compensation amount stated above. (v) The award be drawn up accordingly. (vi) The R & P be sent back to the tribunal. (vii) The First appeal is accordingly disposed of. (viii) No order as to costs.