Partly allowed

Smt.Rekha Baburao Gaikwad and Another v. Shri. Ashok Baban Pawar and Others

Bombay HC26 Oct 2010FA/38/1996

Case brief

AI extract

What is this about?

The High Court allowed a partial appeal increasing compensation for death in a motor accident. The court set aside the Tribunal's 25% contributory negligence deduction based on the driver's criminal conviction, applied a multiplier of 9, and awarded additional compensation of Rs. 1,17,500 with 9% interest.

What did the court decide?

Appellants entitled to additional compensation of Rs. 1,17,500 with interest at 9% p.a. from 17th August 1990.

Smt.Rekha Baburao Gaikwad and Another Vs Shri. Ashok… — Motor Accident Claims | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION

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FIRST APPEAL NO.38 OF 1996

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1 Rekha Baburao Gaikwad

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2 Chabutai Baburao Gaikwad...Appellants

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Vs.

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1 Ashok Baban Pawar

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2 Baban Bapuji Pawar

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3 Chandrakant Baburao Gaikwad

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4 Suryakant Baburao Gaikwad

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5 Rajendra Baburao Gaikwad

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...Respondents

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Mr.V.S.Talkure for the appellants
None for the respondent

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CORAM :A.S.OKA,J.
 DATE : OCTOBER 26, 2010

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ORAL JUDGMENT :

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1 Heard the learned counsel for the appellants. The
appellants are the original claimant nos.4 and 5 in a
claim petition filed under the Motor Vehicles Act,1988.
The claim petition was filed for claiming compensation on
account of death of one Baburao in a motor accident which
occurred on 21st March 1990. Third to fifth respondents
are the other claimants. The first respondent is the
driver of the offending vehicle and the second respondent
is the owner of the offending vehicle. Third to fifth
respondents are the sons of the deceased. The first
appellant is unmarried daughter of the deceased and the
second appellant is the widow of the deceased.

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2The case made out in the claim petition is that the
deceased was proceeding from Sastewadi to Phaltan on his

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motor cycle in a moderate speed. When he reached Gosavi
Vasti, near brick furnace, a jeep owned by the second
respondent and driven by the first respondent came from
the opposite side. It is alleged that the first
respondent was driving the jeep in a rash and negligent
manner and had brought the jeep on its wrong side. It is
alleged that though the deceased tried to avoid the
accident, the first respondent could not control his
vehicle and gave a dash on the left hand side of the
motor cycle. The deceased sustained head injuries with
fracture of Maxilla. The deceased was admitted to P.H.C
at Phaltan and later on transferred to Ruby Hall Clinic,
Pune on 21st March 1990. The deceased expired in the
hospital on 18th June 1990. A claim of Rs.3 lacs was
made in the claim petition.

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3 The claim petition was contested by the first and
second respondents. It appears that the offending jeep
was not insured. The first and second respondents
contended that the deceased was following the truck and
was ultimately trying to overtake it. It was alleged that
while overtaking the truck, the deceased noticed the jeep
and got confused. It is stated that in order to avoid the
accident, the first respondent took the jeep to its right
side i.e. on the northern side of the road and therefore,
the accident took place. Thus, allegation is that entire
negligence was of the deceased.

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4 The tribunal after noting that the first respondent
was convicted for rash and negligent driving came to the
conclusion that the deceased came on its wrong side and
therefore, held that the contribution of the deceased was
to the extent of 25%. The medical expenses in the sum of
Rs.68, 000/- were granted on the basis of the medical
bills produced. By taking the dependency at Rs.500/- p.m,

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the Tribunal applied multiplier of 5 and granted a sum of
Rs.30, 000/-. On account of loss of consortium, the
Tribunal has granted a sum of Rs.5000/-. Thus, total
compensation of Rs.1, 10,000/- was granted. After
deducting 25%, compensation of Rs.82, 500/- was
granted.

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5The learned counsel for the appellant has taken the
Court through record. He pointed out that the first
respondent was convicted for the offence punishable under
section 304A of the Indian Penal Code and therefore,
there was no occasion for the Tribunal to hold that the
deceased had also contributed to the accident. He
submitted that the multiplier of 5 adopted by the
tribunal is on the lower side. He submitted that the
dependency taken at Rs.500/- p.m is also on the lower
side considering the fact that the deceased was drawing a
salary of Rs.1625/- p.m. None appears for the
respondents.

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6I have carefully considered the submissions. The
first issue is regarding the finding of contributory
negligence against the first respondent. Perusal of the
record shows that at Exhibit90, a copy of the Judgment
and Order dated 4th June 1991 passed by the learned
Judicial Magistrate (First Class) is placed on record.
The said Judgment and order shows that the first
respondent was convicted for the offences punishable
under section 304-A, 327, 427,279 of the Indian Penal
Code. In appeal preferred by the first respondent
conviction of the first respondent for the offence
punishable under section 304-A of the Indian Penal Code
and section 66(1) of the Motor Vehicles Act was upheld.

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7In view of these factual aspects, the finding of the

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tribunal that the deceased has also contributed to the
accident cannot be sustained and same will have to be
set aside.

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8The age of the deceased was 57 years at the time of
accident. In view of the decision of the Apex Court in
case of Sarla Verma (Smt.) and others vs. Delhi
Transport Corporation and another [(2009) 6 SCC
121], multiplier of 9 ought to have been applied.
The tribunal has applied multiplier of 5. It must
be noted here that the third to fifth respondents
were major and were gainfully employed on the date
of filing the claim petition. Accordingly, the
dependency will have to be considered. The income
of the deceased was Rs.1625/- p.m which was the
salary drawn by him from the Government service.
1/3rd amount will have to be deducted on account of
personal expenditure of the deceased. After
deducting 1/3rd amount, yearly dependency comes to
Rs.13,000/-. Applying multiplier of 9, the
compensation amount comes to Rs.1,17,000/- to which
usual amount of Rs.15,000/- towards loss of
consortium, funeral expenses etc will have to be
added. A sum of Rs.68,000/- has been granted on
account of medical expenses. The total comes to Rs.
2,00,000/-. The tribunal has granted compensation
of Rs.82,500/- and therefore, the appellants will be
entitled to additional compensation of Rs.
1,17,500/-.

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9 The claim petition was filed in the year 1990
and was decided in the year 1994. Subsequently, the
rates of interest offered by the nationalized banks

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have considerably gone down. Hence, on the
additional compensation, interest at the rate of 9%
will have to be granted. Hence, the appeal must
succeed in part.

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7 Hence, I pass the following order:

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i) In addition to the compensation awarded under the impugned Judgment and Award, the claimants will be entitled to compensation of Rs.1,17,500/- with interest thereon at the rate of 9% p.a from 17^th August 1990 till the date of realization or deposit of the amount with the Tribunal.

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ii)Time of four months is granted to the first and second respondent to deposit the additional compensation amount.

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iii) The appellants will be entitled to proportionate costs of the appeal from the 1^st and 2^nd respondents.

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iv)After the amount is deposited, the Tribunal will
passanappropriateorderregarding
disbursement/distribution of the compensation
amount.

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 JUDGE

Smt.Rekha Baburao Gaikwad and Another v. Shri. Ashok Baban Pawar and Others

Case brief

What is this about?

What did the court decide?

Smt.Rekha Baburao Gaikwad and Another v. Shri. Ashok Baban Pawar and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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