Partly allowed

Ashwini Anil More and Ors. v. Shankar Kundlik Bhange and Anr.

Bombay HC14 Aug 2012FA/3178/2011

Case brief

AI extract

What is this about?

In a motor accident claim appeal, the High Court increased the compensation awarded by the Tribunal by 2,07,000/- for the loss of dependency of eight claimants, based on enhanced income estimation and Tribunal's negligence attribution.

What did the court decide?

Awarded Rs. 2,07,000/- additional compensation to claimants plus interest at 7.5% per annum from date of petition.

Ashwini Anil More and Ors. Vs Shankar Kundlik Bhange… — Motor Accident Claims | Bombay HC (2012)

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1 fa 3178.11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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FIRST APPEAL NO. 3178 OF 2011

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Smt. Ashwini W/o Anil More, Age : 37 Years, Occu. : Household,

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Kum. Aruna D/o Anil More, Age : 16 Years, Occu. : Education,

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Kum. Archana D/o Anil More, Age : 14 Years, Occu. : Education,

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Kum. Annapurna D/o Anil More, Age : 12 Years, Occu. : Education.

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Kum. Adnyan D/o Anil More, Age : 10 Years, Occu. : Education,

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Anmol S/o Anil More, Age : 8 Years, Occu. : Education,

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Amrut S/o Anil More, Age : 4 Years, Occu. : Nil

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(Claimant Nos. 2 to 7 are minors U/G of their mother Appellant No. 1)

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Patharabai W/o Gopichand More, Age : 67 Years, Occu. : Household.

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All R/o Jalkot, Tq. Tuljapur, Dist. Osmanabad. .. Appellants

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2 fa 3178.11

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Versus

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Shankar S/o Kundlik Bhange, Age : Major, Occu. : Business, R/o At Post Madha, Tq. Madha, Dist. Solapur.

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The Divisional Manager, The United India Insurance Co. Ltd., Through Branch Manager, United India Insurance Co. Ltd. Minakshi Building Near S.B.I. Osmanabad, Dist. Osmanabad. .. Respondents

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Shri P. S. Chavan, Advocate for Appellants. Shri S. S. Rathi, Advocate for the Respondent No. 2. The Respondent No. 1 served.

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CORAM : S. V. GANGAPURWALA, J. DATE : 14TH AUGUST, 2012.

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ORAL JUDGMENT :

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. The claimants had filed petition U/Sec. 166 of the Motor Vehicles Act on account of death of deceased Anil, who died in an accident with the truck owned by the present respondent No. 1 and insured by the respondent No. 2. The Tribunal partly allowed the claim petition. Being dissatisfied by the amount of compensation awarded, the claimants have filed the present appeal.

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3 fa 3178.11

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Shri Chavan, the learned counsel for appellants submits that there is record to show that the deceased owned buffaloes and cows for running the milk business. The receipts from the market committee are produced on record. The learned counsel further contends that the deceased was also doing fruit business and was running the business in the name and style as Satish Fruits. There are receipts to that effect produced on record. But the Tribunal has not considered the same. The Tribunal has also erroneously observed that the claimants admitted that the fruit business is going on. In fact, the said suggestion was denied in the cross examination. The said observation is perverse. According to the learned counsel from all the above said business the deceased was earning Rs. 10,000/- per month. The said amount claimed was reasonable and proper.

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Shri Rathi, the learned counsel for the respondent No. 2 submits that, there is no actual proof that the deceased was doing the milk and fruit business. Even otherwise the buffaloes and cows are still with the claimants. There is no loss of business. In absence of any proof, the Tribunal has rightly considered the income at the rate of Rs. 3,000/- per month. No fault can be found with the same.

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4 fa 3178.11

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With the assistance of learned counsel I have gone through the judgment and record and proceedings. This Court vide order dated 12.12.2011 had put the parties to notice that the appeal would be disposed of finally at the stage of admission. As such, the appeal has been taken up for final hearing. The only issue is with regard to quantum of compensation.

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The receipts on record issued by the market committee show that the deceased had purchased the buffaloes and cows. However, the said receipts are not exhibited on the ground that they are not proved. The claimants have also relied on the oral evidence regarding the deceased doing business of fruit and have also produced on record the receipts. The suggestion given by the respondent to the claimant while conducting cross examination is that the business of fruit and milk is still going on. There is no absolute denial that the deceased was not doing the business of fruits and milk. At the same time, there is no actual proof of income produced by the claimants. In absence of actual proof of income, the Tribunal would only have to take in to account attending circumstances to prove the dependency involved. It is also not expected from a person earning about 70,000/- to 80,000/- per year to maintain a record as no income tax was payable by a person earning less than Rs. 1,50,000/- per year.

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5 fa 3178.11

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Considering all the above aspects and the fact that there is record to presume that the deceased was doing the business of fruits and milk, I would consider the income of deceased at Rs. 5,000/- per month. There are about eight claimants. In view of the judgment of the Apex Court in a case of Smt. Sarla Verma and ors. Vs. Delhi Transport Corporation and anr. reported in AIR 2009 S.C. 3104 , the deduction for personal expenses would be 1/5th. As such the loss of dependency would be Rs. 4,000/- per month. The Tribunal has applied the multiplier of 15, which is legal and proper. It has also been held by the Tribunal that the deceased would be attributed negligence of 40%. There is evidence in that regard. The said observation is also reasonable and plausible.

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Considering the above facts, the total compensation which the appellants would be entitled considering the income of deceased at Rs. 5,000/- per month and deduction towards personal expenses as 1/5th would be Rs. 2,07,000/- in addition to Rs. 2,25,000/- awarded by the Tribunal. In the result the judgment and award of the Tribunal is modified. It is held that the claimant Nos. 1 to 8 are entitled to Rs. 2,07,000/- in addition to Rs. 2,25,000/- awarded by the Tribunal as compensation

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6 fa 3178.11

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including the NFL amount from the original respondent Nos. 1 and 2. The original respondent Nos. 1 and 2 shall jointly and severally pay the additional amount of Rs. 2,07,000/- with future interest at the rate of 7.5% per annum from the date of petition till its realization. The first appeal accordingly is partly allowed and disposed of.

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Sd/[ S. V. GANGAPURWALA, J. ]

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bsb/Aug. 12

Ashwini Anil More and Ors. v. Shankar Kundlik Bhange and Anr.

Case brief

What is this about?

What did the court decide?

Ashwini Anil More and Ors. v. Shankar Kundlik Bhange and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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