Back
IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari V.V. Vaze, JJ.
Padmadevi Shankarrao Jadhav (Smt.) others .... Appellants.
Versus
Kabalsing Garmilsing Sardarji others .... Respondents.
First Appeal No. 709 of 1982, decided on 14-11-1984.
Advocates appeared :
V.A. Thorat, for appellants.
G.A. Trivedi, for respondent Nos. 2 3.
MOTOR VEHICLES ACT - SECTION 110-D - NEGLIGENCE - COMPENSATION - QUANTUM - INTEREST - DEDUCTION - INSURANCE COMPANY'S LIABILITY - APPORTIONMENT OF COMPENSATION - HEADMASTER'S DEATH IN ACCIDENT - FAMILY PENSION, GRATUITY, PROVIDENT FUND - CALCULATION OF COMPENSATION - COURT'S DISCRETION - CROSS-OBJECTION - ORDER 41, RULE 22, 33 CPC - APPLICABILITY - LIMITATION - COURT FEES ACT - RELEVANCE - FINAL DECISION - AWARD ENHANCED FROM RS. 39,600/- TO RS. 1,00,000/- WITH INTEREST @ 6% P.A. FROM DATE OF APPLICATION TILL REALIZATION.
Fact of the Case:
Deceased Shankarrao, a headmaster, died in a road accident caused by the negligent driving of a truck. His widow and minor children filed a claim for compensation under the Motor Vehicles Act.
Finding of the Court:
The Tribunal found the truck driver negligent and awarded compensation of Rs. 39,600/- to the minor children, dismissing the widow's claim. The claimants appealed, challenging the quantum of compensation and the dismissal of the widow's claim.
Issues: 1. Whether the finding of negligence against the truck driver was perverse and should be challenged by the opponent in the absence of a cross-objection? 2. Whether the Tribunal erred in deducting the amounts received by the widow towards gratuity, provident fund, and family pension while calculating the compensation? 3. Whether the quantum of compensation awarded by the Tribunal was inadequate?
Ratio Decidendi: 1. The opponent cannot challenge the finding of negligence in the absence of a cross-objection or an independent appeal. Order 41, Rule 22 of the Code of Civil Procedure allows for cross-objections in appeals under the Motor Vehicles Act. However, the opponent failed to file a cross-objection, and the finding of negligence has become final. 2. The Tribunal erred in deducting the amounts received by the widow towards gratuity, provident fund, and family pension while calculating the compensation. These amounts would have been received by the deceased in any case, even if he had survived. The family pension amount is also not deductible as it is presumed that the deceased would have spent it on the family. 3. The quantum of compensation awarded by the Tribunal was inadequate. Considering the deceased's age, salary, and potential earnings, as well as the loss of gratuity, provident fund benefits, and general damages, the appropriate compensation should be Rs. 1,00,000/-.
Final Decision: The appeal was partly allowed. The award was enhanced from Rs. 39,600/- to Rs. 1,00,000/- with interest @ 6% p.a. from the date of application till realization. The Insurance Company's liability was limited to Rs. 50,000/-. The apportionment of compensation among the claimants was confirmed as per the Tribunal's order.
Key Points: - The court's discretion in determining compensation should consider the deceased's age, salary, potential earnings, loss of benefits, and general damages (!) . - Deductions for amounts received by the widow towards gratuity, provident fund, and family pension are not appropriate as these would have been received by the deceased in any case (!) . - A respondent cannot challenge a finding of negligence in the absence of a cross-objection or an independent appeal, as Order 41, Rule 22 of the CPC allows for cross-objections in Motor Vehicles Act appeals (!) . - The Tribunal erred in deducting gratuity, provident fund, and family pension amounts from the compensation calculation (!) . - The quantum of compensation awarded was inadequate, considering the deceased's age, salary, and potential earnings (!) . - The appeal was partly allowed, enhancing the award from Rs. 39,600/- to Rs. 1,00,000/- with interest (!) . - The Insurance Company's liability was limited to Rs. 50,000/- (!) . - The method of deciding compensation solely based on the interest a lump sum might receive is unscientific and unwarranted (!) . - The deceased, a headmaster, died in a road accident due to the negligent driving of a truck (!) . - The claimants were awarded a total of Rs. 1,00,000/- towards compensation, with interest at 6% per annum from the date of application until realization (!) .
2. It is an admitted position that the deceased Shankarrao was working as a headmaster in the New English High School at Atit, Taluka and District Satara. On 21st April, 1979 he went to Karad for purchasing materials for the High School building which was then under construction. On that day he halted at Karad. On 22nd April, 1979 he left Karad early in the morning at about 6 a.m. on his motor-cycle. When he came near he Milk Dairy, a goods truck bearing No. MTD 2812 driven by opponent No. 1. Kabalsing came from the opposite direction. It was being driven at a high speed. The said truck, all of a sudden, swerved to its right and after coming near to the motor-cycle of Shankarrao, it gave a dash to it. After the impact, Shankarrao was thrown away from his motor-cycle receiving a number of injuries on his person on account of which he died on the spot. Thus it is the case of the claimants that the death of the Shankarrao was caused on the account of the rush and negligent driving of the truck by opponent No. 1 and therefore, they are entitled to get compensation from the owner of the truck as well as the insurer the New India Assurance Co. Ltd. The claimants had further stated in their application that the deceased was getting a pay of Rs. 1060/- per month at the time of the death. He was about 38 years of age and was of sound health. He would have earned an amount of Rs. 4, 25, 300/- in case he had not died in the accident. By making allowance for deductions etc. the claimants restricted their claim to Rs. 2,00,000/-.
3. Opponents No. 1 and 2 filed their joint Written Statement. They denied that the accident took place on account of the rush and negligent driving of the truck by the truck driver. According to them, the truck driver was driving the truck cautiously and at the normal speed, but the deceased who was coming on the motor-cycle drove it rashly and negligently and dashed against the truck, causing the accident. Thus according to opponents, the accident took place because of the rash and negligent driving by Shankarrao, the deceased. They also contained that the amount of compensation claimed by the applicants is excessive and exorbitant. The Insurance Company adopted the contention raised by the opponents Nos. 1 and 2. It also contented that the liability of the insurance company is limited to Rs. 50,000/- only.
4. On the basis of the pleadings of the parties, the Motor Accident Claims Tribunal framed the necessary issues. In support of their case, the claimants examined, Padma, widow of the deceased Shankarrao, a Clerk from the New English at Atit and one Chandulal Momin, a panch witness to the spot panchnama. The opponents examined the driver of the truck, Kabalsing. After appreciating all the evidence on record, the Claims Tribunal came to the conclusion that the death of Shankarrao was caused on account of the rash and negligent driving of opponent No. 1-Kabalsing, the driver of the goods truck. However, so far as the quantum of compensation is concerned, the learned member dismissed the claim made by the widow on the ground that she should be getting Rs. 116/- per month by way of family pension. She was also entitled to get the amount of the Provident Fund and gratuity to the tune of Rs. 9,732/- and Rs. 10,000/-. She was also paid the amount of the in Insurance policy to the tune of Rs. 2,060/-. The learned member found that she would be getting interest at least at the rate of Rs. 175/- per month and this taken together with the amount of her family pension, she would be getting at least Rs. 300/- per month which would be sufficient for maintaining herself and therefore, she is not entitled to get an
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
