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2015 Supreme(Bom) 2144
IN THE HIGH COURT OF BOMBAY AT GOA BENCH
K.L. WADANE, J.
United India Insurance Co. Ltd. – Appellant
Vs.
Saish Shivanand Raikar and Ors. – Respondents
First Appeal No. 107 of 2012
Decided On : 27.03.2015
Advocate Appeared:
For the Appellants :E. Afonso, Advocate
Headnote:Motor Vehicles Act, 1988 - Section 166 Compensation towards pain and sufferings Determination of. - In the present case, compensation of Rs. 52,00,000/- granted to claimants for pain and suffering on ground of they being orphan was unjustified because said claimants were found, at the time of accident and also at the time of filing claim petition, to be major and not minor. The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the "loss of dependency" to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
Motor Vehicles Act, 1988 - Section 166 Multiplier Determination of. - In the present case, appropriate multiplier was concluded ’14’ where age of deceased at the time of accident was 44 years, 6 months and 20 days. In this behalf on further scrutiny of the record, it is seen that the birth date of the deceased has been mentioned in the income tax returns as 1.3.1963. This date has been consistently appearing in the income tax returns submitted by the deceased and her husband during the period from 2004-2007 wherein pan card number of the deceased is also mentioned. Therefore, obviously, the birth date given by the deceased on the basis of the pan card at the time of filing of the income tax returns appears to be perfect and in my opinion this is concrete evidence of the birth date of the deceased. Age of the deceased as shown in the other documents referred above seems to be written on the basis of guess or told by somebody. The date of birth of the deceased proved to be 1.3.1963, she died on 24.9.2007, so as on the date of the accident the deceased was aged 44 years, 6 months and 20 days and proper multiplier to be adopted in the case for person died between the age group of 41 years to 45 years is shown to be 14 as per directions.
Motor Vehicles Act, 1988 - Sections 166 and 168 Claim for compensation Determination. - It is alleged that deceased died on account of head injuries during course of treatment which was caused to him by collision between motor cycle and mini-bus deceased at the time of accident was 49 years old and Court determined his yearly income Rs. 1,51,216. After 1/3 of income of deceased deducting for his personal expenses, total compensation of Rs. 14,15,854/- along with 9% p.a. interest from date of petition till its realisation was awarded in favour of claimant.
K.L. Wadane, J.
1. The present appeal is preferred by the appellant i.e. United India Insurance Co. Ltd., against the judgment and award dated 7.1.2012 passed by the Presiding Officer, Motor Accident Claims Tribunal-II, Margao ("Presiding Officer" for short) in Claim Petition no.32/2010 whereby the claim petition under Section 166 of Motor Vehicles Act filed by the respondent nos.1 and 2 was partly allowed and the learned Presiding Officer has awarded total compensation of Rs. 17,16,665/- together with 9% interest from the date of application. Hence, the present appeal.
2. Parties shall hereinafter referred to as per their original status in the claim petition.
3. The brief facts of the case may be stated as follows:-
Claimants have moved the petition under Section 166 of the Motor Vehicles Act claiming total compensation of Rs. 39,31,000/- due to death of their mother in the motor vehicular accident.
On 20.09.2007 the deceased Nayan, aged about 44 years was pillion rider on the motorcycle bearing registration no. GA-01-K-6989 driven by the claimant no.1 and they were proceeding from Panaji to Ponda. When they reached near spot of the accident at that time a mini bus bearing registration no. GA-01-T- 8333 driven by the respondent no.1 in the process of overtaking gave a dash to their motorcycle from a rear side. Due to the dash motorcycle was dragged up to 8.75 metres and the mini bus went further up to 55 metres.
4. In the accident deceased Nayan sustained head injuries and due to which she was unconscious, therefore, she was immediately taken to GMC and thereafter shifted to Vintage hospital for further and better medical treatment. However, during the medical treatment she died on 24.9.2007. At the time of death deceased Nayan, was aged about 44 years.
5. The respondent nos.1 and 3 have filed their respective written statement and they have denied almost all the contents of the petition. The age, occupation and income of the deceased has been specifically denied so also the negligence of the driver of the mini bus i.e. respondent no.1 is specifically denied. On the contrary it was their case that there was negligence on the part of the claimant no.1 who was driving the motorcycle. It is admitted by the respondent no.3 that the mini bus was insured with it at the time of the accident.
6. Considering the rival contentions of both the sides, learned Presiding Officer had framed three issues and all the issues are decided in favour of the claimants and learned Presiding Officer has awarded the compensation as determined by holding that the income of the deceased was Rs.12601/- per month. Hence, the present appeal.
7. I have heard the arguments of Mr. Afonso, learned counsel appearing for the respondent no.3. None appeared on behalf of the claimants. With the help of Mr. Afonso, learned counsel appearing for the respondent no.3, I have gone through the oral evidence and perused the record. During the course of arguments Mr. Afonso, argued the matter broadly on two aspects i.e. learned Presiding Officer has not considered the appropriate multiplier to be applied in reference to the age of the deceased and secondly, compensation of Rs.2,00,000/- awarded to the claimants on account of pain and suffering is no where contemplated under law and it is unknown to law. He also argued on the other aspects and grounds mentioned in the memo of appeal.
8. Considering the arguments advanced by Mr. Afonso and looking to the rival contentions of both the parties and the evidence on record, following points arise for my determination:-
SR. NO. POINTS FOR DETERMINATION FINDING
1) Whether the learned Presiding Officer has selected the appropriate multiplier considering the age of the deceased on the date of the accident? No
2) Whether the claimants are entitled to compensation of Rs.2,00,000/- on account of pain and suffering? No
3) What order? Appeal is party allowed
9. From the evidence of AW2-Vinod Desai, a panch of the panchnama of scene of acciden
