Abdul Gani Sheikhe Usman & Ors. vs Sheikh Mukhatar Sk. Jabbar & Ors.

Heard Mr. S.S. Bhalerao, learned counsel for the appellants and Mrs. S.P. Deshpande, learned Counsel for respondent No.5. Though respondent Nos.1 to 4 have been served on merits, none appears on their behalf.

By the consent of learned counsels appearing on behalf of the respective parties, the appeal is taken up for final disposal.

The appellants have challenged the judgment and award dated 22.06.2012 passed by the learned Member, Motor Accident Claims Tribunal, Darwha in M.A.C.P. No.146/2006. Vide the said judgment and award, the learned Tribunal was pleased to partly allow the claim petition with proportional costs and thereby, directed respondents Nos.2 and 3 therein to jointly and severally pay compensation amounting to Rs.1,40,000/- including the amount of no fault liability with interest at the rate of 6% per annum from the date of the application.

The appellants had filed the M.A.C.P. No.146/2006 before the Motor Accident Claims Tribunal, Darwha, claiming compensation of Rs.3,00,000/-.

Mr. Bhalerao, learned counsel for the appellants submits that the impugned judgment and award dated 22.06.2012 passed by the learned Tribunal thereby, granting compensation of Rs.1,40,000/-including the amount of no-fault liability with interest at the rate of 6% per annum is highly inadequate and the same requires to be enhanced by granting compensation of Rs.1,65,000/- at the rate of 9% per annum. According to him, the deceased Mohd. Kabir Abdul Gani, was aged about 18 years and was son of appellant Nos.1 and 2. He submits that the deceased was engaged in the business of selling utensils and was earning Rs.3,000/- per month. He further submits that on 03.06.1997, the deceased was traveling in a Jeep bearing Registration No.MH-29-B-1785. When the said jeep reached near the turning of village Lasina, a Truck bearing Registration No.MWY-5284 came from opposite direction at a high speed and gave dash to the jeep in rash and negligent manner. Due to which the deceased sustained head injury and succumbed to death on the spot. The said truck was being driven by respondent No.1 and was belonged to respondent No.2. The appellants had filed the claim petition under Section 140 and 166 of the Motor Vehicles Act, 1988 (for short “the Act”). Vide order dated 02.08.2001, the learned Tribunal allowed the application under Section 140 of the Act. After adducing the evidence and after hearing the learned counsels for the parties, the learned Tribunal while deciding the application under Section 166 of the Act, observed that the deceased was unmarried. The learned Tribunal has considered the notional income of the deceased as Rs.15,000/- per annum and therefore, the half of the total income of the deceased was deducted and Rs.7,500/- per annum came to be treated as personal and living expenses of the deceased. The age of the deceased as reflected in the School Leaving Certificate came to be accepted i.e. 19 years and by applying the multiplier of 18 in terms of the judgment of Hon’ble Supreme Court in the matter of Sarla Varma and Others Vs. Delhi Transport Corporation reported in 2009(2) TAC 677 SCC, the compensation came to be assessed and accordingly, by adding expenses towards funeral and mental and physical shock, pain, sufferings, loss of love, loss of estate and loss of consortium. Accordingly, the learned Tribunal held the applicants/claimants entitled for grant of total compensation of Rs.1,40,000/-.

Taking exception to the aforesaid calculations, learned counsel for the appellants submitted that the deceased was earning a minimum income of Rs.5,000/- to Rs.6,000/- per month. He further submits that the deceased was engaged in the business of selling utensils and used to give Rs.4,500/- to Rs.5,000/- per month to his parents. According to him, no reasoning has been given by the learned Tribunal as to why the said income cannot be considered by the learned Tribunal in its impugned judgment. Thus, the learned Tribunal has committed grave error while calculating the amount of compensation by considering the notional income of the deceased at Rs.15,000/- per annum.

Per contra, Mrs. Deshpande, learned counsel for respondent No.5-Insurance Company, submitted that the Jeep, though insured, was not held responsible for the accident. She submitted that it was the Truck belonging to respondent No.2-Shankarlal Hanumanprasad Sharma, and insured with the respondent No.3-United India Insurance Co. Ltd., which was held responsible for the accident. Accordingly, respondent Nos.2 and 3 were directed to jointly and severally pay the compensation amount.

In the present case, Mrs. Anita Mategaonkar, learned counsel appeared on 10.07.2026 and 17.06.2026, on both occasions, during the course of final hearing. She submitted that despite contacting the respondent No.3-Insurance Company, she had neither received any instructions nor been given her vakalatnama. She further submitted that the Insurance Company had also not taken any steps to engage any other empanelled counsel to represent them in the present appeal. She however, tried to assist this Court with the material available record. She submitted that the impugned judgment and award passed by the learned Tribunal is correct and proper and required no interference and prayed for dismissal of the application.

Mr. Bhalerao, learned counsel for the appellant in support of his submissions has relied upon the judgment in the matter of National Insurance Company Limited Vs. Khimlibai and Others reported in (2009) 10 Supreme Court Cases 648. According to him, the said judgment is in respect of the motor accident that occurred on 24.05.1997, wherein the income of the deceased who was carpenter was considered as Rs.100/- per day. In the present case, the deceased engaged in the business of selling utensils and was earning between Rs.4,500/- to Rs.5,000/- per month. He therefore, submitted that at least Rs.100/- per day, as the income of the deceased is required to be taken into consideration for the calculating the compensation.

After hearing the learned counsels for the respective parties, the Court has perused the deposition of witness No.1 for prosecution-Abdul Gani Sheikh Usman. It is deposed by him that Mohd. Kabir Abdul Gani, was his elder son and who died on 03.06.1997. He further deposed that the deceased was proceeding to Yavatmal by a Taxi Jeep, which met with an accident in view of the rash and negligent driving on the part of the truck driver. The Crime No.69/1997 came to be registered against the truck driver. According to the father of the deceased, the deceased used to give Rs.4,500/- to Rs.5,000/- per month to the family. The aforesaid evidence remained unchallenged, as nobody has cross-examination this witness. The spot panchanama as well as the post-mortem report also disclose that the de-ceased died on spot.

The prosecution has also examined the witness No.3 namely Mussawarkhan Khudayarkhan as witness No.3 at Exh.42. The said witness specifically deposed that he was traveling along with him in the said jeep and he was occupying the seat near the driver, whereas the deceased was seated in the back side. He further deposed that the jeep was being driven slowly and cautiously on the correct side of the road, when one truck came from the opposite side in a zig-zag manner. The said truck directly came on the jeep giving dash to the jeep, due to which the deceased fell down and sustained the head injuries, his skull was fracture and the brain material had came out. This witness further deposed that the deceased was earning Rs.5,000/- to Rs.5,500/-per month and he had gone to Ner, to give money to his father. The evidence of this witness also remained unchallenged, as nobody has cross-examined him.

The evidence of this witness is also crucial, as he is an eye-witness to the accident and as such, the negligence on the part of truck driver has also been fully established.

Though the learned Tribunal partly allowed the claim petition, thereby, granting a compensation of Rs.1,40,000/- however, the monthly income considered by the learned Tribunal, is evidently highly inappropriate. Learned counsel for the appellants has demonstrated before this Court that even the monthly income of the carpenter during the relevant period was considered at Rs.3,000/- per month. In the present case, the deceased Mohd. Kabir Abdul Gani, was engaged in the business of selling utensils and there is sufficient evidence available on record to consider the income of the deceased between Rs.4,500/- to Rs.5,000/-. However, in order to secure the ends of the justice, it would be appropriate to consider the income of the deceased at Rs.3,000/- per month and therefore, the total compensation is required to be calculated considering his income at Rs.3,000/- per month. Accordingly, by considering the said income, the following amounts towards the total compensation is being calculated as under :-

Thus, in view of the above calculations, I am of the view that in order to secure the ends of justice, it would be appropriate to direct the respondent Nos.2 and 3 to pay jointly and severally an amount of Rs.5,86,700/- to the appellants along with interest at the rate of 9% from the date of registration of claim petition, till the realisation of entire amount. Accordingly, I pass the following Order :-