1 F.A..No.2029 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. FIRST APPEAL NO. 2029 OF 2011 1. Nilabai w/o Vishwanath Harnwal, Age : 38 years, Occ. Household, 2. Annasaheb s/o Vishwanath Harnwal, Age : 20 years, Occ. Education, 3. Sakhu D/o Vishwanath Harnawal, Age : 18 years, Occ. Education, All R/o Bardapur, Tq. Ambajogai, Dist. Beed ..APPELLANTS (Orig. Claimants) VERSUS 1. Nagnath S/o Sidram Kumbhar, Age : Major Years, Occ.Business & Driver, R/o Maulinagar, Devlai, Tq. & Dist. Aurangabad 2. Royal Sundaram Alliance Insurance Co. Ltd., Through its Branch Manager ..RESPONDENTS Mr R.B. Deshpande, Advocate for the appellants; Mr Pratap G. Rodge, Advocate for respondent no.1; Mr A.S. Deshpande, Advocate for respondent no.2. CORAM : MRS MRIDULA BHATKAR, J. DATE : 14th September, 2011 ORAL JUDGMENT : 2 F.A..No.2029 of 2011 Since a short issue is involved in the instant First Appeal, it is admitted and with the consent of learned Counsel for the parties heard finally and being decided at the stage of admission. 2. By this appeal, the appellants/original claimants have taken an exception to the award dated 6.5.2009, passed by the Member, Motor Accident Claims Tribunal, Ambajogai in M.A.C.P. No.56 of 2008. 3. The facts in brief as are necessary for the decision of this appeal are stated thus :- Appellant no.1 is wife of the deceased Vishwanath, whereas appellant no.2 is father and appellant no.3 is a daughter. Accident took place on 26.2.2008 when deceased Vishwanath was travelling along with relatives in auto-rickshaw bearing No.MH20-AG-6156, owned and driven by respondent no.1. Respondent no.2 is a insurance company. Deceased was travelling from Renapur to Bardapur by the said auto- rickshaw. The vehicle, i.e. rickshaw gave dash to a stationary trolly, which was standing at the side of the road. Vishwanath and other passengers in the auto-rickshaw were injured. Vishwanath sustained several fractures and injuries and so was admitted in the hospital at Ambajogai. However, he succumbed to the injuries on the same day, i.e. on 26.2.2008. Claimants filed application under section 166 of the Motor 3 F.A..No.2029 of 2011 Vehicles Act seeking compensation of Rs.10,00,000/- along with interest thereon at the rate of 18% per annum from the date of the accident. 4. Respondent no.1 and respondent no.2 both appeared before the Tribunal and contested the claim. The fact that the auto-rickshaw was insured with respondent no.2 is not disputed. 5. In the application claimants averred that deceased Vishwanath was running a grocery shop out of which he was drawing Rs.7,000/- per month, so also he was cultivating agricultural land and he was owner of well digging machine (crane), which he used to hire and earn income. Respondents challenged the amount of the earning of the deceased. They resisted the claim by filing written statements. It was denied that the accident has taken place due to negligence of respondent no.1. 6. The Tribunal has considered the evidence tendered by the claimants and also the documents before it and though held that the accident has taken place due to rash and negligent driving of respondent no.1, accepted the income of the deceased at very meager amount, i.e. Rs.12,000/- per annum. The Tribunal fixed the amount of the compensation by holding the annual income of Rs.12,000/- with interest at the rate of 7.5% per annum and granted other consequential benefits. 4 F.A..No.2029 of 2011 7. Being aggrieved with this judgment and award, the present appeal is filed. Learned Counsel appearing for the appellants submits that though claimants have tendered evidence of the income of the deceased from the agricultural land and earning from the grocery shop and by hiring the crane, the Tribunal has erred in not accepting the same in favour of the claimants. The claimants restrict the scope of the appeal only on the point of the income of the deceased. 8. Learned Counsel appearing for respondents no.1 & 2 while challenging the contentions of the claimants submit that learned Tribunal has taken a right view that the claimants have not proved the monthly or annual income of the deceased as claimed by them. It is submitted that it was necessary for the claimants to produce documentary evidence to show that deceased was cultivating land and was also running a grocery shop. Learned Counsel further submits that if a crane was owned by the deceased, then it being a motor vehicle it was necessary for the claimants to produce registration certificate of the said vehicle. It is further submitted that as no documentary evidence is produced, the award made by the Tribunal needs no interference. 9. Points for determination in the present appeal are :- (1) Whether the monthly income of the deceased was Rs.1,000/- or more than Rs.1,000/- ? 5 F.A..No.2029 of 2011 Ans : More than Rs.1,000/- (2) Whether the amount of compensation be enhanced ? Ans : In the affirmative Deceased was travelling in the auto-rickshaw and the auto-rickshaw dashed on the trolley which was stationary at the road side. The issue of negligence is held in favour of the claimants by the Tribunal, so it is not to be dealt with in this appeal. As the challenge is raised only on the point of annual or monthly income of the deceased, the evidence tendered by the claimants and the appreciation thereof is required to be considered. 10. Claimant no.1 Nilabai, wife of deceased Vishwanath has examined herself as C.W.1. She has deposed that her husband was 40 years old at the time of the accident. He was an agriculturist and was also running a grocery shop by name Mauli Kirana Stores at Bardapur. She has deposed that he used to earn Rs.1,50,000/- per annum excluding expenditure from the agricultural land and Rs.7,000/- per month from the grocery shop. She has deposed that he was having a crane and by hiring the said crane he used to earn Rs.10,000/- per month. She has further deposed that there is no earning member in the family as also there is no other source of income and after death of her husband as there is nobody in the family to look after the agricultural land, the family 6 F.A..No.2029 of 2011 is required to employ a labour, to whom they have to pay Rs.25,000/- per year. She has further deposed about tendering the documents which are to be exhibited. In the cross-examination on behalf of respondent no.2 only suggestions were put to this witness, which she has denied. This witness did not give any admission favourable to the respondents. Another witness Sarvottam Suryakant Joshi (C.W.2) was examined on the point of the income of the deceased. He had hired the crane i.e. well digging machine and for that he had paid Rs.40,000/- to deceased Vishwanath. He supported the evidence of C.W.1 Nilabai that deceased was running a grocery shop. In the cross-examination it is brought on record that the witness is a owner of the land bearing Gut No.124, situate at village Tatapur. He had brought 7/12 extract of the said land. 11. Learned Tribunal has erred in appreciating this evidence. In the evidence of C.W.1 Nilabai she has mentioned that she has deposited a certificate of the Grampanchayat, Bardapur in respect of said grocery shop, so also she has deposited purchase receipts in respect of the grocery articles kept for sale in the said shop. Thus, this is a sufficient evidence that Tribunal ought to have accepted and should have fixed some reasonable amount as an earning from the grocery shop. The Tribunal committed an error in rejecting evidence that deceased was running a grocery shop. The Tribunal has accepted evidence that Vishwanath was an agriculturist and was having agricultural land and, therefore, he was earning Rs.1,000/- per month, i.e. Rs.12,000/- per 7 F.A..No.2029 of 2011 annum as he was supervising the agricultural land. Learned Counsel appearing for the appellants has submitted that a well digging machine is not a vehicle, but it is manually made and no registration number is given to such machine. In view of the evidence of the two witnesses tendered by the claimants, the submissions of learned Counsel for the claimants are accepted. Hence, such man made machine is not a vehicle and no registration is required, so, no such evidence of registration can be available. Therefore, oral evidence of C.W.2 Sarvottam Joshi should not have been disbelieved, on the point that deceased was having a well digging machine/crane and he used to earn by giving it on hire. 12. Though C.W.1 Nilabai has deposed that the grocery shop is shut down and crane is lying idle after death of her husband this evidence and the submissions on this point cannot be accepted as the grocery shop can be run by other family members and the crane also can be given on hire for well digging and, therefore, there cannot be a loss of total income from these two sources. 13. It is a settled position that a minimum notional income is to be held at Rs.3,000/- per month. The income of Rs.12,000/- per year is fixed by the Tribunal as income as an agriculturist and supervising the land. The grocery shop situate at Bardapur, which is a small village and, therefore, 8 F.A..No.2029 of 2011 the income from the grocery shop can be fixed at Rs.2,000/- per month, though it is claimed at Rs.7,000/- per month. The income derived by way of hiring the well digging machine is to be fixed reasonably at Rs. 500/- per month. So, the income of the deceased Vishwanath is fixed at Rs.3,500/- per month, which in my view is an appropriate income and accordingly the order of the Tribunal only on the point of the annual income of deceased Vishwanth is set aside. The order of the Tribunal on the other heads and other consequential benefits including the rate of interest need not be disturbed. 14. Thus, if at all monthly income of deceased is fixed at Rs.3,500/- 1/3rd amount therefrom is required to be deducted. At the time of death Vishwanath was 40 years old and, therefore, we have to apply multiplier of 15. So, Rs.3500 - 1167 i.e. 1/3rd = Rs.2,333 per month x 12 x 15 = Rs.4,19,940/-, rounded off to Rs.4,20,000/- + Rs.57,000/- granted by the Tribunal on other heads. So, the total amount of award for which the claimants are entitled to comes to Rs.4,77,000/-. Tribunal has awarded Rs.2,37,000/- which is to be deducted and thus, Rs.4,77,000 - Rs. 2,37,000 = Rs.2,40,000/- + interest at the rate of 7.5% per annum from the date of the claim petition till its full realisation. 9 F.A..No.2029 of 2011 The appeal is thus partly allowed on the above terms. In the circumstances, there will be no orders as to costs. ( MRS MRIDULA BHATKAR, J.) amj/fa2029.11