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The Oriental Fire and General Insurance Co. Ltd. Vs. Juliana M. D'souza and Ors. (09.11.1984 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 119 of 1981
Judge
Reported inI(1985)ACC501; AIR1986Bom25
ActsMotor Vehicles Act, 1939 - Sections 110-B
AppellantThe Oriental Fire and General Insurance Co. Ltd.
RespondentJuliana M. D'souza and Ors.
Appellant AdvocateV.H. Gumaste and;S.M. Mhamane, Advs.
Respondent AdvocateY.J. Master, Adv.
Excerpt:
.....act that the complainant should disclose the caste of the accused in the complaint. in other words, if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - thirdly, though the life span has been taken as 40 years, no deductions have been made for the uncertainties of life as well as the fact that a lump sum payment having been made to the mother, she could have profitably invested the same and got an assured monthly return. as the success is divided there will be no order as to costs in this appeal......entire life span period, he arrived at a figure of rs.96,000/-. having arrived at this figure, the learned judge of the lower court found that the plaintiff had claimed only rs. 70,000/- and hence decreed the suit.3. we find that the mode of computation suffers from several infirmities. in the first place, the lower court has not taken into consideration the age of the mother juliana who, at the time of filing of the suit was 45 years old. secondly, the deceased at the time of the accident was only 21 years and an unmarried boy. it is reasonable to presume that within two to three years he would have married and raised the family which would have cut down on the monthly allowance he was giving to his mother. thirdly, though the life span has been taken as 40 years, no deductions have.....
Judgment:

Vaze, J.

1. Benjamin D'Souza was travelling by a car No. MRS 7120 belonging to one Shri Karbari Khashaba Desai to Nasik as he had to attend to electrical wiring work at Nasik. Benjamin was sitting on the front seat by the left side of the driver and the car dashed against a truck No. MHT 3589 driven by Defendant No.2 Jagdeev Bachansingh Sardar and owned by Defendant No.1 Gurunamsingh Bhajansingh. As a result of the impact Benjamin died and his mother Juliana M. D'souza filed a suit in the Court of the Joint Civil Judge, Senior Division, Thane, for damages, which, having been decreed at Rs. 70,000/- the Insurance Company appeals.

2. It is a remarkable feature of the suit that neither the owner of the truck nor the driver put in any appearance and hence Mr. Gumaste, the learned Counsel appearing on behalf of the Insurance Company, has attacked the finding of the lower Court only so far as it relates to the question of quantum of compensation. It appears that the lower Court followed a thumb rule method of calculating the dependency at Rs.200/- per month. Taking then the life span of the deceased Benjamin as 40 years and multiplying the figure of per month income by the entire life span period, he arrived at a figure of Rs.96,000/-. Having arrived at this figure, the learned Judge of the lower Court found that the plaintiff had claimed only Rs. 70,000/- and hence decreed the suit.

3. We find that the mode of computation suffers from several infirmities. In the first place, the lower Court has not taken into consideration the age of the mother Juliana who, at the time of filing of the suit was 45 years old. Secondly, the deceased at the time of the accident was only 21 years and an unmarried boy. It is reasonable to presume that within two to three years he would have married and raised the family which would have cut down on the monthly allowance he was giving to his mother. Thirdly, though the life span has been taken as 40 years, no deductions have been made for the uncertainties of life as well as the fact that a lump sum payment having been made to the mother, she could have profitably invested the same and got an assured monthly return. Taking all these factors into consideration, we find that the quantum of damages of Rs.70,000/- should have been slashed down and reduced by half bringing it to Rs.35,000/- only.

4. In the result, the appeal is partly allowed, and for the figure of Rs.70,000/- appearing in the order of the trial Court, figure of Rs.35,000/- is substituted. On deposit of the amount, the lower Court shall pass appropriate orders in tune with the guidelines laid down by this Court in Messrs. Nav Bharat Builders v. Smt. Pyarabai : 1984(2)BomCR9 . Rest of the order passed by the learned trial Judge including as respects interest stands and is confirmed.

5. The claimant is directed to approach the trial Court for necessary orders. As the success is divided there will be no order as to costs in this appeal. Order accordingly.


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