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Urmila Kaur and ors. Vs. Bapu Rajaram Kothale - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in2(1985)ACC86
AppellantUrmila Kaur and ors.
RespondentBapu Rajaram Kothale
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power..........the tribunal. the tribunal started with the hypothesis that dr. bewali being 41 years old had 17 years service to which he could look forward but considering the fact that life span was about 65 years, the tribunal assumed the multiplier of 20 years and cad to the figure of rs. 2,88,000/- on the basis that dr. bewli's contribution to the family would have been to rs.1,200/- per month. from this figure of rs.2,88,000/- te tribunal deducted one sixth on account of accelerated payment and other uncertainties of life and arrived at the figure on rs. 2,40,000/-. from this amount a deduction of rs. 8,000/- was made on account of payment which the widow received from the life insurance corporation under the policy taken on the life of the deceased.3. the tribunal further deducted rs. 26,000/-.....
Judgment:

V.V. Vaze, J.

1. Doctor Bewali who had obtained doctorate in agriculture was in the faculty of the agricultural college. Dhule as Professor and Head of he department of Botany He was drawing Rs. 2,460/- per month. On 21-6-1980 when he was proceeding on scooter towards agricultural college on Dhule-Parola road, the truck belonging to Bapu Kothale and driven by Ramesh More came from behind and dashed against Dr. Bewali as a result of which Dr. Bewali suffered injuries and was immediately renomed to hospital. Inspite of amputation of Dr. Bewali's right leg which was crushed, he could not recover and died on 23-6-1980 a couple of days after the accident. Urila kaur his wife and the three children of Dr. Bewali preferred claim petition No. 42 of 1980 before the Motor Accident claims Trihunal, Dhule and the Tribunal awarded compensation of Rs. 65,000/- against the owner, Dhule and the the Insurance Company but limited the liability of insurer to Rs. 50,00/- The claimants appeal.

2. As there is no appeal or cross objecrion filed by the owner we did not permit the earned Counsel for the owner to canvass a plea of contributory negligence. Thus the only issue that survives in this appeal is regarding compensation of damages made by the Tribunal. The Tribunal started with the hypothesis that Dr. Bewali being 41 years old had 17 years service to which he could look forward but considering the fact that life span was about 65 years, the Tribunal assumed the multiplier of 20 years and cad to the figure of Rs. 2,88,000/- on the basis that Dr. Bewli's contribution to the family would have been to Rs.1,200/- per month. From this figure of Rs.2,88,000/- te Tribunal deducted one sixth on account of accelerated payment and other uncertainties of life and arrived at the figure on Rs. 2,40,000/-. From this amount a deduction of Rs. 8,000/- was made on account of payment which the widow received from the Life Insurance Corporation under the Policy taken on the life of the deceased.

3. The Tribunal further deducted Rs. 26,000/- on account of Provident Fund, Rs. 17,000/- as gratuity and Rs. 58,000/- as the total amount of family pension which the widow was entitled to receiver and it is this deduction which is contested in this appeal by Mr. P.M. Shah, the learned Counsel for the appellants.

4. Considering the fact that the deceased was in government service it stands to reason that he would have received the amount of Provident Fund which was his own contribution and his death has made no difference in the quantum of the fund. Same is true about the gratuity which depends upon the number of years of service rendered by a Government servant. As far as the family pension is concerned, as per conditions of service, the Government servant would have been entitled to a regular pension upon superannuation ** in his own right and so was his widow entitled if the Government servant would have died after retirement. These payments could not be called pecuniary advantages arising by reason of the death of the deceased and hence we feel that the deductions of Rs. 26,000/-, Rs. 17,000/- and Rs. 57,960/-are not justified in law. Such a view has been taken by this Court in First Appeal No. 709 of 1982 (Smt. Padmadevi v. Kabulai) decided on 14-11-1984.

5. As regards the multiplier of 20 taken by the Tribunal we feel that it is on the higher side in view of the fact that the deceased was 41 years' old and had only 17 years of service to look forward to reducing the multiplier to 15 years the amount of his earnings would have been Rs.2,16,000/-. Deduct ing one sixth from this amount as has been done by the Tribunal we arrive at a figure of Rs. 1,80,000/-. As regards the deduction of Rs. 80,000/- on account of payment of insurance we find it to be justified because the two policies which were taken on the life of Dr. Bewali were now ones -one was of the year 1974 and Anr. of 1976 and hence there is not much scope for a rebate on account of acceleration. Deducting this amount from the figure of Rs. 1,80,000/- we arrive at the figure of Rs. 1,00,000/- from which on further deduction as made by the Tribunal on account of family pension, gratuity and provident fund is permissible. To this figure we add Rs. 5,000/- as non-peculiar damages as has been done by the Tribunal and arrive at the figure of Rs. 1,05,000/- as the fair damages payable to the claimants out of which the liability of the opponent no. 3 Insurance company is limited to Rs. 50,000/-. Claim against opponent no. 4-The State Bank of India is dismissed. The appeal succeeds partly and for the figure of Rs. 65,000/- occurring in third line of the order the figure of Rs. 1,05,000/- is substituted. Rest of the order including that as to interest and costs is confirmed. On realisation or deposit of the amount the Tribunal shall pass appropriate orders in consonance with the guidelines given in Nav Bharat Builders v. Smt. Pyarabai w/o Dadu Mane : 1984(2)BomCR9 . In the facts and circumstances of the case there will be no order as to costs in the appeal.


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