2009(4) ALL MR 675
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

K.K. TATED, J.

The Asstt. Engineer, Cl.Ii, Kukadi Left Canal, Dist-Ahmednagar & Anr.Vs.Shri. Dattatraya Ganpat Kenge & Ors.

First Appeal No.109 of 1995,Cross-Objection St. No.6197 of 1996

8th May, 2009

Petitioner Counsel: Mr. M. L. DHARASHIVE
Respondent Counsel: Mr. P. S. SHENDURNIKAR,Mr. R. T. SHARMA

Motor Vehicles Act (1939), S.110A - Award of compensation - Fatal accident - Multiplier - Deceased Civil Engineer working with Irrigation Department - On date of accident his age was 27 years - Held, 15 is the proper multiplier - For want of evidence on record it is not possible to consider the future prospects of deceased at the time of calculating the compensation payable to claimants. (1996)3 SCC 179 - Rel. on. (Paras 14, 18)

Cases Cited:
Smt. Mandabai wd/o. Milind Sontakke Vs. P. Rajendra Prasad, 1995(4) B.C.R. 421 [Para 7]
Kantabai w/o. Sureshchandra Doshi Vs. Ahmed Khan Chand Khan (deceased) by his LRs. Muktyarbi w/o. Ahmed Khan, 2006(4) ALL MR 305=2006(4) Mh.L.J. 161 [Para 8,16]
A.P.S.R.T.C. Vs. M. Ramadevi, 2008 ALL SCR 696 : AIR 2008 S.C. 1221 [Para 9]
U.P. State Road Transport Corporation Vs. Trilok Chandra, (1996)4 SCC 362 [Para 11]
Sarla Dixit (Smt) Vs. Balwant Yadav, (1996)3 SCC 179 [Para 13,14,15]


JUDGMENT

JUDGMENT :- Heard Mr. Dharashive, learned A.G.P. for the Appellant and Mr. Shendurnikar, learned counsel for Respondent Nos.1 and 2.

2. Present First Appeal filed by original Respondent Nos.2 and 3 against the Judgment and award dated 27th January, 1994 passed by Member, Motor Accident Claims Tribunal, Ahmednagar in Motor Accident Claim Application No.240 of 1990. The original claimants also preferred Cross-Objection Stamp No.6197 of 1996 for enhancement of compensation.

3. In the present case the accident took place on 5th January, 1989 in which one Rajendra Kenge died. Respondent No.1 and 2 filed Motor Accident Claim Application No.240 of 1990 claiming compensation to the tune of Rs.3,50,000/- under Section 110-A of the Motor Vehicles Act, 1939. The trial Court awarded a sum of Rs.1,03,900/- to the original claimants with interest at the rate of 12% per annum from the date of Application i.e. 10th July, 1989 till realisation of the amount.

4. Learned A.G.P. submitted that the trial Court erred in coming to the conclusion that the original claimants are entitled compensation in respect of death of Rajendra Kenge to the tune of Rs.1,03,900/- along with interest. Learned A.G.P. submitted that the trial Court erred in coming to the conclusion that for calculating the compensation, the multiplier should be 15 years. He further submitted that the trial Court has not considered the evidence on record and awarded excess compensation to the claimants.

5. On the other hand, learned counsel appearing on behalf of Respondent Nos.1 and 2/original claimants submitted that the trial Court ought to have awarded a sum of Rs.3,50,000/- to the claimants. Learned counsel for Respondents/original claimants further submitted that the trial Court erred in coming to the conclusion that the deceased used to contribute only 1/3 income of his net salary for house expenses. He further submitted that the trial Court ought to have held that at the time of calculating the compensation, the multiplier should be 17 years. He further submitted that the trial Court has not considered the future prospects of the deceased at the time of calculating the compensation. On the basis of these submissions, learned counsel for Respondents submitted that the Cross-Objection preferred by them should be allowed in toto.

6. On the basis of the submissions of learned counsel for the parties, the points arises for consideration, are as under :

i) Whether the trial Court should have taken into consideration 2/3 income of the deceased as contribution towards the family ?

ii) Whether the trial Court should have adopted 17 years multiplier at the time of calculating the compensation ?

iii) Whether the trial Court ought to have taken into consideration future prospects of the deceased at the time of calculating the compensation ?

iv) Whether the compensation awarded by the trial Court is according to law ?

7. With the assistance of learned counsel for both the parties, I have gone through the Record and Proceedings of the present case. The accident took place on 5th January, 1989 in which Rajendra Kenge expired. It is the case of the Respondents/original claimants that the deceased was Civil Engineer and was working with Irrigation Department. He was earning a sum of Rs.1,856/- per month. On the date of accident, his age was 27 years. He used to contribute more than Rs.1,200/- per month towards house expenses. In support of his contention, learned counsel for the Respondents, relied on salary certificate issued by Irrigation Department, Pune dated 16th February, 1989 at Exhibit 36. Exhibit 36 shows that the deceased was getting net salary of Rs.1,694/-. Even the PW-1 Dattatraya Ganpat Kenge, father of deceased in his evidence stated that his son was drawing a salary of Rs.1,856/- per month. He further stated in his evidence that out of his salary, the deceased used to pay Rs.900/- to Rs.1,000/- to them for their expenses. Considering these facts, the trial Court held that the deceased used to contribute 1/3 of his salary i.e. Rs.600/- to his family. Learned counsel for the Respondents vehemently argued that the trial Court erred in coming to the conclusion that the deceased used to contribute only 1/3 of his gross salary i.e. Rs.600/- per month to his family. He submitted that in several cases the Apex Court as well as High Court held that usually 2/3 amount to be considered for fixing the compensation. In support of his contention learned counsel for Respondents relied on the Judgment reported in 1995(4) B.C.R. Page 421, Smt. Mandabai wd/o. Milind Sontakke and another Vs. P. Rajendra Prasad and another. He specifically relied on para 23 of the Judgment, which reads as under :

"23. It may be seen that the loss of dependency is measured by the loss of the amount of pecuniary benefit that the dependants could reasonably expect to have received from the deceased in future. In the ordinary case of the death of a wage earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses. It is necessary to see that in the absence of any evidence in that regard the amount of personal and living expenses of the deceased is conventionally determined by apportioning equal shares between him and his dependents. Thus where there are three family members, 1/3rd of his wages is estimated as his own personal and living expenses. However, in the instant case the learned Claims Tribunal has first excluded the honorarium of Rs.300 per month which the deceased Milind was getting from his Union, from his income on the ground that he was spending his time and energy in the Union work. It has thereafter excluded his share in his salary by taking his family as consisting of 2-1/2 units. In our view, the above approach of the learned Claims Tribunal is clearly erroneous. In considering the question of loss of benefit to the family of the dependents what has to be excluded is the personal and living expenses of the deceased. As such there is no reason to exclude the amount of Rs.300 per month which the deceased Milind was getting as honorarium from his Union. If he was spending his time and energy in the Union work, what needed to be excluded is the expenditure which he incurred i.e. his personal and living expenses for doing the union work. In fact the learned Claims Tribunal ought to have taken the total income of the deceased Milind from salary and the said honorarium at Rs.1,000 and then deducted from the said income the personal and living expenses of deceased Milind in discharging his own duties in the factory as well as in doing the union work and calculated rest of the income as loss of benefit to his family."

8. Learned counsel for the Respondents further relied on the Judgment reported in 2006(4) Mh.L.J. Page 161 : [2006(4) ALL MR 305], Kantabai w/o. Sureshchandra Doshi and others Vs. Ahmed Khan Chand Khan (deceased) by his LRs. Muktyarbi w/o. Ahmed Khan and others. In this case learned Single Judge of this Court held that 1/3 amount to be deducted towards personal expenses of deceased. Para 7 of the Judgment is relevant here, which reads as under:

"7. In MACP No.221 of 1991, it seems that deceased Sureshchandra Doshi is survived by two daughters and two sons and applicant no.1 widow as well. The learned tribunal has justifiably referred to the dependency of the parents in appeal no.312 of 2000. The income of the deceased Sureshchandra Doshi, as an advocate and from the agriculture land, is considered to be Rs.36,000 per annum. It comes to Rs.3,000 per month. In the absence of any proof of his income, the learned tribunal has justifiably arrived at conclusion with little guess work. The learned Tribunal however, while working out the amount of compensation, on account of death of Sureshchandra Doshi, applied the multiplier of 12. It is pertinent to note that there is no age proof placed on record by the Appellants, except the oral evidence. However, the learned Judge seems to have chosen multiplier as 12 without any explanation. While applying the multiplier, the tribunal/Court has to arrive at a conclusion, regarding the age of deceased person, on the basis of evidence and/or the facts circumstances, and other material on record. On the basis of material on record, in the present case, in my opinion, it is difficult to record any finding regarding the specific age of deceased Sureshchandra Doshi. However, it can be considered that deceased Sureschandra Doshi must be above 40 years of age and below 45 years, on the date of the accident. To choose the multiplier, reference, can be made to IInd Schedule of Section 163-A of the Motor Vehicles Act, 1988, by way of guideline. In that case, help of IInd Schedule referred to under Section 163-A, can be taken for working out compensation as well. The learned counsel Mr. Patni has relied on Judgment of the Apex Court in the matter of United Insurance Company Ltd. and others Vs. Patricia Jean Mahajan and others (2002)6 S.C.C. 281. The Apex Court in the matter of United India Insurance (supra) held that-

"12. It thus makes it clear that it is for the tribunal to arrive at an amount of compensation, which it may consider to the just in the facts and circumstances of the case. This Court however, has been of the view that structured formula as provided under the second Schedule would be a safe guide to calculate the amount of just compensation. Deviation though permissible, may only be resorted to for some special reasons to do so. So far as structured formula is concerned, it provides for a maximum multiplier of 18. The application of the multiplier depends upon the age of the deceased etc. Again we find that the structured formula relates to a victim whose income is upto Rs.40,000 per annum. It may be clarified that in the accepted and prevalent method, would be applicable and has been applied. The question of setting apart 1/3rd of the income on account of expenditure on self by the deceased is also not in dispute i.e. to say that the amount of multiplicand shall be 2/3rds of the annual income of the deceased. The annual income of the deceased, as found by the learned Single Judge and the Division Bench, namely, 3,39,445 dollars is also not in dispute, nor the amount of dependency, 2,26,297 U.S. dollars. The only dispute is about application of 13 as multiplier as applied by a Division Bench of the High Court following the second Schedule to the Act."

In this view of the matter, in my view, multiplier of 15 for the age group in between 40 to 45, as mentioned in Schedule II of Section 163-A of the Motor Vehicles Act can safely be accepted. Thus, the amount of compensation with multiplier of 15 would be as follows, after deducting 1/3 for personal expenses :-

2400 X 15 = 3,60,000/-

The learned tribunal has awarded an amount of Rs.2,88,000/- towards loss of dependency, thus the claimants are entitled for enhancement of amount of Rs.72,000/- for non pecuniary head of the compensation. The learned tribunal, has awarded an amount of Rs.12,000/- towards loss of consortium and life and affection, justifiably. In other words, appellants are entitled to seek enhancement of compensation to the tune of Rs.3,72,000/- in it's totality in this appeal, filed for enhancement in the amount of compensation."

9. Learned counsel for the Respondents relied on the Judgment reported in AIR 2008 S.C. Page 1221 : [2008 ALL SCR 696], A.P.S.R.T.C. and another Vs. M. Ramadevi and others. In this case the Apex Court held that after deducting 1/3 amount, remaining amount to be considered for determining the compensation. Head Note B of the Judgment reads as under :

"B. Motor Vehicles Act (59 of 1988), S.168- Accident - Claim for compensation - Deceased, bus driver, was 40 years of age - Monthly income taken at Rs.3000/-, after deducting 1/3 therefrom, annual contribution is fixed at Rs.24000/- - Multiplier of 10 adopted - Amount of Rs.20,000/- fixed for pecuniary damages and consortium - claimants thus, would be entitled to Rs.2,60,000/- - interest rate of 9% fixed by High Court, not interfered with."

10. Thus, it is to be noted that in all these Authorities, the Apex Court as well as High Court held that, at the time of calculating compensation, only 1/3 amount to be deducted for net contribution of the deceased towards his family. Considering the Authorities referred above, I hold that trial Court erred in coming to the conclusion that the deceased used to contribute only 1/3 of his salary to his family. It is admitted position that as per salary certificate Exhibit 36, deceased used to get Rs.1,856/- per month gross salary. After deducting the G.P.F. and other deductions, he used to get net amount of Rs.1,694/-. Therefore, 2/3 of Rs.1,694/- comes to Rs.1,130/-. The trial Court ought to have considered the sum of Rs.1,130/- as contribution of the deceased for the maintenance of his family. Considering the above mentioned Authorities, I hold that for calculating the compensation payable to the Respondents/original claimants, a sum of Rs.1,130/- to be taken as contribution of the deceased towards his family. Accordingly the Point No.1 is decided.

11. Learned counsel appearing for the Respondents/ original claimants submitted that the trial Court ought to have held that for calculating compensation, multiplier should be 17 years in the present case. He submitted that on the date of accident, the deceased was 27 years old. Considering the age of the deceased and age of his family members, the trial Court should have held that proper multiplier in the present case is 17 years. He further submitted that the trial Court on the basis of Judgment of the Apex Court in the matter of General Manager, Kerala State Road Transport Corporation Vs. Smt. Susamma Thomas decided on 6th January, 1993, wherein it is held that the maximum multiplier to be adopted is of 16 years. On the basis of the said decision of the Apex Court, the trial Court held that proper multiplier would be 15 years in the present case. Learned counsel for Respondents relied on the Apex Court Judgment reported in (1996)4 Supreme Court Cases 362, U.P. State Road Transport Corporation and others Vs. Trilok Chandra and others. In this case the Apex Court held that the multiplier varies from 5 to 18 depending upon the age group to which the victim belongs. Para 17 of the Judgment reads as under :

"17. The situation has now undergone a change with the enactment of the Motor Vehicles Act, 1988 as amended by Amendment Act 54 of 1994. The most important change introduced by the Amendment insofar as it relates to determination of compensation is the insertion of Sections 163-A and 163-B in Chapter XI entitled "Insurance of Motor Vehicles against Third Party Risks". Section 165-A begins with a non obstanted clause and provides for payment of compensation, as indicated in the second Schedule, to the legal representatives of the deceased, as the case may be. Now if we turn to the second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accident. The first column gives the age group of the victims of the accident. The second column indicates the multiplier and the subsequent horizontal figures indicates the quantum of compensation in thousand payable to the heirs of the deceased victim. According to the table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus, under this Schedule, the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case."

12. On the basis of this Authority, the learned counsel for the Respondents submitted that the trial Court ought to have held the multiplier of 17 years for calculating the compensation payable to the Respondents/original claimants.

13. On the other hand, learned A.G.P. appearing on behalf of the Appellants submitted that the trial Court correctly held that in the present case the multiplier should be 15 years only. Learned counsel pointed out that Authority cited by the learned counsel for Respondents reported in (1996)3 Supreme Court Cases 179, Sarla Dixit (Smt) and another Vs. Balwant Yadav and others, is useful in the present case. Learned A.G.P. submitted that the Apex Court in the matter of Sarla Dixit (supra) held that for 27 years deceased, 15 is proper multiplier. The Apex Court in this Authority held that :

"As the age of the deceased was 27 years and a few months at the time of his death, the proper multiplier in the light of the aforesaid decision of this Court in the case of G. M. Kerala Vs. S.R.T.C. would be 15."

14. In view of these observations of the Apex Court, learned A.G.P. submitted that the trial Court rightly held that in the present case, multiplier should be 15 years. Considering the submissions made by learned counsel for the Respondents as well as learned A.G.P. and considering the Apex Court Authority in the matter of Sarla Dixit (supra), I do not find any reason to interfere the finding of the trial Court about multiplier. Accordingly, Point No.2 for consideration is decided.

15. Learned counsel for Respondents submitted that the trial Court at the time of calculating the compensation, has not considered the future prospects of the deceased Rajendra Kenge. He submitted that the deceased was Engineer and he was working with Irrigation Department of State of Maharashtra for more than 6 to 8 years. He further submitted that considering the service record of deceased, the trial Court ought to have considered the future prospects of the deceased for determining the amount of compensation. He submitted that the Apex Court in the Judgment reported in (1996)3 Supreme Court Cases 179, Sarla Dixit (Smt) and another Vs. Balwant Yadav and others, held that future prospects of advancement in life and career should also sounded in terms of money at the time of fixing the compensation. He relied on Para 7 of the Judgment, which reads as under :

"7. So far as the adoption of the proper multiplier is concerned, it was observed that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While chance of the multiplier is determined by two factors, namely, the rate of interest appropriate to stable economy and the age of the deceased or of the claimant whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. All contingencies of the future not necessarily be baneful. Applying these principles to the facts of the case before this Court in need the aforesaid case it was observed that the deceased in that case was of 39 years of age. His income was Rs.1,032 per month. He was more or less on a stable job and considering the prospects of advancement in future career the proper higher estimate of monthly income of Rs.2,000 as a gross income to be taken as average future gross future income of the deceased and deducting at least 1/3 therefrom by way of personal expenses, had he survived the loss of dependency, could be capitalized by adopting the multiplicand of Rs.1,400 per month or Rs.17,000 per year and that figure could be capitalized by adopting multiplier of 12 which was appropriate to the age of the deceased being 39 and to that amount was added the conventional figure of Rs.15,000 by way of loss of consortium and loss of estate. Adopting the same scientific yard stick as laid down in the aforesaid Judgment, the computation of compensation in the present case can almost be subjected to a well settled mathematical formula. Deceased in the present case, as seen above, was earning gross salary of Rs.1,543 per month. Rounding it up to figure of Rs.1,500 and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderables like accidental death while discharging military duties and hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, i.e., upto Rs.3,000 per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average gross future monthly income could be arrived at by adding the actual gross income at the time of death, namely Rs.1,500 per month to the maximum which he would have otherwise got had he not died a premature death, i.e. , Rs.3,000 per month and dividing that figure by two. Thus, the average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500 divided by 2, i.e., Rs.2,200. Rs.2,000 per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread winner. From that gross monthly income at least 1/3 will have to be deducted by way of his personal expenses and other liabilities like payment of income tax etc. That would roughly work out to Rs.730/- per month but even taking a higher figure of Rs.750 per month and deducting the same by way of average personal expenses of the deceased from the average gross earning of Rs.2,200 per month balance of Rs.1,450 which can be rounded up to Rs.1,500 per month would have been the average amount available to the family of the deceased, i.e. , his dependents, namely, appellants herein. It is this figure which would be the datum figure per month which on annual basis would work out to Rs.18,000/-. Rs.18,000/- therefore would be the proper multiplicand which would be available for capitalization for computing the future economic loss suffered by the appellants on account of untimely death of the bread winner. As the age of the deceased was 27 years and a few months at the time of his death, the proper multiplier in the light of the aforesaid decision of this Court in G.M. Kerala S.R.T.C. would be 15. Rs.18,000/- multiplied by 15 will work out to Rs.2,70,000/-. To this figure will have to be added the conventional figure of Rs.15,000/- by way of loss of estate and consortium etc. That will lead to a total figure of Rs.2,85,000/-. This is the amount which the appellants would be entitled to get by way of compensation from respondents 1 and 2 subject to our decision on point no.2."

16. Learned counsel for the Respondents also relied on the Judgment reported in 2006(4) Mh.L.J. Page 161 : [2006(4) ALL MR 305], Kantabai w/o. Sureshchandra Doshi and others Vs. Ahmed Khan Chand Khan (deceased) by his LRs. Muktyarbi w/o. Ahmed Khan and others in which also the High Court held that future prospects of the deceased should be considered at the time of fixing the compensation.

17. On the other hand, learned A.G.P. appearing for the Appellants submitted that the Respondents failed to produce a single document on record to show future prospects of the deceased Rajendra Kenge. He further submitted that even PW-1 father of deceased nowhere stated in his evidence about the future prospects of the deceased. Therefore, for want of any material on record, it is not possible to consider the future prospects of the deceased. Learned A.G.P. further submitted that even the Respondents/original claimants failed to produce any documentary evidence on record to show that the deceased was appointed on permanent basis as Engineer in the Irrigation Department of State of Maharashtra. The Respondents failed to produce on record an appointment letter of deceased as Engineer in Irrigation Department.

18. It is thus clear that neither the Respondents/original claimants produced any documentary evidence on record to show that the deceased was appointed on permanent basis as Engineer in the Irrigation Department of State of Maharashtra nor the PW1 the father of the deceased stated anything about future prospects in his evidence. For want of evidence on record, it is not possible to consider the future prospects of deceased at the time of calculating the compensation payable to the Respondents/original claimants. Accordingly Point No.3 for consideration is decided.

19. Considering the above mentioned facts and circumstances in the present case, I hold that the deceased was contributing a sum of Rs.1,130/- per month to his family. Therefore, on the basis of contribution of Rs.1,130/-, the Respondents/original claimants are entitled a sum of Rs.2,03,400/- towards the compensation instead of Rs.1,03,900/- as awarded by the trial Court. Accordingly Point No.4 for consideration is decided and held that trial Court has not awarded compensation properly.

20. The trial Court awarded interest at the rate of 12% from the date of Application i.e. 10th July, 1989 till realisation of the amount. But considering the present trend of Banking transactions, I hold that the Respondents/original claimants are entitled interest at the rate of 7% per annum on enhanced compensation from 19th March, 1996, i.e. the date on which they filed Cross-Objection till realisation of the amount. In sum and substance, Respondents/original claimants are entitled 12% interest on enhanced compensation from 10th July, 1989 i.e. date on which Application filed by them for compensation, till 18th March, 1996, the date on which they filed Cross Objections in this Court, and from 19th March, 1996, Respondents are entitled 7% interest per annum on enhanced compensation till realisation of the amount. Therefore, the following Order :

O R D E R

i) First Appeal No.109 of 1995 filed by the State of Maharashtra is dismissed with no order as to the costs.

ii) Cross-Objection St. No.6197 of 1996 preferred by the Respondents/original claimants is partly allowed.

iii) Respondents/original claimants are entitled compensation in totality to the tune of Rs.2,03,400/-.

iv) Respondents/original claimants are entitled interest on enhanced compensation at the rate of 12% per annum from 10th July, 1989 till 18th March, 1996 (date of filing of Cross-Objection).

v) Respondents are entitled interest on enhanced compensation at the rate of 7% per annum from 19th March, 1996 till realisation of the amount.

vi) First Appeal is dismissed and Cross-Objections are partly allowed, accordingly.

vi) No order as to the costs.

Ordered accordingly.