2009(4) ALL MR 767
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. LAVANDE AND P.D. KODE, JJ.
Smt. Chhabutai Wd/O. Sanjay Tupatkar & Ors.Vs.Govind S/O. Harishchandra Wasnik & Ors.
First Appeal No.12 of 2004
30th April, 2009
Petitioner Counsel: Mr. M. R. PILLAI
Respondent Counsel: Mr. B. B. RAIPURE
(A) Motor Vehicles Act (1988), Ss.163A, 168 - Compensation - Fatal accident - Right to receive compensation - Held, since right to receive compensation being germane to the loss actually occurred due to the death mere fact of occurring of death without a particular claimant being dependent upon the deceased being established would not entitle such a claimant to receive compensation. 2007(1) T.A.C. 21 (M.P.) - Ref. to. (Para 27)
(B) Motor Vehicles Act (1988), Sch.II and S.163A - Claim of compensation - Multiplier - Held, second schedule provided under the Motor Vehicles Act provides for the claims preferred under S.163-A of - For claims preferred under other provisions of the Act the matters from the said schedule are to be used only by way of guidelines. (Para 29)
Sarla Dixit Vs. Balwant Yadav, 1996 ACJ 581 [Para 15]
National Insurance Co. Ltd. Vs. Indira Shrivastava, (2008)2 SCC 763 [Para 16]
National Insurance Co. Ltd. Vs. Swaranalata Das, 1993 ACJ 748 [Para 17]
Asha Vs. United India Insurance Co. Ltd., 2004 ACJ 448 [Para 17]
New India Insurance Co. Ltd. Vs. Smt. Saroj, 2007(1) T.A.C. 21 (M.P.) [Para 17]
P. D. KODE, J.:- By this appeal appellants on ground of inadequacy of compensation awarded have taken exception to judgment and order dated 5.9.2002 passed by Member of Motor Accident Claim Tribunal, Amravati in Claim Petition No.254/1996 partly allowing their claim of compensation to tune of Rs.7,70,000/- (inclusive of no fault liability amount) with interest thereon at the rate of 9% per annum from the date of petition till realization of the said amount, out of claim of Rs.12,00,000/- preferred by them and have prayed for enhanced compensation of Rs.4,30,000/- with 18% thereon from the date of petition preferred by them.
2. Sanjay Tupatkar, husband of appellant no.1 and father of appellant nos.2 to 4 had died in an accident occurred on 20.7.1996 while he was proceeding from Amravati side to Badnera S.T. Stand on National Highway No.6 near Police Station Chowk, Badnera on Scooter bearing No.MZR-5457 driven by his friend Sudarshan.
3. The said accident had occurred due to Luxury Bus bearing registration No.MH-35-449 owned by respondent no.2 and insured with respondent no.3 and driven in rash and negligent manner by respondent no.1 and coming in the opposite direction in process of overtaking vehicles having been on wrong side and having dashed scooter with result of throwing away Sanjay and Sudarshan travelling on scooter and thereafter having ran over them. Even thereafter respondent no.1 while moving the bus in reverse direction had again ran the bus over them. As a result thereof Sanjay and Sudarshan had died on the spot.
4. The claimants, in support of their claim, had examined appellant no.1 at Exh.34 and one more witness Sudam Shivaji Khandre from Panchayat Samiti, Nandgaon at Exh.36 for proving the salary certificate of the deceased Sanjay for the month of July-1996. The appellants/claimants had also placed on record documents prepared by Police during investigation carried out regarding accident occurred.
5. Respondent no.2, having not appeared in the proceeding and contested the claim, Tribunal had granted leave under Section 170 of the Motor Vehicles Act to respondent no.3, upon their application, made for such a purpose. However, respondent no.3 had not adduced any separate oral or documentary evidence while defending them.
6. Tribunal, after assessment of evidence adduced, had come to conclusion of deceased having met with death due to rash and negligent driving of respondent no.1, respondent no.3 having not established of deceased Sanjay driving the scooter, as alleged by them and thus no act on part of deceased Sanjay having contributed for occurring of accident in question and petitioner being entitled to receive compensation from respondent nos.1 to 3 to the tune as stated earlier.
7. The tribunal, while determining the compensation, had awarded compensation of Rs.40,000/- to the appellants on the count of having suffered mental agony and loss of the company and additional compensation of Rs.5,000/- for the funeral charges and further compensation of Rs.5,000/- to the appellant no.1 on the count of consortium.
8. Tribunal had assessed income of deceased being Rs.5,000/- per month for the calculation after taking into consideration his monthly income as disclosed from salary certificate at Exh.37 and by way of future prospects in service same having reached to the tune of Rs.10,000/- and thus by adding both the said amounts had assessed average gross monthly income of the deceased for the purposes of assessing dependency being Rs.7,500/-.
9. Taking into consideration the fact of appellant no.1 having got job in the same department in which deceased was working within eight days after accident, herself having applied for job during life of deceased, Tribunal has found fit to deduct an amount of Rs.3,500/- instead of deducting only 1/3rd income of deceased i.e. Rs.2,500/- for calculating monthly dependency of appellant nos.2 to 4.
10. After assessing monthly dependency of appellant nos.2 to 4 at monthly rate of Rs.4,000/- and thus annually at Rs.48,000/- and the Tribunal assessed loss of income suffered by appellant nos.2 to 4 of being Rs.7,20,000/- and by adding compensation determined earlier for other heads has awarded a net compensation of Rs.7,70,000/- to the appellants.
(a) in assessing average gross monthly salary of deceased being Rs.7,500/- after taking into consideration his future prospect in service instead of assessing the same at Rs.10,000/- per month,
(b) in applying multiplier of 15 on the basis of structural formula and ought to have applied the multiplier of 17 having regard to fact that deceased had died at the age 33,
(c) by deducting an amount of Rs.3,500/- while deducting 1/3rd of income for the self expenses of deceased instead of Rs.2,500/- on the basis of monthly income of Rs.7,500/- assessed by the Tribunal.
12. The learned counsel for the appellants thus contended that on the basis of the monthly income of the deceased Rs.10,000/- after deducting the personal expenses, the tribunal should have assessed monthly dependency at Rs.6,666/- and consequently annual dependency being Rs.79,992/- and applying the multiplier of 17 should have arrived loss of yearly income being Rs.13,59,864/-. Tribunal, thereafter, adding compensation Rs.40,000/- and Rs.5,000/- respectively for mental pains suffered by the appellants and the expenses incurred upon the funeral to the said loss in income assessed should have concluded of the appellants being entitled for compensation of Rs.14,04,864/-. He, therefore, contended that compensation awarded deserves to be enhanced to the tune as prayed in appeal as the appellants have restricted their claim in spite of themselves being entitled to the compensation to the tune of Rs.14,04,864/-.
(a) erred in fixing gross income of the deceased being Rs.10,000/- without there being any cogent basis for the same and thus erred in working out the compensation on the said basis.
(b) erred by adding the compensation of Rs.40,000/- towards the consortium and loss of companionship etc..
(c) ought to have assessed the salary of deceased being Rs.4,459/- per month and by deducting 1/3rd of the same required for his expenses, it should have arrived that deceased could have been spending only an amount of Rs.2,973/- upon the appellants,
(d) by applying the multiplier of 17 should have assessed loss of income occurred to the appellants being Rs.6,06,492/- and by adding amount of Rs.5,000/-, Rs.2,500/- & Rs.2,000/- to the said amount by way of compensation for consortium, loss of estate and funeral expenses should have arrived at the appellants being entitled for the compensation of Rs.6,15,992/-.
(e) thus higher compensation awarded by the tribunal is exorbitant and without any basis and hence the appeal preferred for enhancement of the same as sought by the appellants deserves to be dismissed.
15. After perusing the record and proceeding in the light of the submissions advanced by rival parties and considering the ratio of the decision of the Hon'ble Apex Court in the case of Sarla Dixit and another Vs. Balwant Yadav and others, 1996 ACJ 581, though we find merit in the submission of the learned counsel for the appellants that while determining the gross monthly income of the deceased whose earning was by way of salary in service, the aspect of future prospects in service is required to be taken into consideration, still after carefully considering evidence adduced on the record i.e. that of his wife appellant no.1 and CW 2 Sudam, we do not find any merit in the submission of the learned counsel for the appellants of tribunal having committed serious error by not assessing gross monthly income of the deceased at the rate of Rs.10,000/- per month. We are of such a opinion as though the relevant aspect is to be taken into consideration, hardly any cogent evidence has been placed on the record by appellants enabling the tribunal for coming to such a conclusion.
16. In the said context the reference to the salary certificate at Exh.37 disclosing salary of the deceased being Rs.5,041/- and the same not denoting any deductions and allowances added to the basic salary i.e. dearness allowance and house rent allowance and being of nature liable to be deducted while assessing gross income of the deceased, the Tribunal cannot be said to have committed any error in assessing the gross monthly salary of the deceased being Rs.5,000/- by rounding off the said figure, we are of such a view after taking into consideration true import of decision in a case of National Insurance Company Limited Vs. Indira Shrivastava and others, reported in (2008)2 SCC 763 relied by learned counsel for the appellants which amongst other reveals that the deductions effected unlikely to revert back to the deceased or his family members being not liable to be excluded.
17. Similarly Tribunal having taken net salary into consideration while assessing gross monthly income of the deceased, we find it wholly unnecessary to make any further dilation about aspect of deductions required to be excluded or about the decision to effect of net salary is to be taken into consideration relied by learned counsel for respondent no.3 i.e. the decisions of Apex Court in the cases of National Insurance Company Limited Vs. Swaranalata Das and others, reported in 1993 ACJ 748; Asha and others Vs. United India Insurance Company Limited and another, reported in 2004 ACJ 448 and decision of Madhya Pradesh High Court in a case of New India Insurance Company Limited Vs. Smt. Saroj and others, reported in 2007(1) T.A.C. 21 (M.P.).
18. In the same context and after taking into consideration the nature of the allowances added to the basic salary of the deceased and as disclosed by salary slip Exh.37, we are unable to accept the submissions of the learned counsel for respondent no.3 that the tribunal ought to have held the salary of the deceased being Rs.4,459/-.
19. Now in the context of the aspect of the future prospects of the deceased being required to be taken into consideration while assessing the gross average monthly income of the deceased for computing the loss occurred to the appellant, considering the evidence of appellant no.1 and Sudam led by the appellants and the same not transcending beyond making bald claim of appellant no.1 of deceased would have got salary of Rs.8,500/- per month as received by her and that of Sudam that salary of deceased would have been Rs.7,500/-, we are unable to accept said evidence, which is not found to have been supported by any other documentary evidence being sufficient to establish that on the date of their evidence i.e. in the year 2002 the income/salary of the deceased would have been to magnitude as claimed by each of them.
20. Similarly we are unable to accept their evidence regarding the relevant respect on the bare assertion of Fifth Pay Commission being made applicable to the Zilla Parishad teacher as such matter is required to be established by leading cogent, oral or documentary evidence, cannot be said to have been established by their oral uncorroborated evidence. Apart from the aspect of the appellants having not lead any cogent evidence as to what would have been the salary of the deceased at the time of the retirement, we are unable to accept the conclusions drawn by the Tribunal that the deceased would have reached the maximum salary of Rs.10,000/- per month had he not died premature death. Such a conclusion arrived at by the tribunal being dehors the evidence on record cannot be accepted.
21. Thus, though the Tribunal while making further assessment of salary or loss in income occurred has correctly applied the formula explained by the decision in case of Sarla Dixit referred earlier and relied upon by the learned counsel for the appellants, still the base on which same was calculated i.e. assuming the maximum salary to which deceased ought to have reached being Rs.10,000/- being without any basis, the conclusion arrived on the said basis of gross monthly average income of the deceased would have been Rs.5,000/- + Rs.10,000/- divided by 2 being Rs.7500/- clearly appears to be preposterous.
22. By the aforesaid, we do not intend to convey that the aspect of a future prospects is not required to be taken into consideration but we only intend to convey that the Apex Court in the decision relied on by the learned counsel for the appellants, has assessed the same on the basis of evidence adduced in the relevant case. Needless to add that such evidence being not placed before the tribunal by the appellants and the learned counsel for the appellants having not pointed out any other evidence for coming to the conclusion of gross average salary of the deceased should have been taken as Rs.10,000/- per month, the income of deceased for the purpose of calculations cannot be taken to be such tune on such speculative basis.
23. In the same context we also do not accept the submission of the learned counsel for respondent no.3 that the assessment should be made on the basis of the average gross income of the deceased being Rs.5,000/-. Considering the evidence of appellant no.1 and that of PW 2 regarding the deceased being employed as a teacher in Zilla Parishad, the salary to such a teacher is payable as per State financial rules, there was possibility of getting annual increment in such a service etc. Accepting the salary of the deceased at the time of his death i.e. as disclosed by Exh.34 as a basis for assessing gross annual income of the deceased would be altogether ignoring the aspect of future prospects.
24. As a result of the aforesaid discussion and considering the nature of the services in which the deceased was engaged and the reasonable prospects of himself receiving higher salary, we are of the opinion that the same might have reached to the tune of Rs.8,000/- per month. Thus on the said basis his average monthly gross salary could be assessed to have been Rs.5,000/- + Rs.8,000/- divided by 2 i.e. = Rs.6,500/-. Thus, on the said basis his gross annual income would have been Rs.6,500/- x 12 = Rs.78,000/-.
25. Now considering the question of assessing the dependency of the appellants who were entitled for compensation on account of death and the grievance made by the learned counsel for the appellants of the tribunal having deducted an amount of Rs.3,500/- instead of Rs.2,500/- due to his salary being assessed by Tribunal of being Rs.7,500/- per month, we are unable to agree to error being committed by the Tribunal by making such deductions though we have already reached the conclusion of assessment of Rs.7,500/- as monthly salary being erroneous.
26. We are of such a view after considering the reasons recorded by the Tribunal in the said respect which clearly implies that while assessing the dependency the Tribunal had excluded dependency of appellant no.1 while assessing the loss caused by the death and thus has assessed the loss caused or dependency of only appellant nos.2 to 4. The said reasoning clearly reveals that while making the deductions the Tribunal had deducted 1/3rd of income on the count of the income which would have been spent by the deceased for himself. The reasoning given by the Tribunal also impliedly reveals of an amount of Rs.1,000/- being deducted probably due to the dependency of appellant no.1 in view of herself having received the service and also receiving a family pension as surfaced on the record during the cross-examination.
27. Since right to receive compensation being germane to the loss actually occurred due to the death mere fact of occurring of death without a particular claimant being dependent upon the deceased being established would not entitled such a claimant to receive compensation. Thus the fact of appellant no.1 having received the service and also receiving a family pension fully denoting of herself having not suffered of financial loss due to death of deceased, the act of Tribunal in deducting additional amount of Rs.1,000/- from the salary of deceased and/or deducting a sum on such a count cannot be regarded as a error committed by the Tribunal.
28. Thus on the basis of aforesaid while assessing loss caused to appellant nos.2 to 4 due to death of deceased and/or assessing their dependency it would be necessary to deduct 1/3rd amount of yearly income of the deceased of Rs.78,000/- i.e. the amount which would have been spent by the deceased upon himself the amount would be Rs.52,000/-. In view of appellant no.1 having not remained dependent upon the deceased soon after eight days after accident, the reasonable amount which deceased would have been spending upon her during his lifetime would be required to be excluded. Taking into consideration all the relevant circumstances connected with the said aspect i.e. salary of deceased, lifestyle expected to have by wife of such a salaried person etc. we are of the view that deduction of Rs.12,000/- per year on the said count would be proper. Thus deducting the said amount of Rs.12,000/- the amount which would have been expected to have been spent by the deceased upon the appellants no.2 to 4 would have been Rs.40,000/-. Needless to add the same will be a proper multiplicand for yearly loss occurred to appellant nos.2 to 4 due to the death of the deceased.
29. Now reverting to the question of determining the multiplier to be applied for calculating the loss sustained by the appellants, it is settled legal position that the second schedule provided under the Motor Vehicles Act predominately provides for the claims preferred under Section 163 of the Motor Vehicles Act and for claims preferred under other provisions of the M.V. Act the matters from the said schedule are to be used only by way of guidelines only. A catena of decisions given by the apex court regarding the application of a multiplier lay down that the same is to be determined by having regard to the relevant facts and circumstances of each case and in numerous decisions the Apex Court has ruled that in India the highest multiplier of 16 is to be applied for the age group of 21 to 25 and lowest of 5 for a person of age group 65 to 70. Having regard to the aspect of appellant no.1 having secured a service, ages of appellant nos.2, 3 and 4 and the probable period of their dependency upon the deceased in event he would have survived, we do not find any error being committed by the tribunal by applying the multiplier of 15. In the same context we may not hasten to add that considering the purpose for which the multiplier method is invoked in spite of the same also involving some speculative element though least than the other methods still having regard to the said factor the marginal error if any in applying the multiplier also cannot be regarded as an error causing injustice being committed by Tribunal by applying multiplier of 15 instead of 16 or 17.
30. Apart from the aforesaid even after applying multiplier of 17 as contended by the learned counsel for the appellants to the multiplicand of Rs.40,000/- assessed earlier the loss of an income caused to the appellants would be Rs.40,000 x 17 = Rs.6,80,000/-.
31. Though the appellants in addition to the aforesaid loss of income being also entitled for a compensation for consortium, loss of companionship, loss of estate etc. after considering the reasons given by the tribunal, we feel that granting compensation at the rate of Rs.40,000/- on the said count does not seem to be proper and a compensation of Rs.20,000/- for such a heads would be proper after considering the relevant matters from second scheduled of M.V. Act by way of guideline. Thus, adding such sum to the compensation arrived earlier, the appellants can be said to be entitled for a net compensation of Rs.7,00,000/-.
32. In view of assessment of compensation for the reasons given here-in-above we are of considered opinion that just and proper compensation for the appellants being Rs.7,00,000/- and Tribunal having granted total compensation of Rs.7,70,000/- we do not find any merit in appeal preferred by appellants for the enhancement of compensation. Though it is true that compensation at which we had arrived is the less than the one which is awarded by the tribunal still respondent no.3 having not preferred any appeal, we are unable to interfere with the award in the absence of any challenge.