2009(5) ALL MR 222
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.P. LAVANDE AND P.D. KODE, JJ.

Smt. Premlata Wd/O. Radheshyam Agrawal & Ors.Vs.Kalyansingh S/O. Bholaram Tomar & Ors.

First Appeal No.481 of 2004

30th April, 2009

Petitioner Counsel: Mr. A. S. MEHADIA
Respondent Counsel: Mr. S. M. UKE

Motor Vehicles Act (1988), S.168 - Claim of compensation - Though duty is bestowed upon Courts to award just and proper compensation, still the process of determining the compensation should not be in nature of giving bonanza for the claimants. AIR 2007 SC (Supp) 19 and 2006(4) ALL MR (S.C.) 92 - Ref. to. (Para 13)

Cases Cited:
New India Assurance Co. Ltd. Vs. Charlie, (2005)10 SCC 7206 [Para 6,9,10]
Managing Director, TNSTC Vs. Sripriya, AIR 2007 SC (Supp) 19 [Para 12]
Bijoy Kumar Dugar Vs. Bidyadhar Dutta, 2006(4) ALL MR 92 (S.C.)=AIR 2006 SC 1255 [Para 12,14]


JUDGMENT

P. D. KODE, J.:- By present appeal on the count of inadequacy of compensation granted legal heirs i.e. wife, children and mother of one deceased Radheshyam Agarwal has challenged the award dated 6th November, 1998 passed by Motor Accident Claims Tribunal, Amravati in Claim Petition No.54 of 1995 preferred by them awarding compensation only to the tune of Rs.4,36,160/- (inclusive of interim compensation of Rs.25,000/- on the count of no fault liability) along with interest thereon @ 10% P.A. from the date of the petition. The said claimants had staked a claim of compensation of Rs.11,00,000/- before the Tribunal.

2. It was case of claimants that deceased at the time of death i.e. on 5.10.1994 was of aged 37 years and was then earning yearly income of Rs.55,000/- from his business of selling electrical goods and spare parts and so also of construction.

3. The deceased on 4.10.1994 while returning to Walegaon from Amravati on Scooter bearing registration No.MH-27-B-2502 and while being at K.M. Stone No.8 on Amravati - Walegaon Road at about 11 p.m. had collision with truck bearing registration No.MH-06-4971 owned by respondent no.1, insured with respondent no.3 and then driven by respondent no.2, in a high speed and in rash and negligent manner coming in the opposite direction. The said truck after the collision had ran over the scooter and proceeded further with the deceased and the scooter below the truck. The deceased taken by Police on night duty for treatment to General Hospital at Amravati had succumbed to death on 5.10.1994 at 1.30 a.m..

4. In support of the claim staked, the appellant no.1 had given the evidence at Exh.43 amongst other relevant matters, regarding age of deceased then being of 37 years, himself then earning income of Rs.4,500/- and himself being income tax payer. She has also produced the statement of his income tax at Exh.40 and the income tax assessment order at Exh.41 and the other documentary evidence in support of her claim. Two more witnesses namely one Anandswarup Chaturbhuj Poorwar in connection with the business of the deceased and one Naval Kishore Bang who had visited the spot at which accident had occurred, were also examined on behalf of claimants. The claim has proceeded ex parte against respondent no.1 and 2 due to their failure to appear and same was contested by respondent no.3.

5. Upon the assessment of the evidence, the Tribunal had come to conclusion of the deceased having died in a motor accident occurred due to 80% negligence of respondent no.2 and 20 % that of deceased. The Tribunal had come to conclusion of monthly income of the deceased being Rs.5,000/- and after deducting his personal expenses, himself would be contributing Rs.3300/- towards his family. Thus the Tribunal has assessed yearly dependency of claimants being of Rs.39,600/-. Tribunal thereafter having regard to the age of the deceased being 37 years had applied multiplier of 12, had assessed net loss in income occurred to the claimants being Rs.4,75,200/-. By adding to the said assessed, additional amount of Rs.30,000/- on the count of loss of consortium and further amount of Rs.30,000/- on the count of loss of parental love and affection to respondents nos.2 to 4 and further amount of Rs.10,000/- for consortium to appellant no.5 having regard to her advanced age of 80 years; Tribunal had come to conclusion of net amount of compensation being Rs.5,45,200/-. Thereafter having regard to the liability of the respondents being determined at 80 % upon the said basis, the Tribunal has awarded 80% of the said sum i.e. the compensation with interest to the appellants as described in commencing part of this judgment.

6. Mr. A. S. Mehadia, learned counsel for the appellants has urged that the Claims Tribunal had committed an error in deducting 1/3rd from the income of the deceased while assessing the loss sustained by the appellants. It is the submission of the learned counsel that the Claims Tribunal had overlooked fact of the deceased maintaining family of five persons and as such Tribunal ought not have deducted 1/3rd of his income as an amount which would have been expected to have spent by him upon himself. By making a reference to the decision in a case of New India Assurance Company Ltd. Vs. Charlie and another reported in (2005)10 SCC 720, it was urged that the age of the deceased being 37 years, higher multiplier as applied in the said case should have been applied by the Tribunal. It was urged that the at least the multiplier of 16 to 17 should have been applied by Tribunal while arriving at just compensation to which the appellants were entitled. The learned counsel had further contended that all the said errors had resulted in reducing assessing the just compensation to which the appellants were entitled. The learned counsel urged that furthermore the Tribunal having erroneously come to the conclusion of the deceased being also guilty of 20% contributory negligence and thus further erred in reducing the amount of compensation by such an extent. It was further urged that Tribunal had also awarded the interest at much lower rate and at least on the said count by awarding the higher rate of interest the appellants would be entitled to higher amount of compensation.

7. All these submissions were counter veiled by the learned counsel for respondent no.3 by submitting that (1) the Tribunal having rightly deducted an amount of 1/3rd of the income of the deceased while computing the net loss caused to the appellant as hardly any evidence was placed before the Tribunal for not making such a deduction on the count of deceased having not spent such amount on himself or having spent more than 2/3rd of the amount of his income upon his dependents; (2) the multiplier applied by the Tribunal being just and fair and there being no worthy reason for interfering with the same; (3) Tribunal having not excluded the income of a house property while assessing the monthly income of the deceased hardly there being any scope of enhancing the compensation as prayed by the appellants, (4) the reasoning given by the Tribunal being based upon the evidence on the record and the Tribunal having already made a concession regarding the aspect of contributory negligence of the deceased by holding the same being only of 20% in spite of the accident having occurred on account of head on collision and thus warranting to hold of same having occurred due to 50% of the contributory negligence to the deceased and there being absolutely no room for coming to the conclusion of the accident having occurred due to cent percent negligence of the respondent no.2 and (5) Similarly no evidence being placed before the Court for coming to the conclusion of the rate at which the interest was awarded by the Tribunal being erroneous, improper or perverse, the said finding would not warrant any interference. Thus the learned advocate for respondent no.3 has vehemently contended that considering all the said aspects, the appeal preferred by the appellants deserves to be dismissed and hence the same may be dismissed.

8. After carefully examining the record and proceedings of the Tribunal in light of submissions canvassed by the parties, the only point which arises for consideration is whether compensation arrived at and awarded by the Tribunal is just and proper or the same requires to be enhanced.

9. After taking into consideration the evidence adduced on behalf of appellants and particularly oral evidence of appellant no.1 and the same not disclosing of herself having precisely deposed about the amount spent by the deceased during his life time upon his family or precisely the amount spent by the deceased upon himself, we find not merit in the submission of learned counsel for appellants of Tribunal having committed any error by deducting 1/3rd of an amount while assessing the dependency of the claimants and/or loss occurred to them. Needless to add that even accepting the observation made in para 6 of the decision pointed out by learned counsel for the appellants in case of New India Assurance Co. Ltd. (supra) to the effect :

"as to what would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula by universal application. It would depend upon the circumstances of each case. In the instant case the claimant was nearly 37 years of age and was married. Therefore, as rightly contended by learned counsel for the appellant, 1/3rd deduction has to be made for personal expenditure."

We are unable to accept the submission of learned counsel for the appellants of any error being committed by the Tribunal while deducting 1/3rd of an income while computing the loss caused to the appellants. At the cost of repetition, we may add that in absence of any evidence of the deceased spending either less than 1/3rd of his income upon himself or more than 2/3rd of his come upon his dependents, the deduction made at the rate of 1/3rd by the Tribunal cannot be faulted. Needless to add that hence we find all the merit in the submissions canvassed in this regard by the learned counsel for respondent no.3.

10. Now with regard to the rival contentions regarding invoking of the multiplier for applying the same to the multiplicand determined and after carefully considering the decision in the case of New India Assurance Co. Ltd. relied by learned counsel for the appellants, we are unable to persuade ourselves that the higher multiplier than 12 should have been applied in the instant case by the Tribunal while computing net loss of income occurred to the appellants. We are of such an opinion as in a case of Charlie (supra) relied by the appellants, the claim for compensation was made by injured (and not by the heirs of the deceased) and having regard to the nature of permanent disability suffered by him and his income being on lower side i.e. Rs.18,000/- per year, the multiplier of 16 was applied. Thus the said decision relied considered in proper perspective in the light of the reasons given in the said case cannot be said to be of any assistance to the appellants for advancing their case for applying higher multiplier than applied by Tribunal.

11. Having due regard to the observations made by the Apex Court from time to time in various decisions that the second schedule provided in Motor Vehicles Act is to be mainly used for assessing compensation in claims preferred under Section 163-A of the Act and for claims preferred under other provisions of the Act i.e. precisely for claims preferred under Section 166 of the said Act the said Schedule of the matters therein are to be used only by way of guidelines and for such a claims multiplier is to be determined by giving due regard to all relevant circumstances connected with relevant claim/case; we are unable to accept the submission canvassed by learned counsel for the appellants that on the basis of the said Schedule at least the multiplier of 16 should be applied for computing net loss of income occurred to the appellants.

12. In the said context the decision in a case of Managing Director, TNSTC Vs. Sripriya and ors. reported in AIR 2007 SC (Supp) 19, wherein for the age of the deceased of 37 years reveals that multiplier of 12 was applied, while the decision in a case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and ors. reported in AIR 2006 Supreme Court 1255 : [2006(4) ALL MR 92 (S.C.)] wherein for the deceased of age of 24 years, the multiplier of 12 was applied having regard to the fact of the claimants being father and mother. Both the said decisions pointed out by learned counsel for respondent no.3, are sufficient to repel the contrary submissions canvassed by learned counsel for the appellants. Needless to add that the said decision also fortifies the submission made by learned counsel for respondent no.3 of just and fair multiplier being applied by the Tribunal.

13. Thus considering all the aspects relevant to the deceased i.e. his age being of 37 years, though Tribunal had taken into consideration his income from house property while assessing his monthly income apart from the fact of there being no evidence for loss of the said income to the appellants, ages of appellants 1 to 4, the period for which they could be said to be dependent upon the deceased and so also the age of appellant no.5 being 83 years, we find absolutely no error being committed by the Tribunal in applying the multiplier of 12 also having regard to the fact that though duty is bestowed upon the Courts to award just and proper compensation, still the process of determining the compensation should not be in the nature of giving bonanza for the claimants.

14. Similarly after taking into consideration evidence pertaining to the accident placed before the Tribunal, the same being of a circumstantial nature in view of there being absence of evidence of any eye-witness for accident in question and hence the matters flowing from the spot panchanama at Exh.37 being of immense importance and the reasoning about the same recorded by the Tribunal in para 15 of the judgment and the same amongst other clearly revealing of due regard being given to the fact that the accident had taken place at the middle of the road as denoted by the same, the fact of the deceased was not driving his scooter from extreme left side of the road and in spite of the settled legal position of generally in cases of accident involving head on collision, driver of both the vehicles are to be held guilty of 50% negligence, as pointed out by learned counsel for respondent no.3 from para no.12 of the decision in a case of Bijoy Kumar Dugar, [2006(4) ALL MR 92 (S.C.)] (supra), the Tribunal having attributed only 20% negligence to the deceased, makes us unable to find any fault with such a finding arrived at by the Tribunal. Needless to add that after considering the relevant evidence in proper perspective, we are unable to persuade ourselves to accept the submission of learned counsel for the appellants of the error being committed by the Tribunal of holding deceased responsible only for 20% contributory negligence. In the same context though learned counsel for the appellants has tried to canvass on the basis of the said decision the Tribunal ought to have held that the deceased being also responsible for 50% of contributory negligence, we are unable to give any credence to the said submission having regard to the facet of the sizes of the vehicles involved in the accident and the higher duty being cast upon the respondent no.2 who was driving a heavy transport vehicle i.e. truck.

15. In the aforesaid premises, having concluded that no error being committed by the Tribunal by deducting 1/3rd of an income or by applying multiplier of 12 and reducing the compensation by 20% in view of deceased being found to be responsible for 20% contributory negligence would automatically lead to the conclusion of no error being committed by the Tribunal while arriving at a compensation to which the appellants/claimants are found to be entitled by the Tribunal.

16. Similarly considering the fact that hardly any evidence was placed before the Tribunal regarding the rates of interest which were prevailing in the year 1994 and also having regard to the fact of the Tribunal having taken into consideration the income of a house property while determining multiplicand, we find no worthy reason for interfering with the rate at which interest has been awarded by the Tribunal.

17. Incidentally we observe that while considering the reasoning given by the Tribunal while awarding the compensation of Rs.10,000/- to appellant no.5 of having observed of herself being entitled for compensation on the count having suffered mental and physical pain in addition to the loss of support and herself being given a compensation amount of Rs.10,000/- for loss of consortium, we feel it necessary to record that though we are upholding grant of such compensation to her for loss of companionship at advance age, we do not approve the observation made by the Tribunal of herself being entitled for such a compensation either on the count of having suffered mental and physical pain or consortium as compensation on earlier count can be awarded only for a victim and to the spouse. At any rate considering the age of appellant no.5 and the amount of compensation awarded on the relevant count being not excessive and being reasonable on the count for which she is entitled would not warrant any interference from us for the erroneous observation made by the Tribunal.

18. Thus having come to the conclusion that no serious error being committed by the Tribunal while determining the compensation for which the appellants are entitled, the compensation awarded by the Tribunal cannot be said to be inadequate and as such there being no merit in the appeal, the same deserves to be dismissed and is dismissed accordingly with no order as to costs.

Appeal dismissed.