First Appeal No.299 of 2005

9th June, 2017.

Petitioner Counsel: Shri S.N. KUMAR
Respondent Counsel: Smt. ANITA MATEGAONKAR

Cases Cited:
Shashikala and others Vs. Gangalakshmamma and another, 2015 ACJ 1239 [Para 5,9]
Rajesh & ors. Vs. Rajbir Singh & ors., 2014 ALL SCR 2434=2013 ACJ 1403 [Para 8]
Kalpanaraj and others Vs. Tamil Nadu State Transport Corporation, 2014(4) ALL MR 896 (S.C.)=(2015) 2 SCC 764 [Para 8]
Neeta w/o. Kallappa Kadolkar and others Vs. Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, 2016(1) ALL MR 508 (S.C.)=(2015) 3 SCC 590 [Para 8]
Jiju Kuruvila and others Vs. Kunjujamma Mohan and others, 2013(4) ALL MR 946 (S.C.)=(2013) 9 SCC 166 [Para 8]
Chanderi Devi and another Vs. Jaspal Singh and others, 2015 ALL SCR 1788=(2015) 11 SCC 703 [Para 8]
Sandhya Rani Debbarma and others Vs. The National Insurance Company Ltd., and another, 2016 (8) SCALE 820 [Para 8]
Sarla Varma Vs. Delhi Transport Corporation, 2009(4) ALL MR 429 (S.C.)=(2009) 6 SCC 12 [Para 9]

JUDGMENT

JUDGMENT :- This is an appeal preferred by the claimants seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No.482/1997 by judgment and order dated 1.4.2004.

2. The appellant No.1 is the widow of deceased Bhagwandas and appellant Nos.2 to 5 are the children of deceased Bhagwandas. Deceased Bhagwandas was travelling by a Maruti Car on 31.7.1996 along with some other persons. He had gone to Rajnandgaon, State of Madhya Pradesh for attending the marriage and was returning to Nagpur by Maruti Car bearing registration No.MP-04-J-4607. As his car came near village Sundara on Rajnandgaon-Nagpur road one Matador bearing registration No.MP-24-9581 approaching from the opposite direction suddenly appeared before the Maruti car and there was a head on collusion between the two vehicles. This was at about 1.15 p.m. of 31.7.1996. The deceased sustained serious injuries and was admitted to Bhilai Hospital for treatment of the injuries. However, he succumbed to those injuries on 3rd August, 1996. Last rites were performed on the deceased at Nagpur. The appellants being the legal heirs of the deceased and having suffered incalculable loss owing to death of their bread earner preferred a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation. On merits of the case, the petition was allowed by the Tribunal and total compensation of Rs.2,77,200/- inclusive of amount of no fault liability was awarded by the Tribunal by its judgment and order on 1.4.2004. As the appellant felt that several heads of nonpecuniary damages as well as salary of Rs.3,000/- per month were not considered by the Tribunal, the appellants preferred the present appeal.

3. I have heard Shri S.N. Kumar, learned counsel for the appellant. Shri Paunikar, learned counsel for the respondent No.2 and Smt. Anita Mategaonkar, learned counsel for respondent No.4. None has appeared on behalf of respondent Nos.1 and 2. I have gone through the record of the case including the impugned judgment and order.

4. Relying upon the law settled by the Hon'ble Apex Court in its various judgments of the years 2009, 2013, 2015 and 2016 the learned counsel for the appellant has contended that non pecuniary damages ought to have been awarded at the rates fixed by the Hon'ble Apex Court in its various judgments. He also submits that there was no warrant for the Tribunal to determine the monthly salary of the deceased to be at Rs.2,500/-, when the evidence overwhelmingly showed that his monthly salary was of Rs.3,000/- per month and when the Tribunal also accepted the evidence relating to employment and monthly salary of the deceased tendered by PW 1 and PW 2 as reliable. He further submits that the interest on the compensation should have been granted at the rate of 9% p.a.

5. Learned counsel for respondent Nos.2 and 4 opposing the claim made in this appeal submits that the facts and circumstances of the cases relied upon by the appellants were quite different and, therefore, same criteria could not be adopted for determining the compensation to be paid to the appellants on the various nonpecuniary heads. They also submit that the accident in the instant case took place in the year 1996 and whereas the Hon'ble Apex Court's Judgment came much later and, therefore, the principles settled by the Hon'ble Apex Court would not be of any application to the facts of the instant case. Shri Paunikar, learned counsel for respondent No.2, in particular, submits that the issue of payment of compensation on account of future prospects is still open to debate as it has been referred to a larger Bench by the two judges Bench of the Hon'ble Apex Court in the case of Shashikala and others vs Gangalakshmamma and another, reported in 2015 ACJ 1239.

6. The contentions of both sides would raise the following points for determination :

i) Whether the income of the deceased has been properly determined by the Tribunal ?

ii) Whether the rates of compensation given for nonpecuniary heads by the Tribunal are proper ?

iii) Whether the amount of compensation deserves to be enhanced ?

As to Point No.1. :

7. On going through the evidence available on record and also the impugned judgment and order, I find that the evidence of PW 1 as well as PW 2 on this count is reliable. There is hardly anything in their evidence which would create any doubt about the status of the deceased as Manager of PW 2 or his monthly salary being of Rs.3,000/-. Learned counsel Smt. Anita Mategaonkar, has invited my attention to one admission given by PW 2 during the course of his cross-examination. According to her, this admission is sufficient to find that the appellant did not adduce any evidence to establish the fact that the deceased Bhagwandas was working as a Manager and PW 2 was his employer. With due respect, I would say, this does not appear to be the case if one reads the evidence of PW 2 in its entirety. Of course, PW 2 has admitted that he did not have any documentary evidence to demonstrate that deceased Bhagwandas, at the relevant time, was serving in his shop as a Manager. But, I must say there is no law which mandates that in order to establish the relationship of employer and employee, there has to be some written agreement or some documentary evidence creating the same. Such a relationship can also come into being on the basis of oral engagement of the parties. Then, a categorical finding has been recorded in this regard by the Tribunal in the impugned judgment and order. The finding is that the evidence of PW 2 about the wages of deceased Bhagwandas is reliable and that he was working as a Manager in the shop of PW 2. This finding about deceased Bhagwandas serving as a Manager in the shop of PW 2 as well as other finding regarding his monthly salary of Rs.3,000/- per month have not been challenged by the respondent and thus have attained finality. Therefore, this Court would like to give effect to these findings and confirm the same. Unfortunately, however, the Tribunal after having recorded such clear findings, suddenly took a backward turn and on some surmises found that the wages of deceased Bhagwandas could be taken to be at Rs.2,000/- per month although there was no basis whatsoever for making such a determination. It appears that the Tribunal has only imagined without there being any foundation, that the deceased Bhagwandas might be getting salary to the extent of Rs.2,000/- per month, albeit erroneously. After having rendered a finding in a clear manner about quantum of salary of the deceased Bhagwandas, the Tribunal ought not to have undertaken such an exercise of giving a somewhat contrary finding. The contrary finding so recorded by the Tribunal is, therefore, quashed and set aside and the earlier finding that the deceased was getting monthly salary of Rs.3,000/- is upheld and confirmed. As stated earlier, this is also borne out in a sufficient manner from the evidence given by PW 1 and PW 2. The point No.1 is answered accordingly. As to Point Nos.2 and 3 :

8. For claiming higher compensation on account of nonpecuniary heads, learned counsel for the appellant has relied upon the cases of :

(i) Rajesh and others vs. Rajbir Singh and others, reported in 2013 ACJ 1403 : [2014 ALL SCR 2434],

(ii) Kalpanaraj and others vs. Tamil Nadu State Transport Corporation, reported in (2015) 2 SCC 764 : [2014(4) ALL MR 896 (S.C.)],

(iiii) Neeta w/o. Kallappa Kadolkar and others vs. Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, reported in (2015) 3 SCC 590 : [2016(1) ALL MR 508 (S.C.)],

(iv) Jiju Kuruvila and others vs. Kunjujamma Mohan and others, reported in (2013) 9 SCC 166 : [2013(4) ALL MR 946 (S.C.)],

(v) Chanderi Devi and another vs. Jaspal Singh and others, reported in (2015) 11 SCC 703 : [2015 ALL SCR 1788],

(vi) Sandhya Rani Debbarma and others vs. The National Insurance Company Ltd., and another, reported in 2016 (8) SCALE 820.

9. For ascertaining the compensation on account of future prospects and for making necessary deductions on account of personal expenses and also application of appropriate multiplier, learned counsel has further relied upon the case of Sarla Varma vs. Delhi Transport Corporation, reported in (2009) 6 SCC 121 : [2009(4) ALL MR 429 (S.C.)]. The principles set out in all these cases have by now become a settled law, with an exception to what is observed in the case of Shashikala and others (supra). The disagreement shown in the case of Shashikala and others by the two Judges Bench of the Hon'ble Apex Court would make no difference to the facts of the case for the reason that the disagreement in Shashikala was only about the addition towards future prospects in case of self employed or persons on fixed wages to be made to the compensation payable on account of dependency. In the instant case, the deceased Bhagwandas was neither a self employed person nor a fixed waged person and that he was getting monthly salary of Rs.3,000/- from his employer, PW 2. Therefore, the principles settled in the cases relied upon by the learned counsel for the appellants and referred to above, can be conveniently applied to the facts of the case and by applying the same, following position would emerge :

No.	Heads	Calculation
i.	Annual Income (Rs.3,000 x 12)	Rs.36,000/-
ii.	30% of (i) above to be added as future prospects	Rs.36,000/- +   Rs.10,800/- =   Rs.46,800/-
iii.	1/4th of (ii) deducted as personal expenses of the deceased.	Rs.46,800/ -    Rs.11,700/- =   Rs.35,100/-
iv.	Compensation after multiplier of 13 is applied (age 48 years)	Rs.35,100/- *        13 ----------------=   Rs.4,56,300/-
v.	Loss of consortium for widow	Rs.1,00,000/-
vi.	Loss of care and guidance for two minor children [ @ Rs.1/lakh per child]	Rs.2,00,000/-
vii.	Loss of estate	Rs.1,00,000/-
viii.	Loss of expectation of life of deceased	Rs.1,00,000/-
ix.	Funeral expenses and cost of litigation	Rs. 35,000/-
	Total Compensation Less : amount awarded Total enhancement in compensation	Rs.11,09,200/- Rs.2,77,200/- ----------------Rs.8,32,000/-

10. Thus, I find that the appellants are entitled to receive total enhanced compensation of Rs.8,32,000/- which amount shall be payable together with interest at the rate of 7% p.a. from the date of petition till its realization. The enhanced compensation so granted shall be apportioned on 50% basis between respondent Nos.1 and 2 on the one hand and respondent Nos.3 and 4 on the other hand meaning thereby respondent Nos.1 and 2 shall be jointly and severally liable to pay 50% of the total enhanced compensation amount together with interest at the rate of 7% p.a. and the respondent No.3 and 4 shall be liable to jointly and severally to pay remaining 50% by enhanced compensation amount together with interest at the rate of 7% p.a., as directed by this Court. The enhanced compensation in the aforesaid terms by paid within 3 months from the date of order. The point Nos.2 and 3 are answered accordingly.

11. The appeal is partly allowed in above terms and the impugned judgment and order stands modified accordingly. No costs.

12. The respondents are permitted to deposit the amount of compensation in this Court.

Appeal partly allowed.