First Appeal No.1437 of 2008

12th July, 2018.

Petitioner Counsel: Mrs. MRUNAL NAIK
Respondent Counsel: Mr. M.A. KADU

Cases Cited:
Sarla Verma Vs. DTC, 2009(4) ALL MR 429 (S.C.)=(2009) 6 SCC 121 [Para 7]
Ranjana Prakash Vs. Divl. Manager, 2012 ALL SCR 1370=(2011) 14 SCC 639 [Para 9,14]
National Insurance Company Limited Vs. Pranay Sethi, 2018 ALL SCR 953=2018(3) Mh.L.J. 70 (S.C.) [Para 17,18]

JUDGMENT

JUDGMENT :- The appellantUnited Insurance Company Limited challenges the judgment and award passed by the Motor Accident Claims Tribunal, Amravati in M.A.C.P. No.355 of 2003.

2. 2. The operative part of the order passed by the Tribunal reads as under:-

“ORDER

(A) The petition is partly allowed with proportionate costs.

(B) The respondent Nos.1 to 3 are jointly and severally liable to pay Rs.11,39,128/- to the petitioners as compensation including the amount of no fault liability along with interest @ 7.5% per annum from the date of petition till realization.

(C) The petitioner No.1 is entitled to get 40% amount of total compensation and petitioners No.2 to 5 are entitled to get 15% each of the total amount of compensation.

(D) On depositing the amount of compensation in the Court, 50% amount of the share of each petitioner be deposited in their respective name in any Nationalized Bank for the period of five years.

(E) The petitioners are entitled to receive interest annually on amount deposited in the bank in their respective names.

(F) Award be prepared accordingly.

Dt.23-4-2007.                                                                 Sd/-                                                                                 (S.W.Chavan)                                                                    Member, MotorAccident Claims                                                                                  Tribunal, Amravati.”

3. 3. The facts of the case in brief are that –

The claimant i.e. respondent No.1 Shubhada filed a claim petition contending that her husband Prakash while coming from the side of Om Colony on his Hero Honda motorcycle bearing No.MH-27 M-9834 on 29/05/2003 at about 9.35 p.m. got dashed by a truck bearing No.MP-09-1001 which was coming towards Nagpur from Akola side. It is alleged that due to rash and negligent driving of the truck driver, Prakash died on the spot. The said truck was insured with the appellant. The deceased was the only earning member of the family consisting of respondent No.1, 3 sons namely Nilesh, Shailesh and Yogesh viz. respondent Nos.2 to 4 respectively and mother respondent No.5-Smt. Prabhavati. Deceased Prakash was earning income of Rs.26,000/- per month. The claimants contended that deceased Prakash used to contribute Rs.2,33,000/- annually to his family. According to the claimants by applying the multiplier of 10, they are entitled for compensation of Rs.23,30,000/- and also claimed compensation towards consortium, funeral expenses, mental agony, pain and suffering loss of company, etc.. The claimants claimed compensation to the tune of Rs.28,50,000/-. The claim petition is filed against the appellant and the respondent Nos.6 and 7 to jointly and severally pay the compensation.

4. 4. It is not in dispute that the truck bearing No.MP-09/D-1001 was insured with the appellant. The accident is also not in dispute. The appellant contended that it is the motorcycle which was being driven in a rash and negligent manner at a very high speed. According to the appellant, the insurer of the Hero Honda motorcycle ought to have been made party respondent to the proceedings.

5. 5. The Tribunal was pleased to frame the following issues at Exhibit-16.

SR. NO.	ISSUES
1)	Do the petitioners prove that due to rash and negligent driving of the truck bearing No.MP-09/ D-1001 an accident took place and Prakash Bhaskar Potdar sustained injuries and died?
2)	Does the insurance company prove that there was breach of the policy?
3)	Does the insurance company prove that the deceased who was driving the Hero Honda bearing No.MH-27/ N9834 was also responsible for the accident?
4)	Do the petitioners prove that they are entitled to compensation, if yes, of what amount and from whom?
5)	What should be the apportionment of the compensation amount, between the petitioners, if it is granted?

6. The learned counsel for the appellant submitted that the Tribunal erred in coming to the conclusion that the said truck was driven in a rash and negligent manner. According to her the evidence on record would indicate that it was the deceased Prakash who was riding the motorcycle in a rash and negligent manner. In support of the claim petition, the son of deceased Prakash namely Shailesh Potdar is examined at Exhibit39. He has stated that due to rash and negligent driving of the truck driver bearing truck No.MP-09/D-1001,the accident took place. The copy of the FIR Exhibit-30, the copy of the spot panchnama Exhibit-31, copy of the inquest panchnama at Exhibit-32 and Postmortem report at Exhibit-33 are produced by witness Shailesh Potdar. In respect of this accident Crime No.N-136/ 2003 under sections 279, 304-A of Indian Penal Code was registered at the Frazarpura Police Station against the driver of the truck on the ground that he drove the truck rashly and negligently. The truck driver did not appear before the Court though duly summoned. Even the appellants have not adduced any evidence to show that the truck driver was not responsible for the accident. In this view of the matter, if the Trial Court has drawn adverse inference due to non-examination of any witness by the appellant on the point of accident and if on the basis of the materials on record it has come to the conclusion that the truck in question was driven in the rash and negligent manner, I see no error in the findings recorded by the Tribunal.

7. Learned counsel Mrs.Mrunal Naik vehemently urged that the Tribunal was not justified in coming to the conclusion that deceased Prakash was earning a salary of Rs.26,000/- per month. According to her, the Tribunal was not justified in relying upon the salary certificate of deceased Prakash at Exhibit-36. It is the submission of learned counsel Mrs. Naik that except producing the salary certificate on record, there is no material on record to indicate that the deceased was earning Rs.26,000/- per month. In her submission the salary certificate ought to have been proved by the claimants by examining the concerned officers of the Maharashtra State Electricity Board where deceased Prakash was working. In the absence of examination of any of the witness responsible for issuance of the salary certificate, the Tribunal committed a serious error in relying on the certificate which coming to the conclusion that deceased Prakash was drawing a salary of Rs.26,000/- per month. In her submission the salary certificate should have been discarded by the Tribunal. She therefore, submits that as the claimants failed to prove the income of deceased Prakash, the Tribunal ought to have awarded compensation only on the basis of the notional income as per the law laid down by the Hon'ble Supreme Court in the case of Sarla Verma v. DTC reported in (2009) 6 SCC 121 : [2009(4) ALL MR 429 (S.C.)].

8. It is next contended by Mrs.Naik, the learned counsel for the appellant that admittedly as on the date of incident deceased Prakash was aged 57 years and 9 months and had only 3 months of service left. According to her, upon retirement deceased Prakash was not entitled to any pensionary benefits as per the Service Rules of M.S.E.B., therefore, the Tribunal erred in applying the multiplier taking into consideration the income which he was earning 3 months prior to his retirement. In her submission this is a case where split multiplier ought to have been applied. She submits that at the highest the appellant could have been granted the benefit of 3 months of salary prior to the retirement while ascertaining the compensation. Upon retirement after attaining the age of superannuation only notional income should have been taken into consideration while applying the multiplier.

9. Shri Kadu, the learned counsel appearing for the respondent Nos.1 to 5/claimants supported the order passed by the Tribunal. He however submitted that though the Tribunal has applied the multiplier of 8, now in the light of the law laid down by the Hon'ble Supreme Court in Sarla Verma's case the claimants are entitled for the multiplier of 9. This submission of Mr.Kadu, the learned counsel for the claimants is opposed by Mrs.Naik, the learned counsel for the appellant by relying on the decision of the Hon'ble Supreme Court in the case of Ranjana Prakash v. Divl. Manager reported in (2011) 14 SCC 639 : [2012 ALL SCR 1370]. She submits that in an appeal filed by the Insurance Company, in the absence of any cross-objection or cross-appeal filed by the claimants, the claimants would not be justified in asking for more compensation than the one awarded by the Tribunal. She submits that at the highest the appeal filed by the appellant can be dismissed.

10. Considered the submissions advanced by the learned counsel for the parties. I have already come to the conclusion that the accident took place because of the rash and negligent driving on the part of the truck driver. As regards the contention of Mrs. Naik that this is a fit case where split multiplier should be applied, the submission though appears to be attractive in the first blush, in my opinion the same deserves to be rejected. As on the date of accident admittedly deceased Prakash was aged 57 years and 9 months and he had only 3 months to retire. The Hon'ble Supreme Court in the case of Sarla Verma has laid down the steps to be followed while determining the compensation in the cases of death with a view to have uniformity and consistency. Step-2 is regarding ascertaining the multiplier. The relevant portion from the decision of the Hon'ble Supreme Court as regards to Step-2 is reproduced thus:-

"Step-2 (Ascertaining the multiplier)

Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased."

11. The Hon'ble Supreme Court thus has identified having regard to the several imponderables in life and economic factors, a table of the multiplier with reference to the age. Their Lordships have further held that the multiplier should be chosen from the said table with reference to the age of the deceased. This being the position, the submission of learned counsel Mrs.Naik that this is a fit case for application of split multiplier cannot be accepted. I do not find any merit in this submission. In this view of the matter, the multiplier has to be chosen from the table identified by the Hon'ble Supreme Court in Sarla Verma's case. The appropriate multiplier therefore is 9.

12. Insofar as the contention of learned counsel Mrs.Naik that the income of deceased Prakash is not proved, the submission can only be stated to be rejected. The claimants have produced on record the salary certificate at Exhibit36 which has been duly signed by the Executive Engineer, EHV (O&M), Division, M.S.Electricity Board, Amravati. It is not the case of the Insurance Company that the said salary certificate is false or fabricated. It is further not disputed that Late Prakash was in fact working as a Deputy Executive Engineer, Maharashtra State Electricity Board, Amravati. In these circumstances, there was absolutely no reason for adducing further proof in support of the salary certificate issued by the M.S.E.B. The Tribunal was justified in relying on the salary certificate for coming to the conclusion that the deceased Prakash was drawing a salary of Rs.25,682/-.

13. The next submission of Mrs.Naik, the learned counsel for the appellant is as regards to the applicability of the multiplier as identified by the Hon'ble Supreme Court in the case of Sarla Verma. According to her, the decision in Sarla Verma is rendered after the decision of the claim application and therefore can have no application. In my opinion, during the pendency of the appeal, if the Hon'ble Supreme Court has deduced the principles as regards the applicability of the multiplier, there is no reason to deny the said benefit to the claimants in the appeal which is pending. Undoubtedly this is an appeal filed by Insurance Company. None the less even in an appeal which has been filed by Insurance Company, there is no reason to deny claimants the benefit of Hon'ble Supreme Court's decision so that claimants receive just and fair compensation.

14. Shri Kadu, the learned counsel for the claimants contended that the Tribunal was not justified in coming to the conclusion that the deceased was receiving net salary of Rs.17,690/-. According to him, the Tribunal should not have deducted provident fund contribution, Cooperative Society and cycle/motorcycle. Adv./H.B.A. from the gross salary. Learned counsel Mrs.Naik submits that in the appeal filed by the Insurance Company the findings recorded by the Tribunal that the deceased was receiving net salary of Rs.17,690/-cannot be disturbed. I am however of the opinion that the Tribunal was not justified in deducting the amount towards provident fund, cooperative society and motorcycle advance to HBA while calculating the net salary for the purpose of income. As indicated earlier, the learned counsel for the appellant relied upon the decision of the Hon'ble Supreme Court in the case of Ranjana Prakash [2012 ALL SCR 1370] (supra) to contend that in an appeal filed by the Insurance Company the claimants will not be entitled to seek enhancement of the compensation by urging any new ground in the absence of cross-appeal or cross-objection. In my opinion, the ground regarding deduction towards provident fund, cooperative society and cycle/motorcycle advance-HBA is not a new ground.

15. The basis of calculation of compensation has remained unchanged. It is only that the monthly income has increased as the Tribunal was not justified in deducting the amounts mentioned above under the heads of deductions. Therefore, following the mandate of the decision of the Hon'ble Supreme Court to the effect that the court must endeavour to arrive at a figure of "just compensation", this court has rendered findings towards further amounts payable by the appellant-Insurance Company to the respondents/claimants even in the absence of cross-appeal or cross-objection filed by them. According to me, after deducting the income tax and professional tax from the gross salary, the income will have to be considered as Rs.23,982/-per month.

16. As regards the aspect of number of dependents I am of the opinion that in the present case the respondent No.1-wife, the respondent No.5-mother aged 80 years and son aged 23 years of the deceased are to be regarded as dependents. However, I see no reason to regard the respondent No.2 Nilesh aged 30 years and respondent No.3 Shailesh aged 27 years as dependents.

17. The learned counsel for the claimants next contended that in terms of the decision of the Hon'ble Supreme Court in the case of Pranay Shetty : [2018 ALL SCR 953] (supra) the claimants would be entitled for future prospects. However, as admittedly the deceased was to retire upon completion of 58 years of age and he had only 3 months of service left on the date of the accident, in my opinion, this is not a fit case where benefit of enhancement of the salary should be granted.

18. In this view of the matter, the amount of compensation payable to the respondents/claimants is worked out which is as follows:-

The net income is Rs.23,982/- per month.

The annual income comes to Rs.2,87,784/-.

1/3rd of the annual income comes to Rs.95,928/-.

After deducting the amount of Rs.95,928/- from the annual income of Rs.2,87,784/-, the amount comes to Rs.1,91,856/-.

Applying the multiplier of 9 to the amount of Rs.1,91,856/- the total amount comes to Rs.17,26,704/-.

As per the decision of the Hon'ble Supreme Court in Pranay Sethi [2018 ALL SCR 953] (supra) by adding Rs.70,000/- towards funeral expenses, the total compensation comes to Rs.17,96,704/-.

The Tribunal has awarded compensation of Rs.11,39,128/-. The increased amount of compensation payable to the claimants comes to Rs.6,57,576/-.

19. Hence, the following order:

(i) As the Tribunal has granted compensation of Rs.11,39,128/- increased amount of compensation payable to the respondent Nos.1 to 5/claimants shall be Rs.6,57,576/.

(ii) The said increased amount of compensation shall also carry interest as determined by the Tribunal.

(iii) The balance amount of compensation due and payable be deposited by the appellant in this court within a period of 3 months from today.

(iv) The respondent Nos.1 to 5/claimants are at liberty to withdraw the said amount so deposited. Needless to mention the claimants are also allowed to withdraw the amount which is already deposited/invested. Claimants to pay deficit court fees on increased amount of compensation

(v) Appeal is disposed of with no order as to costs.

Ordered accordingly.