High Court
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First Appeal No.2080/2020:: 1 ::CORRECTED JUDGMENTIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.2080 OF 20201.Suresh Devrao Gayakwad,Age 52 years, Occ. Labour,R/o Ganori, Tq. Phulambri,Dist. Aurangabad2.Sangita Suresh Gayakwad,Age 42 years, Occ. Household,R/o Ganori, Tq. Phulambri,Dist. Aurangabad3.Kiran Suresh Gaikwad,Age 20 years, Occ. Education,R/o Ganori, Tq. Phulambri,Dist. Aurangabad4.Suvarna Rameshwar Salunke,Age 27 years, Occ. Household,R/o Shirodi (Bk.), Tq. Phulambri,Dist. Aurangabad … APPELLANTS(Original Claimants)VERSUS1.Sunil Murlidhar Bhosale,Age 43 years, Occ. Driver,R/o Plot No.12, Flat No.3,Eden Plaza, Opp. of Sahara VaibhavJatvada Road, Harsul,At Post Tq. Dist. AurangabadMob. No. 94035341852.Sunil Ramrao Chavan,Age major, Occ. Owner,R/o E, H.No.62/6, Mayur Nagar,Hudco, N-11, Opp. SPI Sainiki School,AurangabadMob. No. 9890239555R-1 & R-2 are serving at First Appeal No.2080/2020:: 2 ::New High School, Kingaon, Tq. Phulambri, Dist. Aurangabad3.The New India Assurance Co. Ltd.,Through its Branch Manager,Branch office at Adalat Road,Aurangabad … RESPONDENTS(Original Respondents).......Mr. S.B. Rajebhosale, Advocate for appellants Mr B.V. Dhage, Advocate for respondents No.1 and 2 Mr. S.R. Bodade, Advocate for respondent No.3 ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 26th July, 2024Date of pronouncing judgment : 19th August, 2024JUDGMENT (PER R.G. AVACHAT, J.) : This is an appeal under Section 173 of the MotorVehicles Act, 1988 (MV Act for short). The appellants are theoriginal petitioners/ claimants in Motor Accident Claim Petition(MACP), No.603/2018. The appellants claim to be legalrepresentatives of Kalyan (deceased). The appellants No.1and 2 were the parents while appellants No.3 and 4 wereunmarried brother and married sister respectively of deceasedKalyan.2.It was the case of the appellants that, deceasedKalyan was 22 years of age. He was serving with Aakar Tools First Appeal No.2080/2020:: 3 ::Ltd., Unit-II, C-5/6, MIDC Industrial Area, Waluj, Aurangabad ata monthly salary of Rs.24,100/-.3.On 23/5/2018 by 8.00 p.m., deceased Kalyan alongwith his colleague (deceased Amol Chavan) were returning ona motorbike from their work place after completing their duty.Amol was riding the motorbike while the deceased Kalyan wasa pillion rider. A Hyundai Eon car bearing Registration No.MH-20/CH-6671 knocked them down. The car was driven in rashand negligent manner by respondent No.1. The car belongedto respondent No.2. The respondent No.3 InsuranceCompany had granted the car insurance cover for a periodfrom 27/3/2018 to 26/3/2019.4.The appellants (original claimants) made a claimfor Rs.6 Crores, as compensation.5.The claim was resisted by the respondents onmany grounds. The respondent No.3 Insurance Company hadraised the defence of a contributory negligence on the part ofmotorbike rider.6.The appellants- petitioners to the claim petition First Appeal No.2080/2020:: 4 ::adduced the evidence. The Tribunal, on appreciation of thesame, granted the petitioners compensation amounting toRs.13,90,800/- with interest @ 9% p.a. from the date of filing ofthe petition till realization of the amount of compensation. Theamount of compensation was even directed to be apportionedin terms of clause (3) and (4) of the operative part of theaward. The amount of compensation was directed to be paidby the respondents No.2 and 3 jointly and severally.7.Being aggrieved and dissatisfied with the quantumof compensation awarded under the impugned award, theappellants (original petitioners) have preferred this appeal.8.Heard. The learned Advocate for the appellantswould submit that, the deceased Kalyan was serving at amonthly pay of Rs.24,100/-. He died bachelor. He was thesole bread winner in the family of the appellants. Thedeceased was a graduate. He knew technical know-how. Hehad bright future. A salary certificate (Exh.39) issued by theemployer was produced in evidence. A witness was alsoexamined in proof of the same. The Tribunal ought to haverelied on the said evidence and granted compensation withaddition of 50% therein towards future prospects. According to First Appeal No.2080/2020:: 5 ::learned Advocate, the Tribunal did not award compensationunder other conventional heads, such as loss of consortium,medical expenses, transportation expenses etc. He relied onthe following authorities :(1)The New India Assurance Co. Ltd. Vs. Shweta DilipMehta & ors. [ 2010 (2) ALL MR 222 ](2)Sanubanu Nazirbhai Mirza & ors. Vs. AhmedabadMunicipal Transport Service [ 2013 AIR (SCW) 5800 ](3)National Insurance Company Limited Vs. Pranay SethiAIR 2017 SC 5157(4)Royal Sundaram Alliance Insurance Company Ltd. Vs.Smt. Varsha Rajendra Pache & ors. (2018) 2 ALL MR 852 ]9.The learned Advocate put on record his writtenarguments besides the abovesaid authorities.10.The learned Advocate for the InsuranceCompanies too placed on record his written submissions.11.The learned Advocate for the Insurance Companywould submit that, the Tribunal has granted just andreasonable amount of compensation. The deceased diedbachelor. The appellants did not place on record appointment First Appeal No.2080/2020:: 6 ::order of the deceased or any other document in the nature ofBank Passbook or salary slip indicating the so called employerwas depositing/ transmitting the alleged quantum of salary tothe Bank Account of the deceased every month. According tolearned Advocate, the Tribunal has, therefore, rightlyconsidered the annual income of the deceased notionally.Since the deceased died bachelor, 50% of his income hasbeen deducted towards personal and living expenses. TheTribunal also granted 40% addition towards future prospects.The learned Advocate ultimately submitted for dismissal of theappeal.12.Before the Tribunal, a defence of contributorynegligence was raised by the Insurance Company. It has beenanswered in the negative by the Tribunal and the respondentInsurance Company has not preferred appeal against theaward or Cross-Objection, therefore, the said defence nolonger subsists for us to address.13.The question in this appeal is, as to quantum ofcompensation. The tribunal granted the compensationassuming notional income of the deceased at Rs.9000/- permonth. The F.I.R. lodged by father of the deceased contained First Appeal No.2080/2020:: 7 ::averments that both the deceased were on their way backhome after duty with Aakar Tools Ltd., Unit-II, C-5/6, MIDCIndustrial Area, Waluj, Aurangabad, was over. The deceasedwas riding pillion. The Tribunal granted the compensationunder various heads as under :Sr.No.Compensation under HeadAwarded byTribunalATotal income per year of the deceased Kalyan GayakwadRs.9000 x 12 =Rs.1,08,000/-B40% to be added in total income per year of the deceased towards future prospectsRs.1,08,000 + 43,200/- =Rs.1,51,200/-C50% deductions towards personal and living expenses of deceased as he was Bachelor1,51,000 / 2 = 75,600/-Rs.75,600/-DPecuniary loss after applying multiplier of18 as the deceased was above 22 years old75,600 x 18 =Rs.13,60,000/-EAdd “ Funeral expensesRs.15,000/-FAdd: Loss of EstateRs.15,000/-Total sum payable to the claimants Rs.13,90,800/-14.The learned Advocate contended that, in view ofdirections of the Constitution Bench judgment of the ApexCourt in case of National Insurance Company Ltd. Vs. PranaySethi (supra), the Tribunal ought to have added 50% of theannual income of the deceased towards future prospects. Hewould further submit that, considering the number ofdependents, deduction towards personal and living expensesof the deceased ought to have been one third and not one half.
Legal Reasoning
First Appeal No.2080/2020:: 8 ::Relying on the judgment of Division Bench of this Court in caseof New India Assurance Co. Ltd. Vs. Shweta Mehta (supra), hewould submit that, loss of future income as a head ofcompensation applies to all persons, whether earning or not atthe time. He would further submit that, the Tribunal/ Court hasevery jurisdiction to grant compensation in excess of what hasbeen urged for in the petition when it finds the grant of excesscompensation would be just and reasonable. Turning to theincome of the deceased, and particularly the document atExh.58, he would submit that, the employer of the deceasedhad issued the appellant salary details which were as under : Basic salary …Rs. 9,176=00Other Allowance …Rs.12,000=00Conveyance allowance …Rs. 2,924=00-------------------------------------------------Total salary …Rs.24,100=00 p.m. Total Gross--------------------------------------------------15.According to him, an employee of the veryCompany was examined in proof of the said salary certificate,issued on 13/8/2018.16.The Tribunal, in our view, assigned good reasons First Appeal No.2080/2020:: 9 ::for not relying on the said certificate. The Tribunal observedthat the said certificate was issued three months after thedeath of Kalyan. It was issued on the request of theappellants. Neither the Bank Passbook of the deceased norany other document was tendered in evidence to indicate theemployer of the deceased would transfer each month’s salaryamount to the Bank Account of the deceased. No appointmentletter, attendance register etc. were produced in evidence. 17. In our view, the Tribunal rightly did not rely on thesalary certificate (Exh.58). We, therefore, called upon learnedAdvocate for the appellant and offered him opportunity toproduce such documents as an additional evidence in appeal.He expressed his inability. According to him, the employernow may not issue such document. By passage of time, thedocuments may have not been in existence. Then he wouldsubmit that, the deceased was working as a contract labour.18.When the F.I.R. recites that both the deceasedwere returning from their work place after having completedduty with Aakar Tools Ltd., Unit-II, C-5/6, MIDC Industrial Area,Waluj, Aurangabad and one of the appellant testified the sameon oath, we do not find any reason to disbelieve their case that First Appeal No.2080/2020:: 10 ::the deceased was really in employment with the saidCompany. The question is, the quantum of salary of thedeceased. At the cost of repetition, it is stated that, the samehas rightly been discarded by the Tribunal. We, therefore, nowpropose to have recourse to rates of basic pay and specialallowance for the period 1/1/2018 to 30/6/2018 (RevisedMinimum Wages – Maharashtra which are as under.The Rates of Basic Pay &Special Allowances for the period (01-01-2018 to 30-06-2018)(REVISED MINIMUM WAGES – MAHARASHTRA)B A S I CSpecialAllowan-cesMin. wageUnskilledMin. wage SemiskilledMin. wageskilledMin. wageHighly skilledSr.No.Nature ofIndustriesModeUn-skilledSemi-skilledSkilledHighlyskilledPermonthPer dayPermonthPerdayPermonthPerdayPermonthPerday12AutomobilerepairingP.M.4800510055000+42009000346.1549300357.699700373.0800The same are produced on record and marked as Exhibit ‘X’for identification. As per Item No.2 therein, the minimumwages for a skilled labour in Automobile repairing industrywere Rs.9700/- per month. We, therefore, propose to takeRs.9700/- as monthly income/ salary of the deceased, insteadof Rs.9000/- and propose to work out the compensation.19.The directions given by the Constitution Bench of First Appeal No.2080/2020:: 11 ::the Apex Court in the case of Pranay Sethi (supra) were asunder :(i) . . . . . . . . . . . . . . . . . . . . . . . (ii) . . . . . . . . . . . . . . . . . . . . .. . (iii) While determining the income, an addition of50% of actual salary to the income of the deceasedtowards future prospects, where the deceased had apermanent job and was below the age of 40 years,should be made. The addition should be 30%, if theage of the deceased was between 40 to 50 years. Incase the deceased was between the age of 50 to 60years, the addition should be 15%. Actual salaryshould be read as actual salary less tax. (iv) In case the deceased was self-employed or on afixed salary, an addition of 40% of the establishedincome should be the warrant where the deceasedwas below the age of 40 years. An addition of 25%where the deceased was between the age of 40 to 50years and 10% where the deceased was between theage of 50 to 60 years should be regarded as thenecessary method of computation. The establishedincome means the income minus the tax component.(v) For determination of the multiplicand, thededuction for personal and living expenses, thetribunals and the courts shall be guided byparagraphs 30 to 32 of Sarla Verma which we havereproduced hereinbefore. (vi) The selection of multiplier shall be as indicatedin the Table in Sarla Verma read with paragraph 42of that judgment. (vii) The age of the deceased should be the basis forapplying the multiplier. (viii) Reasonable figures on conventional heads,namely, loss of estate, loss of consortium and funeral First Appeal No.2080/2020:: 12 ::expenses should be Rs. 15,000/-, Rs. 40,000/- andRs. 15,000/- respectively. The aforesaid amountsshould be enhanced at the rate of 10% in every threeyears. 20.In paragraph No.39 of the judgment in case ofPranay Sethi (supra), following are the observations of theApex Court :-39. Before we proceed to analyse the principle foraddition of future prospects, we think it seemly toclear the maze which is vividly reflectible fromSarla Verma, Reshma Kumari, Rajesh and MunnaLal Jain. Three aspects need to be clarified. Thefirst one pertains to deduction towards personal andliving expenses. In paragraphs 30, 31 and 32, SarlaVerma lays down:-“30. Though in some cases the deduction to bemade towards personal and living expenses iscalculated on the basis of units indicated inTrilok Chandra4, the general practice is toapply standardised deductions. Havingconsidered several subsequent decisions of this(2003) 3 SLR (R) 601 Court, we are of theview that where the deceased was married, thededuction towards personal and living expensesof the deceased, should be one-third (1/3rd)where the number of dependent familymembers is 2 to 3, one-fourth (1/4th) where thenumber of dependent family members is 4 to 6,and one-fifth (1/5th) where the number ofdependent family members exceeds six. 31. Where the deceased was a bachelor and theclaimants are the parents, the deduction followsa different principle. In regard to bachelors, First Appeal No.2080/2020:: 13 ::normally, 50% is deducted as personal andliving expenses, because it is assumed that abachelor would tend to spend more on himself.Even otherwise, there is also the possibility ofhis getting married in a short time, in whichevent the contribution to the parent(s) andsiblings is likely to be cut drastically. Further,subject to evidence to the contrary, the father islikely to have his own income and will not beconsidered as a dependant and the mother alonewill be considered as a dependant. In theabsence of evidence to the contrary, brothersand sisters will not be considered asdependants, because they will either beindependent and earning, or married, or bedependent on the father.32. Thus even if the deceased is survived byparents and siblings, only the mother would beconsidered to be a dependant, and 50% wouldbe treated as the personal and living expensesof the bachelor and 50% as the contribution tothe family. However, where the family of thebachelor is large and dependent on the incomeof the deceased, as in a case where he has awidowed mother and large number of youngernon- earning sisters or brothers, his personaland living expenses may be restricted to one-third and contribution to the family will betaken as two-third.” 21.In view of the aforesaid legal position, we do findthe Trial Court to have rightly deducted 50% of the income ofthe deceased towards his personal and living expenses. Inthis case, the claimants were parents and younger brother ofthe deceased. The deceased died bachelor is undisputed. The First Appeal No.2080/2020:: 14 ::father (appellant No.1) was just 52 years of age. He mighthave been earning. We do not propose to give further reasonsin view of the aforesaid observations of the Apex Court. Fromreading of the impugned judgment and award, what can beseen to have been missed out is non-grant of compensation onthe ground of consortium. The appellants No.1 and 2 beingparents of the deceased, are entitled to Rs.40,000/- eachunder this head. A sum of Rs.15,000/- towards funeralexpenses and loss of estate has rightly been granted. Now theamount of compensation is worked out considering themonthly income of the deceased to be Rs.9700/- per month, asunder :-Rs.9700 x 12 = Rs.1,16,400/- + 40% - rs.46,560/-=Rs. 1,62,960/-minus 50% - Rs.81,480/-=Rs. 81,480/- x 18=Rs.14,66,640/-+ Loss of Consortium Rs. 40,000/- x 2 =Rs. 80,000/-Total sum payable to the claimants:-Rs.15,46,640/-minus amount awarded by Tribunal =Rs.13,90,800/-(if already paid)=Rs. 1,55,840/-22. The amount which is in excess of the one awardedby the Tribunal be paid to the appellants No.1 to 3 in the ratio First Appeal No.2080/2020:: 15 ::of 5 : 3 : 2 with interest @ 9% p.a. from the date of claimpetition to the date of realization.Appellant No.4 is married sister of the deceased.No amount of enhanced compensation is, therefore, directedto be paid to her.23.The First Appeal is partly allowed in above terms. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-