(Judgment) 3108 FA 380-2017 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 380/2017
The New India Assurance Co. Ltd.
through Regional Manager,
4th Floor, MECL Building, Nagpur - MS. APPELLANT
.....VERSUS.....
1] Chanda Gowardhan Gomkade,
Aged 38 years, Occu: Housewife,
2] Gowardhan Shivhari Gomkade,
Aged 45 years, Occu: Agriculturist,
All R/o. Bodna, Post Khopada,
Tq. Morshi, District - Amravati.
3] Mahesh s/o Raghuveer Singh,
Aged 33 years, Occu: Driver,
R/o. Village - Bandha,
Distt. Morena, Madhya Pradesh.
4] Purushottam Singh s/o Sobaran Singh Gurjar,
Aged 50 years, Owner of the Truck bearing
no. MP-06/GA-1082,
R/o. Bandha, Hetampur Thana,
Sarai Choi Morena, Distt. Morena. RESPONDE NTS
Shri S.J. Kamble, counsel for appellant.
Shri M.R. Johrapurkar, counsel for respondent nos.1 and 2.
None present for respondent nos.3 and 4.
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(Judgment) 3108 FA 380-2017 2/11
CORAM: S.B. SHUKRE, J.
DATE : AUGUST 31, 2017.
ORAL JUDGMENT :
Heard. ADMIT.
2] Heard finally by consent of the learned
counsel for the appellant and learned counsel for the claimants, who are respondent nos.1 and 2 in this case. 3] Nobody appears for respondent nos.3 and 4, the driver and owner of the offending vehicle, though duly served on final hearing.
4] This appeal arises out of the judgment and award dated 23/12/2016 rendered in Claim Petition No. 96/2011, by the Member, Motor Accident Claims Tribunal, Amravati.
5] The Claim Petition filed under Section 166 of the Motor Vehicles Act (for short, "M.V. Act") was partly allowed by the Motor Accident Claims Tribunal, ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 3/11 Amravati. The Tribunal found that accident which occurred on 06/01/2011 on Amravati - Badnera road, in which, son of the respondent nos.1 and 2 died, was solely due to the rash and negligent driving of the offending vehicle, a Truck bearing registration no. MP- 06-GA-1082. This Truck was, at the relevant time, driven by the respondent no.3, owned by the respondent no.4 and insured with the appellant. The Tribunal also found that in this accident, son of respondent nos.1 and 2, riding pillion, on Hero Honda Splendor motor-cycle bearing registration no. MH-32-H-8016, was badly hit by the offending vehicle, which resulted in his instantaneous death. The Tribunal, considering the educational record of the deceased son, notionally computed income of the deceased to be at Rs.8,000/- per month, added to it 50% future prospects and applying the multiplier of '18', as per the age of the deceased, which was 19 years, calculated the total loss of dependency. The Tribunal, before arriving at the figure of total loss of dependency, deducted 50% of the income from the amount of Rs.8,000/- on account of personal expenses of the deceased. The Tribunal then ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 4/11 proceeded to add further amounts on account of loss of love and affection, loss of estate and funeral expenses and thus, granted total compensation of Rs.15,21,000/-, together with interest thereon at the rate of 7% per annum from 25/02/2011 till the realization of the amount by it's impugned award. The appellant, being not satisfied with the same, is before this Court, in the present appeal.
6] According to learned counsel for the appellant, compensation so granted, is on a very higher side. He submits that the multiplier should have been applied by considering the age of the parents and not of the deceased. He also submits that since deceased was not earning any income, the ratio of Rajesh and others
-Vs- Rajbir Singh and others, 2013 ACJ 1403, decided by the Hon'ble Supreme Court, should not have been applied, and therefore, no advantage in the nature of addition on account of future prospects to the notional income of the deceased, should have been given to the respondent nos.1 and 2. This is, however, not accepted by the learned counsel for the respondent nos.1 and 2, who submits that the impugned award is based upon the ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 5/11 conclusion drawn from the evidence available on record and the applicable ratios of the judgments of the Hon'ble Supreme Court, and therefore, there is no need to make any interference with the impugned award. 7] I have gone through the impugned award as well as the record of the case. Now, the only point which arises for my determination is:
"Whether the compensation awarded in the instant case is just and proper?"
8] As far as the aspect of the application of appropriate multiplier is concerned, I do not think that there can be any dispute about the proposition that now it is fairly well settled that for determination of the appropriate multiplier, it is the age of the deceased and not the age of the parents which is relevant. This Court by considering various decisions of the Hon'ble Supreme Court, in the case of The Oriental Insurance Co. Ltd.
-Vs- Naina Bapurao Bhamodkar and others, 2014(3) ALL MR 748, has held that, "The selection of the ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 6/11 multiplier must be done by taking into consideration the age of the deceased and not of the age of the parents". There is no reason for me to take a different view in the present case. Therefore, argument of the learned counsel for the appellant, in this regard, is rejected. I find that the multiplier of '18', based upon the age of the deceased, applied in the present case by the Tribunal, is proper and there is no need to make any interference with the same.
9] As regards the addition made to the notional income of Rs.8,000/- by the Tribunal on 50% basis, I also find that no fault could be found with the approach so adopted by the learned Tribunal.
10] In the case of Rajesh -Vs- Rajbir (supra), the Hon'ble Supreme Court held that, "In case the deceased falls in the category of self-employed or a person with fixed wages, addition on account of future prospects depending upon the age of the deceased should be made". It also held that, "In such cases, if the age of the deceased was found to be below 40 years, there should be addition of 50% to the ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 7/11 actual income of the deceased while computing future prospects". It was further held that, "If the age of the deceased was in the age group of 40 to 50 years, such addition should be no more than 30%". While laying down this principle, the Hon'ble Supreme Court reiterated the principle of law laid down in the case of Santosh Devi -Vs- National Insurance Co. Ltd., 2012 ACJ 1428 (SC). So, it would be useful for us to also refer to the case of Santosh Devi -Vs- National Insurance (supra). When this is done, one would find that addition of some amount, on account of future prospects to the actual income of the deceased, can be made even in the instant case. The reason being that in Santosh Devi -Vs- National Insurance (supra), the Hon'ble Supreme Court has found that, due to ever rising cost of living and prices of the essentials, a trend has been developed whereby the persons falling in the category of self-employed or fixed wages groups, exhibit a marked a tendency to increase the cost of their labour, and therefore, it would be reasonable to think that even the persons belonging to either of these categories would be having good prospects of increase in their income, in ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 8/11 future.
11] So, if a person on fixed wages or a person on self-employment, because of this tendency to increase his cost of labour which is fired by inflation, would have future prospects, there is no reason for me to hold that a student with bright career would not have a good chance of seeing incremental rise in his income as he keeps gaining experience and power as well to bargain for more income. When a student with good educational career can be reasonably presumed to successfully complete his education and earn some income using the skills that he would possess at the end of the course, such a student can also be presumed reasonably to combine his skills with experience to pool in for himself more income as the years go by. Therefore, I am of the view that it cannot be held that principle of addition of income on account of future prospects cannot be applied to a case where the deceased is student. I would emphatically find that such addition of future prospects can be made even in a case where the deceased is student, by drawing support from Santosh Devi ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 9/11 (supra). But, this is only by way of a principle. Whether any such addition be made or not, and if yes, in what manner, are questions of fact, the answers to which would be provided by fact - situations of every case. 12] In the present case, the deceased son of the respondent nos.1 and 2, as the evidence of PW-1 shows, was indeed having reasonably good prospects to earn income and that is the reason, why the Tribunal determined his monthly income at Rs.8,000/- per month on notional basis. If it is found that deceased could have notionally earned in future income of Rs.8,000/- per month, there is no reason for me to hold that his such income, would always have remained stationary, no matter his skills, which would sharpen further, and his power of bargain, which he would get by experience. Besides, inflation in economy would also lead to a situation of general rise in wages or salary or income. It is significant to note here that the evidence available here completely supports a conclusion that deceased son of respondent nos.1 and 2 would have reasonably seen a rising graph of his income as years went by. The ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 10/11 evidence of PW-1 clearly shows that the deceased had earned a reputation of being very good at English as well as one of the engineering subjects of Information Technology, for, he was honoured by certificates of excellence in these subjects. This evidence of PW-1 has gone completely unchallenged. The inference then would be irresistible - addition to the notional income of the deceased by way of 50% of the notional income on account of future prospects, is rational thinking, and this is what the Tribunal has done in the instant case. It would then follow that, it cannot be said that the principles laid down in the cases of Rajesh -Vs- Rajbir (supra) and Santosh Devi (supra) could not be drafted in here for giving advantage to the claimants. 13] As regards the other additions made by the Tribunal on account of non-pecuniary heads, I do not find any illegality in as much as there is no dispute about the same.
14] In these circumstances, I find that the compensation awarded by the Tribunal, is just and ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 01:26:24 ::: (Judgment) 3108 FA 380-2017 11/11 proper. The point is answered accordingly. The appeal deserves to be dismissed.
15] Appeal stands dismissed.
16] The amount deposited in this Court, is
permitted to be withdrawn by the claimants i.e. respondent nos.1 and 2.
17] Parties to bear their own costs.
JUDGE
Yenurkar
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