1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 440 of 2014
Appellant : Depot Manager, Maharashtra State Road
Transport Corporation, S. T. Stand, Wardha
Versus
Respondents: 1) Sujata Sukhlal Patil, aged about 30
years, Occ: Household
2) Akansha Sukhlal Patil, aged about 10 years,
Student
3) Aryan Sukhlal Patil, aged 3 years,
Respondents no. 2 and 3 being minor through
their natural guardian-mother Smt Sujata
Sukhlal Patil
4) Annapurna Badshah Patil, aged about 60
years, Occ: Nil
5) Badshah Zaamaji Patil, aged about 65 years,
Occ: nil,
All residents of Talegaon, Tahsil Ashti, District
Wardha
6) Anil Laxmanrao Kulsange, adult, Occ: Driver,
Pulgaon Depot, C/o Vaidya House, Behind Shri
Pramod Bombnate House, Shivaji Colony, Pulgaon,
Tahsil Devli, Dist. Wardha
-------------------------------------------------------------------------------------------
Ms S. D. Rangari, Advocate for appellant Shri A. R. Rishi, Adcvocate for respondents no. 1 to 5 Shri A. M. Patankar, Advocate for respondent no. 6 ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 ::: 2 Coram : S. B. Shukre, J Dated : 7th November 2017 Oral Judgment
1. This appeal questions legality and correctness of the judgment and order dated 31st December 2013.
2. Respondents no. 1 to 5 are the original claimants. They are widow, children and parents of deceased Sukhlal Badshah Patil who died at the age of 34 years in a road accident involving a motor-cycle and ST Bus belonging to the appellant and driven at the relevant time by respondent no. 6. The accident occurred on 3.2.2012 on Arvi-Talegaon Road within the limits of city of Arvi. It was in the nature of head-on collusion between motor-cycle rode pillion by the deceased and ST Bus bearing registration number MH-06/S-7924. Deceased Sukhlal received fatal injuries and died on the spot.
3. The claim petition filed by respondents no. 1 to 5 was partly allowed by the judgment and order impugned herein. Not being satisfied with the same, the appellant is before this Court in the present appeal.
4. I have heard learned counsel for the parties at length. I have gone through record of the case including impugned judgment and order. Now, the following points arise for my determination:
(i) Whether the claimants prove that the accident occurred due ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 ::: 3 to rash and negligent driving of the offending ST Bus ?
(ii) Whether the compensation granted by the Tribunal is just and proper ?
5. In the present case, it is seen that respondnt no. 1, one of the original claimants, only examined herself and there was no other witness examined either by the original claimants or the appellant or respondent no. 6. Respondent no. 1 was not an eye witness to the accident. Therefore, the Tribunal relied upon the First Information Report and spot panchanama and reached to a conclusion that the accident occurred only due to rash and negligent driving of the bus in question driven by respondent no. 6. The Tribunal further found support from non- examination of respondent no. 6 as witness by the appellant. First Information Report shows that the offence for rash and negligent driving was registred against respondent no. 6. The spot panchanama describes situation of the bus immediately after the accident which shows that there was every possibility that the accident occurred due to negligence only on the part of respondent no. 6 in driving the bus. This is further supported by the inaction on the part of appellant to examine respondent no. 6 who was eye witness to the accident, he being driver of the bus at the relevant time. He was the best witness to establish the facts before the Court, but the opportunity was not seized at by the appellant. No ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 ::: 4 explanation has been given by the appellant for not examining respondent no. 6/driver as its witness. Therefore, adverse inference would have to be drawn to the effect that responcent no. 6-driver was not examined as a witness, because he knew that he was completely at fault to cause the accident. This has been rightly concluded by the Tribunal. Therefore, I am of the view that respondents no. 1 to 5 succeeded in proving that the accident occurred solely due to rash and negligent driving by respondent no. 6. Point no. (i) is answered accordingly.
6. Learned counsel for the appellant contends that in the present case, there being no evidence adduced by the claimants to prove the monthly income of the deceased, it should have been determined only on notional basis, which should have been at Rs. 1280/- per month. Learned counsel for respondents no. 1 to 5 submits that it is not in dispute that deceased was the owner of six-sitter auto rickshaw and, therefore, even if no documents or income-tax returns are placed on record by the claimants, income of the deceased should not be calculated only on notional basis, rather it would have to be calculated on reasonable probabilities. He submits that deceased had a large family drawing support from him. There were five members in his family in addition to deceased himself and, therefore, the income determination made by the Tribunal by approximation to be at Rs. 5000/- per month cannot be ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 ::: 5 faulted with. Learned counsel for respondent no. 6 supports the arguments of learned counsel for the appellant.
7. It is true that in the present case, there is no independent evidence adduced by respondents no. 1 to 5 to prove the income of the deceased. But, the fact that the deceased was owner-cum-driver of 6- sitter auto-rickshaw is established on record. It is proved by respondents no. 1 to 5 that deceased himself was plying the vehicle. The deceased was supporting, apart from himself, in all five members in his family. For maintenance of family of six person, a substantial sum of money is required and in the year 2012 when the accident occurred, this sum of money could have been in the range of Rs. 5000-Rs. 10,000 per month. The lowest amount in this range has been taken by the Tribunal to be the average monthly income of the deceased. I do not see any irrationality, arbitrariness or illegality in making of such determination by the Tribunal. On the contrary, it must be realised that to say that an amount of Rs. 1280/- would have been sufficient for the family of six members to maintain in the year 2012, is an irrationality. Therefore, the argument of learned counsel for the appellant made in this behalf is rejected. The Tribunal has rightly determined the monthly income of the deceased to be at Rs. 5000/-.
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 ::: 6
8. Learned counsel for the appellant further submits that auto- rickshaw is a permanent asset and it remains even after departure of the deceased from the material world and as such, this asset can always be managed by the legal heirs of the deceased. She further submits that in such a case at the most somebody would be required to ply the auto- rickshaw by paying him the monthly salary. Therefore, it would be a case wherein the family of the deceased has not suffered complete loss of income on account of untimely death of the deceased and as such, she submits, the monthly income of the deceased be appropriately fixed. Relying upon the judgment of the Hon'ble Supreme Court dated 10 th February 2012 rendered in Civil Appeal No. 1987 of 2012 in the case of New India Assurance Co. Ltd. v. Yogesh Devi & ors, learned counsel contends that income from the 6-sitter auto rickshaw would still continue to accrue to the benefit of the family. In the said case, the deceased had owned three mini buses apart from agricultural land and he was driver on one of the three mini buses. The Apex Court held that not only the agricultural land (as was held by the High Court),being an asset but also the three mini buses would be assets as they would continue to be with the family and fetch income.
9. In the present case, the facts are quite different. The deceased owned only one auto-rickshaw which he himself plied. The ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 ::: 7 deceased admittedly did not have additional business which was managed by him with the help of some other person. There is no evidence to show that after the departure of the deceased from this world, the asset in the nature of auto-rickshaw continued to be with the claimants. Then, there is no evidence available on record showing that regular plying of the auto-rickshaw by the family with the help of a hired driver was continued after the death of its owner and, therefore, , it would not be possible to deduct salary of the manager or driver of the auto-rickshaw hired by family members of the deceased from the monthly income, there being none. Then, the income of the deceased determined by approximation by the Tribunal is also of lowest possible figure leaving no scope for making further deductions from it. All these facts taken together would show that they are distinct in nature and different from the facts of the case of Yogesh Devi (supra) and, therefore, the ratio laid down in that case would have no application to the case in hand.
9. In the recent judgment in SLP (C) No. 25590 of 2014 (National Insurance Company Limited v. Pranay Sethi & ors) rendered on 31st October 2017, the Hon'ble Supreme Court has set at rest the controversy regarding consideration of future prospects and so also the selection of multiplier. In the present case, the deceased was self- employed and was below the age of 40 years and, therefore, as per the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 ::: 8 aforesaid judgment of Hon'ble Apex Court, 40% of the established income should be added on account of future prospects. Additional compensation on account of loss of estate; loss of consortium and funeral expenses at Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively as per the above judgment would have to be given. Appropriate multiplier, considering the age of 34 years of the deceased as per his driving licence, as held in the case of Sarla Verma (Smt) & ors v. Delhi Transport Corporation & anr reported in (2009) 6 SCC 121, would be "16". Thus calculated, the compensation that would be payable to the respondents no. 1 to 5 would be as follows :
(a) Monthly income including future
prospects .. Rs. 7,000/-
(b) Annual income (Rs. 7000 x 12) .. Rs. 84,000/-
(c) Less: 1/4th deduction on account of
personal expenses .. Rs. 21,000/-
(d) Loss of dependency- (Rs. 84,000 .. Rs. 63,000/-
minus Rs. 21,000/-)
(e) Compensation payable by applying .. Rs. 10,08,000/-
multiplier of "16" (Rs. 63,000 x 16)
(f) Compensation payable on account of loss .. Rs. 70,000/-
of estate; loss of consortium and funeral
expenses (Rs. 15,000/-, Rs. 40,000/- and
Rs. 15,000/- respectively)
Total compensation payable .. Rs. 10,78,000/-
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 :::
9
10. In the result, respondents no. 1 to 5 would be entitled to receive compensation of Rs. 10,78,000/- inclusive of no fault liability together with interest at the rate of 7.5% per annum from the date of petition till realization and shall be jointly and severally paid by appellant and respondent no. 6. Point is answered accordingly.
11. In the result, Impugned judgment and order stand modified in the above terms. The claimants are permitted to withdraw the amount already deposited in this Court and if any compensation amount has remained to be deposited by the appellant in terms of this order, the same may be done within two months from the date of order and after such deposit being made, the claimants will be permitted to withdraw the same except for the amount of Rs. 4 lacs which would be invested in fixed deposit account for a period of five years from the date of deposit in the name of respondents no. 3 and 4, with each getting Rs. 2 lacs invested in their names and the FDR to be obtained separately for the amount of Rs. 2 lacs in the name of each of these respondents. No costs.
S. B. SHUKRE, J joshi ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:25:26 :::