Nalini And Ors. vs Vijayprasad And Ors.
2004 Latest Caselaw 522 Bom

JUDGMENT

S.T. Kharche, J.

1. These two appeals involve common questions and, therefore, can be conveniently disposed of by this common judgment. The original claimants have filed First Appeal No. 206 of 1997 taking an exception to the award passed by the learned Member, Motor Accidents Claims Tribunal in Claim Petition No. 262 of 1997, whereby the Tribunal awarded compensation of Rs. 56,000 to claimants with interest at 12 per cent per annum from the date of the application till realisation mainly on the ground that the compensation awarded is grossly inadequate. Whereas First Appeal No. 15 of 1997 has been filed by New India Assurance Co. Ltd. against the same award passed by Claims Tribunal on the ground that the Tribunal wrongly fastened the liability on it to indemnify the owner and that the owner of the vehicle has been exonerated from the payment of compensation.

2. Brief facts are required to be stated as under.:

Mukundrao Bhoyar died as a result of the accident arising out of the use of motor vehicle, namely, scooter bearing No. MGV 7400 and this motor vehicle is owned by respondent No. 1 and the said vehicle has also been duly insured with New India Assurance Co. Ltd., respondent No. 2. Respondent No. 1 had given this scooter for repairs in the garage of respondent No. 3 who is a repairer. The accident occurred on 1.4.1985 at about 18.30 hours. Deceased Mukundrao was riding a bicycle from Ajni towards Takiya Dhantoli and when he reached near the All India Reporter Building, Dhantoli, one Raju Martine had come on scooter bearing No. MGV 7400 in a very high speed from the opposite direction and by coming on the wrong side gave violent dash to the bicycle. Consequently, Mukundrao Bhoyar fell down and sustained grievous injuries. He was immediately removed to the Government Medical College and Hospital where he succumbed to the injuries on the next day. Post-mortem examination was conducted there and the doctor opined that the probable cause of death was due to intra cranial haemorrhage due to head injury. The claimants being the widow, major sons and a daughter, who are the legal representatives of the deceased, had filed an application under Section 110-A of the Motor Vehicles Act, 1939. It is contended that the scooter was being driven in a rash and negligent manner on the relevant date and time and that all respondents were jointly and severally liable to pay compensation. It was further contended that the age of the deceased was around 45 years at the time of the accident, he was a businessman and his monthly income was not less than Rs. 1,500 from the business of printing press and besides he had taken voluntary retirement from service. It is contended that he used to contribute Rs. 1,200 per month for the up-keepment and maintenance of the family members and, therefore, claimants claimed a total compensation of Rs. 1,92,000 inclusive of compensation for the loss of consortium, mental agony, suffering and funeral expenses with interest and costs.

3. The respondent insurance company resisted the claim and contended that the scooter was being driven by respondent No. 3 without holding the valid licence and the owner of the motor vehicle involved in the accident did not adduce any evidence to show that he was not liable to pay compensation. It was contended that since the driver of the scooter was not holding a valid licence, insurance company cannot be made liable to pay the amount of compensation and the claim petition is liable to be dismissed. On the aforesaid pleadings, the Claims Tribunal has framed the issues. The claimants examined three witnesses and relied on oral as well as documentary evidence placed on record in support of their contentions. The insurance company did not examine any witness in support of its contentions. Tribunal on considering the evidence and material available, recorded the finding that Mukundrao Bhoyar died as a result of accident arising out of the use of the motor vehicle and that the scooter was being driven in a rash and negligent manner by the respondent No. 3 on the relevant date and time without permission of the scooter owner, respondent No. 1 and exonerated the owner of scooter, respondent No. 1, from liability to pay the amount of compensation. Tribunal also recorded the finding that insurance company, respondent No. 3, cannot be absolved from liability to pay compensation and consequently directed the respondent Nos. 2 and 3 to pay jointly and severally the total amount of compensation of Rs. 56,000 by the award dated 19.3.1996. This award is under challenge in this appeal.

4. Mr. Malvi, learned Counsel, for the claimants contended that the age of the deceased was 54 years at the time of the accident and he was drawing the income of Rs. 1,500 per month from the business of printing press and, therefore, Tribunal ought to have considered this much income while computing the loss of dependency. He contended that the deceased had taken voluntary retirement from his service and had started the business of printing press and out of that income he used to contribute Rs. 1,200 per month for the maintenance and upkeepment of his family members. He contended that though the Tribunal correctly applied the multiplier of 15 years' purchase factor, the Tribunal has wrongly assessed the loss of dependency at Rs. 600 per month or Rs. 7,200 per year. He contended that Tribunal has committed an error in deducting the amount of Rs. 300 per month or Rs. 3,600 per year for 15 years amounting to Rs. 54,000 on account of family pension which claimant widow is getting after the death of Mukundrao Bhoyar. He contended that the compensation awarded by the Tribunal is grossly inadequate and cannot be sustained in law. In support of these submissions, he relied on the decision of the Hon'ble Supreme Court (Sic. Bombay) in the case of United India Insurance Co. Ltd. v. Abdul Munaf Majur Hussain Momin 1984 ACJ 653 (Bombay) and the decisions of this court in the case of Chhaya Ankush Singan v. Ashok Narayan More 1986 ACJ 379 (Bombay) and in the case of Sharifunnisa v. Basappa Ramchandra Date 1986 ACJ 792 (Bombay).

5. He also contended that the deceased would have earned a handsome amount from his business in future as he had taken voluntary retirement from the service and, therefore, the total loss sustained by the claimants was not less than Rs. 1,92,000 including the loss on account of other items. In support of these submissions he relied on the decision of the Supreme Court in the case of Helen C. Rebello v. Maharashtra State Road Trans. Corpn. .

6. None present for respondent Nos. 1 and 3.

7. Mr. Khare, learned Counsel, holding for Mr. Anand Parchure, learned Counsel for the insurance company contended that the respondent No. 3 is the repairer in the garage whereas the owner of the scooter, respondent No. 1, had given his scooter MGV 7400 for repairs to the repairer on 1.4.1985. He contended that on the fateful day the repairer was driving the scooter without holding the valid driving licence and in such circumstances the insurance company is not liable to pay compensation as there is breach of the terms and conditions of the insurance policy. He contended that the Tribunal has wrongly exonerated the owner of the scooter from payment of compensation to the claimants especially when the liability of the owner of the motor vehicle and that of the insurance company is joint and several and that the insurance company is liable to indemnify the owner. He, therefore, contended that the Tribunal has committed an error in exonerating the owner of the scooter from the payment of compensation and the impugned award cannot be sustained in law.

8. This court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not in dispute that Mukundrao Bhoyar died as a result of accident arising out of the use of the motor vehicle, i.e., scooter MGV 7400 and that this scooter was being driven in a rash and negligent manner by respondent No. 3 who was the repairer in the garage where the scooter was given by respondent No. 1 for its repairs. It is also not in dispute that the said motor vehicle involved in the accident has been duly insured with New India Assurance Co. Ltd., respondent No. 2 and the insurance policy was covering the date of the accident.

9. The only grievance that has been put forth by the claimants is that the compensation awarded by the Tribunal is grossly inadequate and may kindly be enhanced to the tune of Rs. 1,92,000. The Tribunal considered the evidence and observed that the age of the deceased was 55 years at the time of the accident and, therefore, the application of multiplier of 15 years' purchase factor would be just and reasonable. The Claims Tribunal assessed the loss of dependency at Rs. 7,200 per year and held that the claimants would be entitled to the compensation of Rs. 56,000 in all after deducting the amount of Rs. 300 per month or Rs. 3,600 per year for 15 years which the claimant widow is receiving by way of family pension. Tribunal, therefore, while computing the compensation reached the conclusion that the claimants would be entitled to receive the amount of Rs. 32,400 + Rs. 20,000 towards loss of consortium, mental agony, suffering to which is added Rs. 3,000 on account of funeral expenses and Rs. 600 on account of damages to the bicycle making the total compensation to the tune of Rs. 56,000.

10. On close scrutiny, it would reveal that though age of the deceased Mukundrao Bhoyar has been stated to be 45 years at the time of accident, the post-mortem report and evidence of the doctor would reveal that the age of the deceased was 55 years at the time of conducting the postmortem examination. The age mentioned in the post-mortem report is relevant and deserves to be accepted. However, it follows that the age of the claimant widow must -have been around 50 or 52 years at the time of the accident and the age of the claimant Nos. 2, 3,4 and 5 must be ranging from 16 years to 36 years. Only one son was minor, when Mukundrao Bhoyar died in the accident.

11. In the landmark judgment of Apex Court in General Manager, Kerala State Road Trans. Corpn. v. Susamma Thomas , Apex Court considered the application of the multiplier method and in the case applied the multiplier of 12 years' purchase factor because age of the deceased was 39 years and the deceased was drawing the amount of Rs. 1,032 per month. It has been specifically observed in para 13 as under:

In the present case the deceased was 39 years of age and his income was Rs. 1,032 per month. Of course, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. While the choice of the multiplier is determined by two factors, namely, the rate of interest appropriate to a stable economy and the age of the deceased or the claimant, whichever is higher, the ascertainment of the multiplicand is a more difficult exercise. Indeed, many factors have to be put into the scales to evaluate the contingencies of the future. AH contingencies of the future need not necessarily be baneful. The deceased person in this case had a more or less stable job. It will not be inappropriate to take a reasonably liberal view of the prospects of the future and in estimating the gross income it will be unreasonable to estimate the loss of dependency on the present actual income of Rs. 1,032 per month. We think, having regard to the prospects of advancement in future career, respecting which there is evidence on record, we will not be in error in making a higher estimate of monthly income of Rs. 2,000 as the gross income. From this has to be deducted his personal living expenses, the quantum of which again depends on various factors such as whether the style of living was Spartan or Bohemian. In the absence of evidence it is not unusual to deduct one-third of the gross income towards the personal living expenses and treat the balance as the amount likely to have been spent on the members of the family and the dependants. This loss of dependency should capitalize with the appropriate multiplier. In the present case, we can take about Rs. 1,400 per month or Rs. 17,000 per year as the loss of dependency and if capitalized on a multiplier of 12, which is appropriate to the age of the deceased, the compensation would work out to (Rs. 17,000 x 12 : Rs. 2,04,000) to which is added the usual award for loss of consortium and loss to estate each in the conventional sum of Rs. 15,000.

12. This court may usefully refer to another landmark judgment of the larger Bench of the Supreme Court in the case of U.P. State Road Trans. Corpn. v. Trilok Chandra , wherein it has been observed in para 18 as under:

We must at once point out that the calculation of compensation and the amount worked out in the Schedule suffer from several defects. For example, in item No. 1 for victim aged 15 years, the multiplier is shown to be 15 years and the multiplicand is shown to be Rs. 3,000. Total should be Rs. 3,000 x 15 : Rs. 45,000 but the same is worked out at Rs. 60,000. Similarly, in the second item the multiplier is 16 and the annual income is Rs. 9,000; total should have been Rs. 1,44,000 but is shown to be Rs. 1,71,000. To put it briefly, the Table abounds in such mistakes. Neither the Tribunals nor the courts can go by the ready reckoner. It can only be used as a guide. Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependants are his parents, age of the parents would also be relevant in the choice of multiplier. But these mistakes are limited to actual calculations only and not in respect of other items. What we propose to emphasise is that the multiplier cannot exceed 18 years' purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16. We thought it necessary to state the correct legal position as the courts and Tribunals are using higher multiplier as in the present case where the Tribunal used the multiplier of 24 which the High Court raised to 34, thereby showing lack of awareness of the background of the multiplier system in Davies' case (1941) AC 601.

13. In view of the aforesaid settled position of law, it is quite obvious that the multiplier cannot exceed 18 years' purchase factor in any case and while adopting the multiplier various factors are to be taken into consideration including the age of the deceased and the age of the dependants also. In the present case, the age of the deceased was 55 years and considering the age of the widow and the dependants it is quite obvious that the multiplier adopted by the Tribunal was on higher side. This court is of the considered opinion that the Claims Tribunal ought to have applied the multiplier of 10 years' purchase factor instead of 15 years' purchase factor.

14. Now, so far as the income of the deceased is concerned, evidence has been led to show that the deceased had taken voluntary retirement and he was carrying on the business of printing and was earning Rs. 1,500 per month out of which he used to contribute Rs. 1,200 per month for the maintenance and upkeepment of his family members. Unfortunately, no documentary evidence has been led to prove the exact income of the deceased after he took voluntary retirement. His age was 55 years and, therefore, it is not possible to accept that he was carrying on the business of printing press and was earning not less than Rs. 1,500 per month. The Tribunal was perfectly justified in rejecting the contention of claimants that the deceased was earning money from the business, for want of any documentary evidence produced on record.

15. However, the Tribunal considered the circumstances that the claimant widow is getting family pension of Rs. 300 per month and, therefore, according to the Tribunal the claimants have suffered the loss of Rs. 600 or Rs. 7,200 per year, but after deducting the amount which was being received by the claimant widow, it awarded the compensation of Rs. 56,000.

16. In the context, the learned Counsel for the claimants has rightly relied on the Division Bench decision of this court in United India Insurance Co. Ltd. v. Abdul Munaf Majur Hussain Momin 1984 ACJ 653 (Bombay), wherein ratio has been laid down that it will not be permissible to deduct the amount of family pension payable to the claimants. The learned Counsel also relied on the Division Bench decisions of this court in (1) Chhaya Ankush Singan v. Ashok Narayan More 1986 ACJ 379 (Bombay) and (2) Sharifunnisa v. Basappa Ramchandra Date 1986 ACJ 792 (Bombay), wherein it has been lajd down that deduction on account of gratuity, provident fund and family pension would not be admissible while assessing the loss of dependency.

17. In view of the aforesaid legal position, it is obvious that while computing the loss of dependency it is not permissible to make deductions on account of family pension, gratuity, provident fund, life insurance premium, etc. Therefore, the Tribunal was not justified in deducting the family pension which the claimant widow is getting after the death of Mukundrao Bhoyar. However, the Claims Tribunal was perfectly justified in deducting 20 per cent on account of personal living expenses because it is not unusual to deduct 1/3rd on account of personal living expenses and treat the balance as loss of dependency.

18. In such circumstances, it is obvious that the income of deceased was Rs. 600 per month which has been assessed by the Tribunal on account of the loss of dependency after deducting 73rd on account of personal living expenses, we can take about Rs. 400 per month or Rs. 4,800 per year as the loss of dependency and if capitalized on a multiplier of 10 years' purchase factor, the compensation would work out to Rs. 48,000 to which is added that usual award for the loss of consortium, mental agony and suffering in the conventional sum of Rs. 15,000 and to which is further added the funeral expenses to the tune of Rs. 3,000 and the total amount of compensation would thus work out to Rs. 66,000. Though the Claims Tribunal had adopted multiplier of 15 years' purchase factor and deducted half amount on account of family pension, etc., the figure of compensation reached by Tribunal is Rs. 56,000. In these circumstances, this court does not find any reason to take a different view of the matter and it is not possible to accept the contention of the learned Counsel for the appellants that the compensation awarded is grossly inadequate except that the award deserves to be modified to the extent of Rs. 10,000 only.

19. That takes this court to consider the question of liability. Learned Tribunal has exonerated owner of the scooter involved in the accident, respondent No. 1, from the liability to pay the compensation on the ground that the mechanic from the garage, respondent No. 3, drove the scooter without his permission and, therefore, the owner would not be liable to pay compensation. Tribunal, however, directed the insurance company, respondent No. 2 and the mechanic, respondent No. 3, who was driving the scooter, to pay jointly and severally the amount of compensation to the claimants. On close scrutiny, it would reveal that the insurance company did not adduce any evidence to show that the scooter was being driven by respondent No. 3 without holding valid driving licence. No officer from the Regional Transport Office has been examined to show that respondent No. 3 did not obtain the driving licence from that office. In such circumstances, this court does not find any force in the defence put forth by the insurance company that there was breach of the terms and conditions of the insurance policy and the motor vehicle involved in the accident was driven by respondent No. 3 without holding valid driving licence.

20. However, it would clearly reveal that it is the respondent No. 1, who is the owner of the scooter involved in the accident, had entrusted the scooter to the mechanic for repairs and it has to be presumed that he has allowed the use of the scooter by the mechanic who was the servant and, therefore, the master and servant would be vicariously liable to pay compensation. The scooter is admittedly insured with respondent No. 2 covering the third party risk and, therefore, it is obvious that the insurance company would be liable to indemnify the owner of the scooter involved in the accident. In such circumstances, this court does not find any force in the defence of the insurance company that the scooter was being driven without permission of the scooter owner and, therefore, there was a breach of the terms and conditions of the insurance policy as per Section 96(2) of the Motor Vehicles Act. The insurance company did not bother to produce the original or office copy of the insurance policy on record and, therefore, this court cannot subscribe to the defence put forth by the insurance company that there was breach of terms and conditions of the insurance policy. In these circumstances, it is quite obvious that no case has been made out for interference in both these appeals and, therefore, they are dismissed with no order as to costs except with the slight modification in the award and thus respondents are directed to pay jointly and severally Rs. 10,000 (Rs. 66,000 - Rs. 56,000) to the claimants with interest at the rate of 9 per cent per annum from the date of the balance unpaid amount till realisation.