Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 15 December, 2009
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 171 of 2000
Appellants : 1) Namdeo Tulshiram Daiwate, aged
about 48 years,
2) Sau Asha Namdeo Daiwate, aged
ig about 45 years,
3) Ku Rekha Namdeo Daiwate, aged
25 years
4) Dinesh Namdeo Daiwate, aged about
18 years,
5) Sharad Namdeo Daiwate, aged about
17 years
Nos. 4 and 5 being minor, through
next friend-father Namedeo Tulshiram
Daiwate.
All residents of New Tarfile, Akola.
Versus
Respondents : 1) Gurumajursingh Autarsingh Chhatwal
aged about 48 years, occ: transporter
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2
resident of c/o Rajpalsingh Bldg.,
Opp. Shivaji Park, Akola
2) Mohd Usman Mohd Hanif, aged about
36 years, occ: driver, resident of
near Majid, Chand Khan Plots, Akola
3) National Insurance Company Ltd.,
through its Branch Office, Gandhi
Road, Akola.
Mr C.A. Joshi, Advocate for appellants
Mr S.K. Borkar, Advocate for respondent no.3.
Coram : A.P. Bhangale, J
Dated : 15th December 2009
Judgment.
1. By this appeal under Section 173 of the Motor
Vehicles Act, appellants-claimants challenge judgment
and award dated 16.11.1998 passed by the Additional
Member, Motor Accident Claims Tribunal, Akola in MACP No.
113 of 1995.
2. Facts
briefly stated are :-
Unfortunate Vinod Namdeo Daiwate, aged about 19
years, died in motor vehicle accident occurred on
21.10.1994 at about 4 to 5 p.m. at Rashia-Dhangaon
District Khandwa while he was working as cleaner on motor
Truck No. MTV/2622 driven rashly and negligently by
respondent no.2. The truck was insured with respondent
no. 3 National Insurance Company Limited. The deceased
was earning Rs. 1500/- per month as salary as also
bhatta/extra allowance at the rate of Rs. 40/- per day.
3.
Appellant no. 1 deposed in support of the
claim. No other evidence was led. The Tribunal granted
compensation in the sum of Rs. 1,68,000/-.
4. Learned Advocate for the appellants in support
of appeal submitted that there was no challenge to the
evidence led on behalf of claimants. The driver and
owner though served remained absent and the insurance
Company chose not to contradict evidence led on behalf of
claimant as it did not lead any evidence to the contrary.
5. According to learned counsel for the
appellants, deceased was a young boy, aged about 19 years
and a cleaner on the truck earning Rs. 2400/- per month
and appellants were dependent on him at the time of his
death. The compensation ought to have been computed on
that basis with appropriate multiplier which, according
to learned Advocate for appellants, is 18. Learned
Advocate for appellants also submitted that additional
compensation for damage on account of untimely death of
victim i.e. loss of love and affection; funeral expenses
etc. ought to have been
ig granted along with 12% interest
on the amount of award.
6. Learned Advocate for the Insurance Company
opposed these submissions contending that award granted
was just and cannot be excessive. He also submitted that
there was no documentary evidence about salary and
allowances of the deceased. Hence, award in the facts
and circumstances was proper and need not be interfered.
7. My attention is drawn by learned Advocate for
appellants to the ruling in Sarla Verma and ors v. Delhi
Transport Corporation and anr reported in 2009 (5)
Mh.L.J. 775 (SC) which laid down guidelines for just
compensation and the manner of assessing the same. I have
perused the ruling.
8. It appears from the evidence led before the
Tribunal that testimony of appellant no.1 Namdeo (father
of victim) was believed and monthly income of victim was
accepted as Rs. 1500/- per month. Daily allowance
(bhatta) of Rs. 40/- per day appears left out of
consideration by
ig the Tribunal for no reason. The
appellant Namdeo deposed that his son Vinod was earning
bhatta (daily allowance) at the rate of Rs. 40/- per day.
Thus, taking into account the tour of deceased on truck
for at least twenty days per month, the amount of earning
by way of daily allowances would be Rs. 800/- per month.
Thus, total monthly earning of the deceased prior to the
time of accident was Rs 1500 + Rs. 800 = Rs. 2300/- and
number of dependents upon him at the time of accident
were five. The deceased was a bachelor. Hence, after
deducting one-third amount towards his personal expenses
of Rs. 766/-, the net income available for the dependents
was Rs. 1534/- per month. Considering life expectancy,
future earning and contribution that deceased would have
made had he been alive; bearing in mind prospects of
better wages and better employment and at the same time
brothers and sisters of deceased would become independent
in near future by earning themselves as also not
overlooking possibility, premature death of Vinod or his
dependent including future prospects and growing
inflation and imponderables that may enter into mind and,
therefore, the average loss of income for the dependents
per month can safely be computed on the enhanced basis of
Rs. 1600/- per month at multiplicand of Rs. 19,200/- per
year. The multiplier has to be appropriate considering
the age of deceased as also ages of parents and other
dependents. There is no rigid rule or mathematically
exact formula of universal application. The relevant
factors considered objectively and collectively bearing
in mind ages of dependents and age of the deceased and by
juxtaposing or off-setting the balance on the basis of
guidelines for assessing the just compensation.
9. The rough and ready broad formula that crops up
in mind on the basis of leading rulings on the subject in
respect of motor vehicle accidental death compensation
claims by the dependents towards pecuniary loss is to
ascertain multiplicand of net annual loss of dependency
after deducting self-maintenance or personal expenses of
the deceased and then to multiply it by an appropriate
multiplier so as to ensure that dependents can get the
capital amount that would in normal course yield interest
equal to the monthly or yearly dependency for the period
of dependency expected to last. To explain it in terms
of formula :-
Monthly earnings of the deceased (-) Personal
expenses/self-maintenance depending upon number of
dependents in family = Loss of monthly dependency x 12 =
annual loss of dependency multiplied by a chosen,
multiplier which is appropriate (as guided in Sarla
Verma's case (supra)
= Loss of dependency for expected period.
+ Funeral expenses.
+ Loss of love and affection.
+ Loss of consortium for widow/widower, as the
case may be.
+ Loss of estate
= Total compensation for motor-vehicle fatal accident
claim
+ simple interest payable under Section 171 of the
Motor Vehicles Act till payment
= Just and fair compensation (inclusive of
no-fault liability paid).
It has to be borne in mind that the
compensation amount is just, fair and equitable in the
facts and circumstances of the case and not a bonanza,
largesse or source of profit as observed in Sarla Verma's
case (supra). The Apex Court suggested deduction of
personal expenses from the net annual earnings of the
deceased tabularised by me as under :
(A). If deceased was bachelor (unmarried).
Deduction of self Dependents
maintenance
50 per cent (half) Parents
1/3rd (One-third) Parents; brothers;
sisters.
(B). If deceased was married -
Deduction for Dependents
self-maintenance
One-third 2/3rd
One-fourth 4 to 6
One-fifth 6 or more
10. I think appropriate multiplier would be fixed
at "16" in the facts and circumstances of the case.
Thus, Rs. 19,200 x 16 = Rs. 3,07,200/- would be loss of
dependency for the claimants. In addition, they are
entitled to
general damages for death of Vinod in the
form of loss of love and affection; funeral expenses etc.
which are added as Rs. 5000/- + Rs. 5000/- = Rs.
10,000/-. Thus, total compensation computed is Rs.
3,17,200/-. Hence, claimants are entitled to the award
of Rs. 3,17,200/- plus simple interest payable under
Section 171 of the Act which shall be at the reasonable
rate of 6% per annum on the awarded amount from the date
of petition till realisation. That would be fair and
just compensation. As observed in Ningamma v. United
India Insurance Co. Ltd. Reported in AIR 2009 SC 3056
(para 25), the Court is duty-bound and entitled to award
"just compensation" irrespective of the fact whether any
plea in that behalf was raised by the claimant or not.
In the facts and circumstances, the enhanced amount of
compensation along with simple interest and costs of
prosecuting the claim as awarded shall be paid to the
parents of the victim Vinod. The respondents shall be
jointly and severally liable to pay the compensation
accordingly in the sum of Rs. 3,17,200/- along with
reasonable simple interest at the rate of 6% per annum on
the awarded amount from the date of petition till
realisation. The award impugned is modified accordingly.
The amount already paid/deposited be adjusted
accordingly. The appeal is partly allowed with costs
throughout in above terms.
A.P. BHANGALE, J
hsj
