Bombay High Court
Smt. Archana Sandip Purandare vs Shri Dawoodsab Ladlesab Walikar on 12 December, 2013
Bench: S.C. Dharmadhikari, R.Y. Ganoo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.872 OF 2012
1. Smt. Archana Sandip Purandare
Age 42 years, Occ: Housewife
2. Ku. Swarali Sandip Purandare
Age 10 years, Occ: Student.
3. Shri Shashikant Raghunath Purandare
(since deceased through its legal heirs
3a) Sou. Madhavi Shashikant Purandare
Age.72 years, Occ: Housewife
3b) Shri Sanjay Shashikant Purandare
Age 50 years, Occ: Service,
Both res. at Pramanik Society
2nd floor, Sir P.M.Road, Flat No.202,
Vile Parle (E), Mumbai.
3c) Sou. Archana Sandip Purandare,
Age 45 years, Occ: Housewife,
res. at Sarita, Nishigandha,
F-8/10, Sarita Nagari,
Phase-I, Ganesh Mala,
Sinhagad Road, Pune.
4. Mrs. Madhavi Shashikant Purandare,
Age 69 years, Occ: Housewife,
res. at Flat No.8, Raghav.
Shri Rahuraj Society, 118-A
Sinhagad Road, Pune 30 .. Appellant
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v/s.
1. Shri Dawoodsab Ladlesab Walikar
Age 55 years, Occ: Business.
Res. at (a) Green Gate
Opp. Bench Police Chowky,
Gilbeart Hill Road,
Andheri (West),
Mumbai.
(b) A-Wing, 402, A.G.Nagar,
Western Express Highway,
Kashimira Road (E),
Thane.
2.
Shri Bimappa Balappa Harijan
Age 47 years, Occ: Driver,
Res. at Janata Colony,
Malikaarjun Chawl,
Gilbert Hill Road,
Near Navrang Theatre,
Andheri (West),
Mumbai.
3. The Oriental Insurance Company Ltd.,
having its regional office at
May Fair Towers,
Old Pune Mumbai Highway,
Wakadewadi, Pune ..Respondent/s
Mr. Shriram S.Kulkarni for the Appellants
None for the Respondent Nos.1 and 2.
Mr.Sanjay Krishnan i/b. Leges Consultus for the Respondent No.3.
pps 2/25
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CORAM : S.C.DHARMADHIKARI,
& R.Y.GANOO, JJ.
DATED : DECEMBER 12, 2013
JUDGMENT (PER R.Y.GANOO, J.) :
1. The appellants are challenging the award dated 5.12.2011 passed
by the learned Addl. Member, Motor Accident Claim Tribunal, Pune
in Claim Petition No.1215 of 2007. Few facts necessary for disposal
of this first appeal are as under:-
2. The appellant no.1 married one Sandip Purandare. The
appellant no.2 is the daughter born out of said marriage between
appellant no.1 and said Sandip. The original applicant no.3
Shashikant was the father of said Sandip. During pendency of the
said petition, said Shashikant expired. Hence present appellant nos.3a
to 3d were brought on record as heirs of said Shashikant. This was
done during the pendency of claim petition. The appellant no.4 is
mother of said Sandip. She was also impleaded as heir of said
Shashikant. The appellant no.3b is brother of said Sandip and is
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shown as such in his capacity as heir of said Shashikant. The
appellant no.3(c) Mrs. Archana is the heir of said Shashikant and has
been brought on record in the said capacity.
3. It is the case of the appellants that on 5.7.2007 at about 7.15
a.m., said Sandip Deshpande, since deceased (hereafter referred to as
said Sandip) was riding Hero Honda Motor Cycle bearing Registration
No.MH 02 AJ 5240 on Western Express Highway, Mumbai.
ig Said
Sandip was proceeding from Vile Parle towards Mumbai in moderate
speed. According to the appellants at Gold Spot junction, below the
over bridge a truck (dumper) bearing registration No.MH 04 BG 9913
came from Andheri side in excessive speed and gave dash to said
Sandip. On account of the said impact, said Sandip sustained
grievous injuries and he died on the spot. The police had after due
investigation filed the chargesheet against the respondent no.2 i.e. the
driver of the said truck under Section 304A of the Indian Penal Code.
Present respondent no.1 is the owner of the said truck. The
respondent no.2 was the driver of the said truck at the time of the
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aforesaid incident. The respondent no.3 is insurance company with
whom the said truck was insured. On account of death of said Sandip,
present appellant no.1, appellant no.2, said Shashikant (since
deceased) and appellant no.4 filed an application for compensation
before the Motor Accident Claims Tribunal at Pune. (hereinafter
referred to as the said Tribunal). That application was numbered as
Claim Petition No.1215 of 2007. The original applicants applied for
compensation by contending that said Sandip was working in Larsen
and Tubro Ltd., and was earning a substantial salary to the tune of
Rs.43,693/- and was getting annual performance linked reward to the
extent of Rs.65,000/-. According to the original applicants they were
entitled to get compensation for the reasons pleaded in the said claim
petition. The compensation was claimed on various counts more
particularly stated in the said claim petition.
4. The claim petition was opposed by Respondent No.3. It was
decided ex-parte so far as respondent nos.1 and 2.
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5. On behalf of the present appellants, appellant no.1 Archana gave
evidence as P.W.1. Shashikant, father of said Sandip gave evidence as
P.W.2. One Mr. Sharma was examined as P.W.3 by the present
appellants. Said Sharma was in the employment of Larsen and Tubro
Ltd. He was examined to prove the income of Sandip. It is required
to be noted that after the death of Sandip present appellant no.1
married one Mr. Sandip Raikar. Said Sandip Raikar is earning a sum
of Rs.30,000/- by way of salary. The appellant no.1 is also working
with an organization known as Bharti Hospital, Pune as dietician.
Learned Member of the said Tribunal framed following issues:
"1) Whether the applicant proves that deceased died due
to rash and negligent driving of the driver of the vehicle
no.MH.04/BG/9913 owned by opponent no.1 and insured
with opponent no.3?
2) Whether the applicants prove that deceased was
earning Rs.43,993/- per month?
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3) Whether applicants further prove that deceased was
getting Rs.65,000/- p.a. towards performance onwards
2006?
4) Whether the applicants are entitled to compensation
as claimed? If yes, to what extent?
5) What award?
6. The learned Tribunal answered issue no.1 in the affirmative. It
held issue no.2 is partly proved. Issue no.3 was answered in the
negative. Issue nos.4 and 5 were decided as per the operative part of
the order, namely grant of total compensation of Rs.30 lakhs inclusive
of NFL amount along with interest at the rate of 8% per annum from
the date of application till realization.
7. The appellants i.e. heirs of said Sandip have challenged the said
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award as they were of the view that the said Tribunal has not
considered the evidence on record in the proper perspective. Learned
Advocate Mr. Kulkarni, appearing on behalf of the present appellants
submitted the following points so as to challenge the impugned award.
8. It was submitted by learned Advocate Mr. Kulkarni that the
learned member erred in holding that the annual salary income was
Rs.3,15,252/- before deduction of income tax and profession tax.
Learned Advocate Mr.Kulkarni had drawn our attention to Exhibit 43
which shows that said Sandip was promoted with effect from July
2007 and his monthly salary was Rs.41,610/-. Learned Advocate
Mr.Kulkarni submitted that if the monthly salary is treated as
Rs.41,610/- the annual salary of said Sandip would be Rs.4,99,320/-
before deduction of income tax and profession tax. According to
learned Advocate Mr.Kulkarni while calculating the income of said
Sandip the learned Tribunal should have taken into account
Rs.4,99,320/- as annual salary of said Sandip and should have gone
ahead to calculate the income of said Sandip. Learned Advocate Mr.
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Kulkarni had submitted that after deduction of income tax of
Rs.98,796/-, education cess of Rs.2964/- and profession tax of
Rs.2,500/- the annual income of said Sandip should have been treated
as Rs.3,95,360/-. He submitted that the figure of Rs.3,95,360/- should
hae been treated as annual salary of said Sandip for the purpose of
calculating compensation.
9. Learned Advocate Mr. Kulkarni had further submitted that the
learned Tribunal erred in deducting 1/3 rd of the annual salary towards
personal and living expenses of the deceased. In so far as this point
is concerned, learned Advocate Mr. Kulkarni submitted that the
learned Tribunal should have noted that on the day when the incident
had taken place i.e. on the day when Sandip expired, the total number
of family members dependent upon said Sandip were 4, namely the
appellant no.1, appellant no.2, original applicant Shashikant-father,
and appellant no.4. Learned Advocate Mr. Kulkarni therefore
submitted that in accordance with the judgment of the Supreme Court
in the case of Sarla Varma vs. Delhi Transport Corporation, reported
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in (2009) 6 SCC 121, taking into consideration the number of
dependents as four, the learned Tribunal should have deducted 1/4 th of
the annual salary towards personal and living expense of said Sandip.
Learned Advocate Mr. Kulkarni therefore submitted that to this extent
the learned Tribunal has committed an error and is required to be
corrected by this court in its appellate jurisdiction. Learned Advocate
Mr, Kulkarni submitted that if the aforesaid submissions are accepted,
the annual salary of said Sandip should be treated as Rs.2,96,295/-.
10. It was submitted by learned Advocate Mr.Kulkarni that the said
Tribunal failed to add to the income of said Sandip an amount towards
future increase in his annual income on account of length of the
service.
11. Learned Advocate Mr. Kulkarni submitted that the Tribunal
should have added 50% of the amount arrived at after multiplying
figure of Rs.2,96,295/- by multiplier 15. According to him such
addition ought to be to the extent of 50% as per the judgment in the
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case of Sarla Varma (Supra). Learned Advocate Mr. Kulkarni
therefore submitted that on the basis of his submission earlier
advanced, namely taking into consideration the annual salary of said
Sandip at Rs.2,96,295/- and multiplying this figure by 15 the total
salary turns out to be Rs.44,44,425/-. He, therefore, submitted that
50% of Rs.44,44,425/- namely Rs.22,22,213/- should have been added
to arrive the total income of said Sandip. Learned Advocate Mr.
Kulkarni submitted that according to him total income of said Sandip
should be treated as Rs.66,66,638/-.
12. Learned Advocate Mr. Kulkarni submitted that the learned
Tribunal has not granted costs. He submitted that appropriate order
granting costs be passed in the interest of justice.
13. The respondent nos.1 and 2 have remained absent at the time of
hearing of this appeal. The respondent no.3 insurance company is
represented through learned Advocate Mr. Krishnan. It is required to
be noted that the insurance company has not filed any appeal
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challenging the grant of compensation. The finding recorded by the
learned Tribunal as regards involvement of the respondent no. 2 in the
accident will have to be accepted. Similarly, the finding that the
respondent no.1 is the owner of the offending vehicle and is liable to
pay appropriate amount of compensation will have to be accepted.
Respondent no.3 is the insurance company with which the offending
truck was insured. Respondent no.3 has not filed any appeal against
the award. Consequently, the liability of Respondent no.3 as an
insurance company cannot be disputed by the respondent no.3 before
the court. The respondent no.3 is also not challenging the finding
recorded by the Tribunal as regards entitlement of the appellant no.1
even after her marriage with one Mr. Sandip Raikar. Hence the
finding recorded by the said Tribunal on the question of liability of all
the respondents will have to be confirmed.
14. The learned advocate Mr.Krishnan appearing on behalf of
Respondent no.3 opposed the submissions advanced by learned
Advocate Mr. Kulkarni appearing on behalf of the appellants. He
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submitted that the learned Tribunal had correctly arrived at the
compensation amount after considering oral as well as documentary
evidence on record. He submitted that the appeal should be dismissed
as impugned award needs no interference.
15. On consideration of rival submissions following points arise for
our determination:
a) Whether the learned Tribunal correctly arrived at
amount of compensation?
b) If answer to point is in the negative what should be
the amount of compensation payable to the appellants?
For the following reasons, our finding on point no.1 is in the negative.
We have for the reasons stated hereafter arrived at the amount of
compensation payable to the appellants and we propose to apportion
the amount of compensation between the appellant considering their
ages and family needs. Consequently, point no.(b) is decided as per
operative part of this judgment.
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16. On perusal of the impugned award it is noticed that the learned
Tribunal has arrived at the annual salary of said Sandip as
Rs.3,15,252/-. The appellants have relied upon the salary certificate
at Exhibit 43 being certificate dated 14.11.2007. The said certificate
mentions the salary of said Sandip as of June 2007 and as of July
2007. The arguments advanced by learned Advocate Mr. Kulkarni
that since the incident had taken place on 5.7.2007, the salary of
Sandip as of July 2007 ought to have been considered by the Tribunal
is correct. Said Sandip was promoted w.e.f. July 2007 and
consequently there has been increase in his salary. Learned Advocate
Mr.Kulkarni had submitted statement as regards the monthly salary of
said Sandip on account of promotion, payment of income tax,
education tax, profession tax etc, The said statement was taken on
record. It is now well settled that from the annual salary received by
the deceased, amounts covered by income tax, education cess and
professional tax are required to be deducted. As per Exhibit 43 salary
of said Sandip from July 2007 before deduction of taxes was
Rs.41,610/-. Hence the annual salary of Sandip will turn out to be Rs.
pps 14/25
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4,99,320/- . From the record it is noticed that the income tax to the
tune of Rs.98,796/- has been paid. Education cess to the tune of
Rs.2964/- is paid and profession tax to the tune of Rs.2500/- is paid.
Deducting the aforesaid three amounts from the annual salary of
Sandip viz. Rs.4,99,320/- a figure of Rs.3,95,060/- is arrived at. This
will have to be taken as annual salary of said Sandip. The tribunal has
committed an error in not accepting the monthly salary of said Sandip
as per Rs.41,610/- ig Consequently, an error has occurred while
computing annual salary of said Sandip. To that extent the argument
advanced by learned Advocate Mr.Kulkarni will have to be accepted.
We, therefore, hold that annual salary of said Sandip will have to be
taken as Rs.3,95,060/-.
So far as the total number of dependents are concerned, said
17.
Sandip died leaving behind him appellant no.1-the widow, appellant
no.2-the daughter , his father Shashikant who was applicant no.3 and
appellant no.4 Mrs. Madhavi his mother. Hence total number of
dependents on said Sandip were four. The argument advanced by
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learned Advocate Mr. Kulkarni on the basis of judgment in the case of
Sarla Varma (Supra) it was necessary for the Tribunal to deduct 1/4 th of
the annual salary towards personal expenses of Sandip. The
deduction to the extent of 1/3rd by the Tribunal is not correct. Hence,
1/4th of the annual salary of said Sandip turns out to be Rs.98,765/-,
Deducting this amount from Rs.3,95,060/- multiplicand, namely
annual salary of Sandip turns out to be Rs.2,96,295/-.
18.
We hold that considering the age of said Sandip and applying the
judgment in case of Sarla Varma (Supra) the learned Tribunal has
rightly fixed the multiplier as 15. No interference is required in said
view of the tribunal.
19. Keeping in view the multiplicand, namely Rs.296295/- and the
multiplier as 15 the annual salary of Sandip turns out to be
Rs.44,44,425/-.
20. It was argued by learned Advocate Mr. Kulkarni that the
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Tribunal has not considered the rise in the future income. According
to learned Advocate Mr. Kulkarni, 50% of the total income arrived at
is to be added by way of rise in the income of the deceased. It was
submitted by learned Advocate Mr. Kulkarni that this is to be done in
view of judgment of Sarla Varma (supra). This submission of learned
Advocate for the appellants is correct and therefore a sum of
Rs.22,22,213/- is required to be added in the total income of said
Sandip by way of rise in the salary. Hence, the appellants would be
entitled to get Rs.66,66,638 as compensation on the basis of annual
earning of said Sandip.
21. The learned Tribunal has granted Rs.15,000/- by way of loss of
estate. A sum of Rs.10,000/- is granted by way of loss of consortium
and sum of Rs.7000/- is granted by way of funeral expenses. Grant of
these amounts in our view needs no interference. Considering the
aforesaid observations, the appellants would be entitled to receive
Rs.66,98,638/- by way of compensation on account of death of said
Sandip. The learned Tribunal has granted interest at the rate of 8%
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per annum on the total amount of compensation from the date of
application till realization. We see no reason to differ from this view.
Appropriate order would be passed in that behalf.
22. It is required to be mentioned that the aforesaid amount of
Rs.66,98,638/- will be inclusive of the amount covered by no fault
liability.
23. For the reasons mentioned aforesaid we are inclined to grant to
the appellants a sum of Rs.66,98,638/- as and by way of compensation
along with interest at the rate of 8% per annum on 66,98,638/- from
the date of filing of the application for compensation till realization.
24. The learned Tribunal has passed orders as regards apportionment
of the amount granted by it namely Rs.30 lakhs along with the interest.
The compensation is ordered to be paid/invested to appellant no.1
namely widow of said Sandip, Appellant no.2 namely daughter of said
Sandip and Appellant no.4 namely mother of said Sandip. We have
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considered the question of apportionment of the compensation
between the appellants. The present appellant no.3(b) and 3(c) are the
heirs of Shashikant father of said Sandip. No specific material is
placed before the court to show that they were dependent upon said
Sandip, as such we do not wish to award any amount to them by way
of compensation.
25. We have noted that the appellant no.2 Kum. Swarali, daughter of
said Sandip is presently of about 11 years. We hold that she would
require substantial amount for her education, marriage and for day to
day maintenance. It is possible that she would require substantial
amount for her education such as education in medical/ engineering
faculty. It is on this ground we are inclined to award 60% of the total
amount of compensation receivable as per this order to appellant no.2.
The said amount will have to be initially inivested in a nationalized
bank and quarterly interest accrued on the same can be paid over to
her. The record indicates that the said appellant no.2 is staying with
appellant no.1 despite her marriage with said Sandip Raikar. Hence,
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the amount of interest payable to appellant no.2 can be paid over to
appellant no.1 so that the said amount can be used by appellant no.1
for maintenance, education and other expenses of appellant no.2. We
anticipate that as the appellant no.2 would passout 12 th standard
examination, she may require some amount for higher education
expenses. In such a situation, liberty is granted to the appellant no.2,
if she is major, or to appellant no.1 if appellant no.2 is minor, to make
an application to the said tribunal for withdrawal of part amount by
redeeming the portion of the amount invested in fixed deposit.
26. It is true that we have noted that appellant no.1 has re-married.
However, undoubtedly, she is entitled for compensation on account of
death of said Sandip. Nothing has been pointed out to us in law
which would disable her to claim compensation only because she has
remarried during the proceedings before the Tribunal. The law
postulates grant of just compensation to the claimants. That she was
married to deceased Sandip and had given birth to a girl child is
undisputed. That she has lost the company of Sandip and will have to
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take care of the child even after remarriage ought to have therefore
weighed with the Tribunal while awarding compensation. We propose
to award 20% of the total amount of compensation receivable as per
this order to appellant no.1. We are of the view that the said amount of
compensation can be handed over to appellant no.1 in lumpsum, so
that the appellant no.1 would be able to invest the said amount as per
her choice and get maximum returns on it. This is so because the
appellant no.1 is an adult and is competent to attend to her financial
matters in the best possible manner.
27. So far as the grant of compensation in favour of appellant no.4,
it is noted that the appellant no.4 is presently aged about 72 years.
Hence, we propose to grant 20% of the total amount of compensation
receivable as per this order to appellant no.4. We intend to direct that
the amount payable to appellant no.4 be invested in a nationalized
bank and the interest payable should be on quarterly basis. If in future
the appellant no.4 requires some amount for her medical expenses, she
would be at liberty to withdraw an appropriate amount from the total
amount which she would receive by redeeming the fixed
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deposit/deposits.
28. We have considered the submission of learned Advocate Mr.
Kulkarni on the question of grant of costs. Learned Tribunal should
have granted costs to the appellants. Considering the question of
costs we are inclined to grant costs of Rs.30,000/- being costs towards
the application before Motor Accident Claim Tribunal and this court.
All the respondents are directed to jointly and severally pay the total
costs of Rs.30,000/-. These costs amount be paid over to appellant
no.1 as she must have taken lead to file application for compensation
as well as appeal.
29. For the reasons mentioned aforesaid the appeal is disposed of by
passing following order:
ORDER
i. The award dated 5.12.2011 passed by the learned Addl. Member,
Motor Accident Claim Tribunal, Pune in MACP No.1215 of 2007 is
partly modified, and in its place following award is passed.
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The application for compensation is granted and it is hereby ordered
that all the respondent jointly and severally do pay total compensation
of Rs.66,98,638/- ( Rupees Sixty-six Lakhs Ninety-eight Thousand Six
Hundred Thirty-eight Only) (inclusive of NFL amount) to the
appellant nos.1,2 and 4 alongwith interest on Rs.66,98,638/- at the rate
of 8% per annum from the date of application till the date of
realization of the same.
ii. The respondents are directed to deposit the amount of
compensation granted as per this order with the Motor Accident Claim
Tribunal at Pune.
iii. The Motor Accident Claim Tribunal, Pune shall pay to appellant
no.1, 20% of the amount of compensation granted as per this order
absolutely.
v. The Motor Accident Claim Tribunal, Pune shall invest 60% of
the amount of compensation granted as per this order in the name of
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the appellant no.2 by way of fixed deposit in a nationalized bank. The
interest payable should be quarterly.
vi. The amount of interest so accrued shall be paid to appellant no.1.
The appellant no.1 shall utilize the said amount for maintenance,
educational expenses and other expenses of appellant no.2. If in
future appellant no.2 requires a particular amount for spending it for
higher education, the appellant no.2 or the appellant no.1 in her
capacity as mother of appellant no.2 will apply to the Motor Accident
Claim Tribunal, Pune for withdrawal of a particular amount and said
application will be decided by Motor Accident Claim Tribunal, Pune
on its own merits. On appellant no.2 attaining the age of 21 years, the
amount standing to her credit alongwith the accrued interest, if any,
would be paid to her absolutely.
vii. The Motor Accident Claim Tribunal, Pune shall pay 20% of the
amount of compensation granted as per this order, to appellant no.4.
The said amount be invested in a nationalized bank. The interest
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payable should be quarterly. The said interest be paid over to appellant
no.4 for her maintenance etc. If appellant no.4 in future requires a
particular amount for medical expenses, she is free to make an
application to the Motor Accident Claim Tribunal, Pune for
withdrawal of a particular amount from the amount standing to her
credit in the fixed deposit along with accrued interest, if any. Said
application will be decided on merits.
viii. It is hereby ordered that all the respondents jointly and severally
do pay to Appellant no.1 Rs.30,000/- by way of costs towards
proceedings before Motor Accident Claim Tribunal, Pune and this
court.
xi. If any amount is already paid to any of the appellants, credit for
the same be given while making payment as per this order.
[R.Y.GANOO J.] [S.C.DHARMADHIKARI, J.]
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