Bombay High Court
All Residents Of At Post Lanja vs Occupation Business Resident Of on 24 October, 2013
Bench: A.P. Bhangale
Tilak 1/17 FA-535-13(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.535 of 2013
1 Smt Darshana Ganesh Kanavaje
Age 29 Yrs, Occupation Household
2 Miss Sayali Ganesh Kanavaje
Age 12 Years Occupation Education
3 Miss Vaishnavi Ganesh Kanavaje,
Age 9 years, Occupation Education
4 Miss Gayatri Ganesh Kanavaje
Age Age 6 Months
5 Shri Manohar Ramchandra Kanavaje
Age 53 Years Occupation Nil
6 Sou Nirmala Manohar Kanavaje
Age 58 years Occupation Nil
All Residents of At Post Lanja , Kanavaje
wadi Tal.Lanja, Dist.Ratnagiri, ... Appellants
Versus
1 Maharashtra State Road Transport
Corporation, Ballard Estate,
Mumbai Central, Mumbai(Owner
and insurer of offending S.T.Bus.)
2 Shri Maruti Subhanrao Nikam
Occupation Driver
Resident of Nikam Wadi, Tal. Wai
District Satara
::: Downloaded on - 27/11/2013 20:29:23 :::
Tilak 2/17 FA-535-13(J)
3 Shri Sandeep Yashwant Pawaskar
Occupation business Resident of
Rohidaswadi, Pawas,
Taluka and District Ratnagiri. ... Respondents
...
Mr.Rajesh S. Patil, Advocate for the appellants.
Mr.G.S.Hegde with Mr.C.M.Lokesh, Advocate for the
respondent nos.1 and 2.
ig CORAM : A.P. BHANGALE,J
ORDER RESERVED ON : OCTOBER 22, 2013
ORDER PRONOUNCED ON: OCTOBER 24, 2013
JUDGEMENT :-
1 Heard submissions at the Bar. The appeal is preferred
against the Judgment and Award dated 6 th May 2010 passed by
Learned Chairman, Motor accident Claim Tribunal, Ratnagiri in
MACP No.43 of 2008 whereby the Tribunal was pleased to award
compensation in the sum of Rs 8,80,000/- only inclusive of no fault
liability. The facts are :-
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2 On 09-04-2008, Ganesh Manohar Kanavaje Aged 35
years was proceeding to his home at Lanja by Santro Car
registration no. MH-08-C-6832, travelling with his friends. Shri
Vijay Chavan was driving the car. S.T Bus bearing registration no.
MH-12-CH-8684 came from the opposite direction while driven
rashly, and negligently and dashed the said car. Ganesh died on
the spot as result of the fatal accident. Tribunal held that accident
happened as a result of sole negligence of the Driver of the
offending S. T. Bus which had entered from the wrong side and
gave dash to the car. Plea of contributory negligence raised on
behalf of the MSRTC was found unacceptable and was rejected by
the Tribunal.
3 Ganesh was running a Grocery shop at Lanja and was a
regular Income Tax payer. His income was gradually increasing as
deposed by Ramakant Pathare, Tax consultant for the deceased
victim Ganesh. Income Tax returns for previous four years 2004-05
to 2007-08 were produced indicating annual income of the victim
as Rs.82,884/-, Rs.86,360, Rs.98,750/- and Rs.1,12,926/-
respectively. Average annual income of the victim Ganesh, thus was
calculable at Rs 90,000/- per year.
Tilak 4/17 FA-535-13(J)
4 I have considered the rival submissions at the bar in the
light of rulings cited before me in Sarla Verma & Ors. V/s Delhi
Transport Corporation & Anr. Reported in AIR 2009 Supreme
Court 3104 as also ruling relied upon in Santosh Devi V/s
National Insurance Company Limited and Others, reported in
(2012) 6 Supreme Court Cases 421. The ruling in Rajesh and
others V/s Rajbir Singh and others, by three Judges' Bench of the
Apex Court, reported in 2013 ACJ 1403 , New India Assurance
Co. Ltd Vs. Gopali & others reported in ( 2012) 12 SCC 198.
5 The Apex Court in Gopali's case considering the facts
and circumstances of that case observed regarding deduction made
towards personal expenditure as under:-
"Here, we are dealing with a case in which the
deceased had 8 dependents including four sons and one daughter.
The question which arises for our consideration is whether in 1992
a person having an income of less than Rs.3,000/- and a family of 9
could think of spending 1/3rd of his income on himself. On a
conservative estimate, it is possible to say, he would have spent at
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least 50% of the income on the purchase of foodgrains, milk, etc.,
and for payment of water, electricity and other bills. 25% of the
income would have been spent on the education of children which
would have included school/college fee, cost of books, etc. 15% of
the income would have been used for meeting other family
necessities, like, clothes, medical expenses, etc. He would have
then been left with 10% of his income, a portion of which could be
used to meet unforeseen contingencies and on the occasion of
festivals. In this scenario, any deduction towards personal expenses
would be unrealistic. In any case, where the family of the deceased
comprised of 5 persons or more having an income of Rs.3,000/- to
Rs.5,000/-, it is virtually impossible for him to spend more than
1/10th of the total income upon himself. What we have observed
hereinabove may not apply to rich people living in urban areas who
can afford to spend a substantial amount of their income in clubs,
hotels and on drinks parties. In those cases, there may be a
semblance of justification in applying the rule of 1/3rd deduction
but it would be wholly unrealistic to universally apply that rule in
all cases."
Tilak 6/17 FA-535-13(J)
6 The observations to uphold 10% deduction towards
personal expenditure were clearly in the peculiar facts and
circumstances of the case as the deceased Nanag Ram in that case
was machine operator earning Rs 4000/- per month and only bread
earner who left behind large number of poor family members
consisting of his aged parents, wife and five children who were
dependents upon the deceased. The Apex court had granted
enhanced rate of interest of 12 % p.a. on the enhanced
compensation awarded. Learned advocate for the appellant also
placed reliance upon the ruling in Amrit Bhanushali & others Vs
National Insurance Co Ltd. & others reported in 2012 (6) JT 301 to
argue that the parents of the deceased were granted sum of Rs
1,00,000/- for loss of love and affection of their Son.
7 Parents in that case were found dependent hence
compensation was granted under the head of loss of love and
affection as well.
8 Observations would support the contention for the
submission advanced by learned Advocate for the appellants for
enhancement of the compensation awarded in the present case.
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Perusal of the above rulings make it clear that there are no fetters
on the power of the Tribunal to award just compensation even if it
is in excess of the amount which is claimed in the claim application
if enhancement is warranted by the proved facts and circumstances
of the case. The object of awarding compensation is to restore the
dependents-claimants to the pre-accidental position, as far as
possible by compensating the victim's family in monetary terms for
loss of their only bread earner family member. It is duty of the
Tribunal or the Court to award just, equitable, fair and reasonable
compensation irrespective of the amount claimed in the claim
application. In such cases Tribunal need to bear in mind the social
welfare objective of the Motor Vehicles Act to adequately
compensate the victims of the motor vehicle accidents or their
family members who are rendered helpless, aggrieved and
disadvantaged by untimely accidental demise of earning member of
their family i.e. the victim. In such cases dependents are often left
behind to face impoverishment due to sudden impecunious
circumstances after having lost their sole bread earner in the family.
Dependants need to satisfy basic wants of their life i.e. food,
clothing, Education of Children in the poor family, medicine, shelter.
It is indisputable that increasing inflation or rising prices make it
Tilak 8/17 FA-535-13(J)
increasingly difficult for them to survive and obtain fulfillment of
even basic necessities in life -subsistence- for their livelihood. And
therefore increasing trends in personal incomes ought to be borne
in mind by the Tribunals and Courts so as to add just and
reasonable amounts for to adequately compensate dependents for
loss of future prospects as well. Minor Children in the family have
lost father's invaluable guidance for their better educational career.
It is necessary to award compensation for damage done on this
count. It is also essential to award non-pecuniary damages such as
for loss of love and affection for family members, loss of consortium
for widow or widower if dependent, loss of guidance, loss of estate
etc which are special damages in fact uncompensatable in monetary
terms, of course the caution is that the award ought not be a
jackpot for the claimants to unreasonably and quickly enrich them.
It is not object of law to make them wealthier at the cost of public
money held by the insurance companies. The intent of awarding
non-pecuniary damages is to provide just, fair, reasonably adequate
compensation so as to provide a sufficient corpus to take care of the
subsistence of the dependents in future as well, hence such sums
are also required to be added to the compensation amount properly
and relevantly calculated with reference to facts of each case
Tilak 9/17 FA-535-13(J)
ascertaining the multiplicand on the basis of monthly /yearly
income proved by the claimants before the Tribunal so as to arrive
at just and reasonable compensation irrespective of any amount
claimed by the claimants. In the case of Rajesh and others (cited
supra) Hon'ble the Supreme Court has held that in a given case
when the deceased was self-employed or working on fixed wages,
and if the deceased was below 40 years, there shall be addition of
50 percent of income of the deceased towards future prospects. This
addition shall be 30% in case the deceased was aged between 40 to
50 years. In paragraph 12 of the judgment Hon'ble Supreme Court
has held, it would be just and equitable to provide an addition of 15
per cent in the case wherein the victim is between the age group of
50 and 60 years so as to make the compensation just, equitable, fair
and reasonable. There shall normally be no addition thereafter.
Thus in the case of Rajesh and others three judges bench of the
Hon'ble Supreme Court has held that, the benefit of increase of
income for future prospects is available not only to the victims
where the deceased was in secured employment, but also to the
victims where the deceased was self- employed or employed on
fixed wages. The Hon'ble Supreme Court has further extended this
benefit even to the cases where deceased persons in the age group
Tilak 10/17 FA-535-13(J)
of 50 to 60 years. The addition of sums by way of future prospects
without there being discrimination between dependents of deceased
persons who were in secured employment and dependents of
deceased persons who were self-employed or working on fixed
wages would render the compensation award just, equitable, fair
and reasonable.
9 Considering the submissions at the bar and the rulings
cited and cognizant of the facts and circumstances of the present
case, I think the calculations as suggested by learned Advocate for
the appellant need to be partly accepted as just and reasonable
suggestion for to provide adequate compensation on account of
death of Ganesh aged 35 years in the motor vehicle accident
payable to his dependents in the present case. In view of the
guidelines in Sarla Verma's case , basically only three facts need to
be established by the claimants for assessing compensation in the
case of death : (a) age of the deceased; (b) income of the deceased;
and the (c) the number of dependents. The issues to be determined
by the Tribunal to arrive at the loss of dependency are (i)
additions/deductions to be made for arriving at the income; (ii) the
deduction to be made towards the personal living expenses of the
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deceased; and (iii) the multiplier to be applied with reference of the
age of the deceased. Tribunals should determine compensation in
cases of death, by the following well settled steps, viz. Step 1
(Ascertaining the multiplicand); Step 2 (Ascertaining the multiplier)
and Step 3 (Actual calculation). Where the deceased was self-
employed or was on a fixed salary (without provision for annual
increments etc.), the courts will usually take only the actual income
at the time of death. A departure therefrom should be made only in
rare and exceptional cases involving special circumstances.
Honourable Supreme Court, at paragraph-42 observed as follows :-
"42. We therefore hold that the multiplier to be used
should be as mentioned in Column (4) of the table above
(prepared by applying Susamma Thomas : (1994) 2
SCC 176, Trilok Chandra : (1996) 4 SCC 362 and
Charlie : (2005) 10 SCC 720), which starts with an
operative multiplier of 18 (for the age groups of 15 to 20
and 21 to 25 years), reduced by one unit for every five
years, that is M-17 for 26 to 30 years, M-16 for 31 to 35
years, M-15 for 36 to 40 years, M-14 for 41 to 45 years,
and M-13 for 46 to 50 years, then reduced by two units
for every five years, that is, M-11 for 51 to 55 years, M-9
for 56 to 60 years, M-7 for 61 to 65 years and M-5 for
66 to 70 years."
Tilak 12/17 FA-535-13(J)
10 Bearing in mind guidelines set by the Apex Court as
above and after considering possibilities of dependents continuing
the same business of the victim Ganesh as well as imponderables i.
e. early demise of victim's parents etc, in the facts and
circumstances of the case I think, the calculation of compensation
as herein below would be just, equitable, reasonable and proper :-
victim Ganesh was aged 35 years and self employed businessman
by occupation Seller in Grocery articles from his own shop, with
average annual income of Rs 90,000/- based on evidence of his
Income Tax returns for four years previous to his death. He was
survived by six family members his widow Darshana(29 yrs),
Daughters Sayali(12yrs), Vaishnavi (09 yrs), Gayatri (6 months)
and Parents Manohar (63 yrs.) and Sau Nirmala (58 yrs).
11 In my opinion it is unrealistic to urge for more
deduction towards personal expenses on the pretext that the
dependants of the deceased may be able to earn on their own by
starting the grocery shop or otherwise. It must be borne in mind
the possibility that there may be likely addition of income amount
Tilak 13/17 FA-535-13(J)
by way of future prospects and converse probability of business of
the grocery articles to be continued by or on behalf of the
dependants, though no such evidence is brought on the record, the
reasonable and just compensation must be computed in the case in
hand. Annual average income of the deceased Ganesh must be
arrived at after deduction of 1/4th amount of personal expenses. In
paragraph-30 of the Sarla Verma's case, the Supreme Court
observed as follows :-
"30. Though in some cases the deduction to be made
towards personal and living expenses is calculated
on the basis of units indicated in Trilok Chandra :
(1996) 4 SCC 362, the general practice is to
apply standardized deductions. Having considered
several subsequent decisions of this Court, we are of
the view that where the deceased was married, the
deduction towards personal and living expenses of the
deceased, should be one- third (1/3rd) where
the number of dependent family members is 2 to
3, one- fourth (1/4th) where the number of
dependent family members is 4 to 6, and one- fifth
(1/5th) where the number of dependent family
members exceeds six. "
Tilak 14/17 FA-535-13(J)
12 Thus ¼ th personal expenditure of Rs 22,500/- is to be
deducted ( considering six members in his family at the time of his
death) from his average yearly earning of Rs 90, 000/-. Per annum
(Vide Ex.31 to 33 as deposed by AW-3 Ramakant Pathare, tax
consultant.) when the deceased was self-employed the court will
usually take only the annual average income at the time of death of
victim. Total annual loss of dependency is Rs 90,000/- minus Rs
22,500/- = Rs 67,500/- Since deceased was self employed, further
deduction from this amount merely on the pretext that dependants
of the deceased may be able to pursue business of selling grocery
articles would be rather harsh upon the dependents considering
their basic needs in these days of rising prices and the nature of
family consisting of minor daughters and aged parents particularly
in the absence of any concrete evidence to indicate that they would
be able to set up same business as was carried on by the deceased
Ganesh. Hence, I am considering the proved sum of Rs 67,500/-
per annum as the sum inclusive of future prospects of increase in
incomes to be calculated as basis of annual loss of dependency for
family members of the victim Ganesh. Annual income for
dependents is calculated in the sum of (67,500 x 16) Rs. 67,500/-
Tilak 15/17 FA-535-13(J)
per annum multiplied by "16" as proper multiplier applicable
considering the age 35 years of the victim, compensation amount
comes to Rs.10,80,000/-. (Capitalised loss of dependency for
claimants-dependents). In addition, sum of Rs 100,000/- must be
added as loss of consortium for widow of the deceased and
Rs.100,000/- ought to be reasonably granted by way of
compensation towards loss of love and affection for the family
members of the victim and sum of Rs. 100,000/- for loss or
deprivation of father's guidance for future and better educational
career for minor Children and the sum of Rs 10000/- spent
towards funeral expenses and transport expenses . We can thus
arrive at just, fair and reasonable compensation in the sum of Rs.
13,90,000/- inclusive of no fault liability, with reasonable interest
@7.50 % p.a. on the unpaid amount from the date of the claim
application till the amount is deposited by the MSRTC /owner of
the offending vehicle. The balance of remaining amount unpaid
would carry reasonable interest at the rate of Rs. 7.50 % per annum
till full realization thereof. Before parting with the order it is
desirable to mention that the portion of the capitalized
compensation ought to be invested in such manner in the valuable
security such as fixed deposit in any nationalised Bank so as to fetch
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regular recurrent income for the subsistence of the aged and poor,
needy claimants in the case to meet any exigency in the family, if
occurs. Compensation amount need to be enhanced and granted
accordingly by modifying the impugned award. Hence, following
order is passed :-
O R D E R
1) Appeal is partly allowed as under:
2) Award is modified while allowing and including enhancement
of the compensation as follows:-
(a) Widow, Parents and dependent unmarried daughters of the
victim are together entitled to compensation in the total sum of
Rs.13,90,000/- inclusive of no fault liability along with interest at
the rate of Rs. 7.50 % per annum from the date of application till
deposit thereof in the Tribunal / Court or realization thereof and
unpaid balance amount due shall carry the interest payable @
7.50% p.a. till realization of the full compensation.
(b) Record and Proceedings be sent back to Motor Accident Claims
Tribunal, Ratnagiri along with the amount deposited in this Court if
any to enable the Tribunal for determined disbursal of the
compensation as ordered herein with latitude to issue directions for
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investment as to fixed deposit etc of the portion of the
compensation amount as it may deem fit, to ensure timely and
recurrent future assistance, to provide continued periodical
subsistence for the poor, needy claimants- dependents, if necessary
by enabling them individually to withdraw the interest accrued
periodically or lump sum amounts when needed to meet exigencies
in the family. The amounts deposited in this Court with interest
accrued shall be sent back to the Tribunal for to enable it to do the
needful for proper and effective execution of the Award. The
appeal is allowed with costs accordingly.
(A.P. BHANGALE, J)
