Bombay High Court
The New India Assurance Co.Ltd vs Mrs. Vidya Girish Mudabidri & Ors on 30 June, 2016
Bench: Mridula Bhatkar
fa-1960-2009.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1960 OF 2009
Vidya Girish Mudabidri and Another ... Appellants
vs.
The New India Assurance Company
Limited and Another ... Respondents
WITH
FIRST APPEAL NO.304 OF 2001
The New India Assurance Company
Limited and Another ig ... Appellants
vs.
Vidya Girish Mudabidri and Another ... Respondents
Mr. M.G. Barve, for the Appellants in F.A. No. 1960 of 2009 and
for Respondent Nos. 1 and 2 in F.A. No. 304 of 2001.
Mr. S.S. Jinsiwale, for Appellants in F.A. No. 304 of 2001 and for
Respondent No. 1 in F.A. No. 1960 of 2009.
Mr. Ketan Chothani i/b. Mr. Avinash Gokhale, an Amicus Curiae.
CORAM : MRIDULA BHATKAR, J.
JUDGMENT RESERVED ON : 11th May, 2016
JUDGMENT PRONOUNCED ON : 30th June, 2016
JUDGMENT:
. These two Appeals are directed against the judgment and
award dated 5th December, 2000 passed by the Chairman, M.A.C.T.,
Mumbai thereby directing the opponents to pay Rs. 12,93,644/-
Vishal
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jointly and severely with interest @ 12% p.a. from the date of lodging
the application. i.e. 28th April, 1994.
2. The claimants i.e. wife and daughter of the deceased have
filed application in the year 1994 under Section 166 of the Motor
Vehicles Act praying for an award of Rs. 20 lacs. So also the Insurance
Company with whom the motor-vehicle i.e. Tata Truck bearing No.
GJ-01-U-5501 was insured filed the Appeal challenging the said
judgment.
3. One Girish Tukaram Mudabidri, the husband of applicant
No. 1 and father of applicant No. 2 met with an on 8 th November,
1993 at about 4.15 p.m at the opposite Krishna Enterprise, Western
Express Highway, Jogeshwari(E), Mumbai. He was proceeding on his
motor-cycle towards Goregaon. At that time, the offending vehicle
tried to overtake the motor-cycle to take 'U' turn. The driver of the
offending vehicle was rash and negligent and did not give signal. The
deceased who was driving motor-cycle dashed the motor-vehicle truck
on the rear side and Girish died on the spot due to head injury.
Therefore, the claim was filed. After receipt of notice, the Respondent-
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owner of truck neither appeared nor filed written statement.
However, the opponent No. 2 after taking permission of the Court,
filed written statement and defended the claim. The applicants
examined in all four witnesses and tendered the documentary
evidence including spot panchanama, first information report from
the police record. The Tribunal, after considering the oral as well as
documentary evidence, partly allowed the application and passed an
award as mentioned above.
4. Being aggrieved by the said judgment and award, the
applicants as well as the Insurance Company both filed these two
Appeals.
5. The point of determination are as follows:
a) Whether the Tribunal has erred in holding the driver of the offending
vehicle alone negligent ?
b) Whether the amount awarded is just and adequate ?
c) What Order ?
6. In these two Appeals the main two points are required to
be discussed i.e. (i) Point of negligence and (ii) Point of quantum.
Point of Negligence :
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7. The learned counsel Mr. Barve for the claimants-
Appellants has submitted that the deceased was not negligent. He
also relied on the evidence of Mr. Toshniwal who was examined by
the claimants. He submitted that Mr. Toshniwal has stated that the
driver of the truck did not give signal to the motor-cycle and the
vehicles following the truck and due to his negligent act, the deceased
dashed on the rear side of the truck. He submits that when the issue
of negligence is raised and it is completely based on facts who was
driving the vehicle and how the vehicle was driven on the relevant
time, is a material fact to assess and determine the negligence on the
part of the offending vehicle. The spot panchanama and the evidence
of the witness if available is to be properly scrutinized and
understood by the Judge. A Judge has to construct and imagine the
actual occurrence of the accident. It should not be imaginary but it
should be based on imagination which is based on documentary as
well as oral evidence which is tendered before the Court by applying
the practical experience of road traffic. The accident can be picturised
notionally and the either negligence and contributory negligence can
be fixed by the Court. If 2-3 vehicles are involved in the accident,
then the Court also has to apply the theory of last opportunity to
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avoid the accident. While applying this theory, a question to be put to
oneself is whether there was any chance to have last opportunity to
avoid the accident and if there was any hindrance to use it or the
driver was negligent or careless to exploit that opportunity. While
applying the theory of last opportunity to avoid the accident, the
Court has to put this question to itself and find out the answer. It
cannot be applied routinely. This theory is a good instrument to find
out that who first should be held responsible and to what extent.
8. The learned counsel Mr. Jinsiwale for the Insurance
Company has submitted that in this case, the motor-cycle dashed the
truck from the rear side. It shows that the driver of the insured truck
was not negligent. The deceased was on the motor-cycle. He should
have control over the vehicle which he was driven. However, the
motor-cycle was driven in rash and negligent manner by the
deceased. Therefore, he lost control and dashed on the truck on the
rear side and died on the spot. He argued that the learned Chairman,
Tribunal in his judgment in para 13 has specifically observed that
"Had the deceased been careful while riding the motor-cycle on a busy
road, certainly the accident could have been avoided." He submitted
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that the evidence of Mr. Satish Toshniwal cannot be believed though
he claims to be an eye witness. His evidence recorded in the Court on
22nd November, 1999 and the contents in his statement were recorded
on 8th November, 1993 are inconsistent. He submitted that the
witness was sitting in his factory. There was the distance between
highway and the factory. Therefore, how the witness could see that
the driver of the offending vehicle did not give signal and took turn.
However, the witness has stated that the motor-cycle itself banged on
the truck on the rear side. He further argued that assuming that even
if the truck driver was negligent, yet it was the responsibility of the
driver coming from the rear side to keep safe distance to avoid the
rear side impact. So also the person who comes from behind has a
last opportunity to avoid the accident. In this case, the motor-cyclist
had last opportunity to avoid the accident, however, he could not.
Hence, he was negligent and rash in driving his motor-cycle. In
support of his submission, he relied on the case Andhra Pradesh
Road Transport Corporation and Another vs. Hemlata, (2008) 6
SCC 667.
9. In the present case, there is evidence of the eye witness
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who deposed that a truck driver who took sudden turn and that is
why the motor-cyclist coming from rear side dashed on the rear side
portion of the truck. It is to be noted that the Insurance Company
should have examine the driver of the truck who was the best witness
on the point of negligence and so also on the point of contributory
negligence. However, this witness is not examined by the Insurance
Company. Therefore, this submission cannot be appreciated. Under
such circumstances, I hold a view that this is not a case of
contributory negligence but the negligence on the part of the driver of
the truck of offending vehicle-Respondent.
Point of quantum :
10. In both the respective Appeals, the Appellants have
challenged the amount of compensation awarded by the learned
Chairman of the Tribunal. The learned counsel Mr. Barve for the
Appellants has submitted that the amount of compensation is
inadequate and the learned Chairman of the Tribunal has committed
error in not taking into account the various factors while fixing the
compensation.
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11. He submitted that the deceased was B.Com. In the year
1992, he was working with one Nukem Remedies Limited as 'Area
Manager'. He was getting basic salary of Rs. 3,500/- p.m. +
allowances. Apart from the service, he was a partner to the extent of
12.5% share of the profit in one "Multi Span Instrument Company".
He was also getting 5% commission on sale in one company by name
'Servotonic Company'. He submitted that his average income for 12
months was Rs. 67,000/- to 79,000/- and considering the annual
benefits including medical, LTA and bonus, his annual income was
Rs. 75,304/-. Apart from this, in order to prove commission, the
statement of the year 1992-93 is produced at Exhibit 23. In that year
the deceased earn the commission was Rs. 67,140/- There are pass
book entries to show that he has received such commission which is
produced at Exhibit 20. Therefore, the average annual income
towards commission is to be considered as Rs. 20,380/-. The balance
sheet of three years i.e. 1990 to 1994 for partnership firm is also
produced at Exhibit 25. The average income for last 3 years profit
share of partnership firm was Rs. 45,206/-. Thus, average annual
income from the above three sources is to be considered as Rs.
40,890/-.
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12. He further submitted that in order to prove the income,
the complainant have examined many witnesses viz. Dr. Sambhaji
Kulkarni, Dr. Bhaskar Patel who is one of the partner of partnership
firm Multi Span Instrument Company. The deed of partnership firm is
also proved at Exhibit 24 where the name of the deceased was
mentioned as partner. So also produced the credit notes certificate,
balance sheets. One Mr. Ramesh Kaushik was examined on the point
of income, passbook, income tax return. He further submitted that the
learned Chairman did not properly consider the loss of earnings, loss
of estate i.e. P.F and gratuity and loss of consortium. The amount
granted under various heads are too meagre. He submitted that the
deceased was very promising person. He submitted that the future
prospect are not considered at all. He would got promotion and
would have taken to high position in service. As at the time of death,
he was 36 years old, the multiplier '16' is appropriate. He submitted
that the loss of income comes to Rs. 47,44,666/-, loss of estate comes
Rs. 5,00,000/-, loss of consortium and love Rs. 1,00,000/- and
funeral expenses Rs. 10,000/- and it comes to Rs. 53,56,666/-. In
support of his submission he relied on various case laws. He
submitted that though the claim was of Rs. 22 lacs, the Chairman of
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Tribunal can grant the compensation more than claimed, if he finds
that it is not just and adequate. In support of his submission, he relied
on Ravindra Dashrath More vs. Rangrao Vitoba Pawar and Others,
2015 ACJ-2403. On the point of quantum, he relied on Santosh Devi
vs. National Insurance Co. Limited and Others, 2012 ACJ-1428.
On the point of future prospect, he relied on Rajesh and Others vs.
Rajbir Singh and Others, (2013) ACJ-1403. He also relied on Sarla
Verma and Others vs. Delhi Transport Corporation and Another,
2009, ACJ-1298. He further relied on Vimal Kanwar and Others vs.
Kishore Dan and Others, 2013 ACJ-1441 and on the point of future
income he placed reliance on Rameshwari and Others vs. Suresh
Yadav and Others, 2016 ACJ-352.
13. Mr. Jinsiwale, the learned counsel for the Insurance
Company while assailing the submissions has argued that the amount
which is claimed in the Appeal is excessive and cannot be granted. He
also relied on the case of Sarla Verma (supra). He relied on the
statement of the witnesses mainly of Sambhaji Kulkarni who has
produced the salary certificate. At the time of recording of evidence
i.e. in the year 2000, Mr. Sambhaji was not working in the said
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company but he was the Director of the company in 1988. The
witness was not his boss but one Mahadev Deshpande was the boss
and he had given admission that he had no personal knowledge about
the salary of the deceased. He has signed one salary slip. However, he
was not working at the time of giving evidence. So this witness should
not be believed because of lack of personal knowledge. He further
stated that the claimants cannot claim any share in the partnership
firm. One Mr. Bhaskar Patel is examined. He has deposed that the
deceased was one of the partners of the firm. However, he gave
admission. He submitted that profit claimed by this witness was Rs.
11 lacs in the year 1999-2000. However, it is baseless and not
supported by any document. So there is no question of giving
commission as claimed and the profit share in the company. Hence, it
is to be rejected. On the point of future prospect he relied on Reshma
Kumari & Ors vs Madan Mohan & Anr, in Civil Appeal No. 4646 of
2009, Dt. 2 nd April, 2013.
He submitted that the judgment is also of
three judges Bench judgment wherein there is no reference of the
ratio of Rajesh vs. Rajbir (supra). However, the reference is given in
the case of Reshma Kumari (supra) first in time and therefore,
Rajesh vs. Rajbir's (supra) case is to be treated as per in curiam. He
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further submitted that both the cases i.e. Rajesh and Reshma are
referred to the larger Bench in the case of Naional Insurance Co.
Ltd. vs. Pushpa and Others, Special Leave Appeal No. 8058 of
2014 passed on 2 nd July, 2014
by the Division Bench of two judges
Bench. He submitted that the issue of future prospect and of
additional income is referred to the larger Bench and is pending
before the Hon'ble Supreme Court.
14.
More emphasis is given by the learned counsel Mr.
Jinsiwale on the theory that who had last opportunity to avoid the
accident. In the case of Hemlata (supra), the deceased along with
claimants were on the motor bike. They were proceeding ahead and
the offending bus dashed the motor-cycle from the rear side. The
defence was taken by the Insurance Company was, seeing a speeding
bus, the deceased himself get puzzled and skidded off the road. The
Hon'ble Supreme Court held that the bus driver had the last
opportunity to avoid the accident who was coming behind. So it was a
case of contributory negligence. The Hon'ble Suprme Court on the
point of theory of last opportunity to avoid the accident, has observed
as follows:
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Para-11: "To determine the question as to who contributed
to the happening of the accident, it becomes relevant to
ascertain who was driving his vehicle negligently and
rashly and in case both were so doing who was more
responsible for the accident and who of the two had the
last opportunity to avoid the accident. In case of damages
are to be apportioned, it must also be found that the
plaintiff's fault was one of the causes of the damage and
once that condition is fulfilled the damages have to be
apportioned according to the apportioned share of the
responsibility. If the negligence on the plaintiff's part has
also contributed to damage this cannot be ignored in
assessing the damages. He can be found guilty of
contributory negligence if he ought to have foreseen that if
he did not act as a reasonable, reasoned man, he might
himself be hit and he must take into account the
possibility of others being careless."
15. The above aspect can be answered only after considering
the evidence in each case. In the present case, after going through the
panchanama and especially the evidence of witness Toshniwal, it is
clear that the accident took place because the offending driver took a
sudden turn without giving signal. The motor-cyclist who was behind
the truck therefore banged on the rear side of the truck. Mr.
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Toshniwal was sitting in his factory and was looking at the highway.
The distance between the factory and highway was 35 fts. A person
having normal sight can notice a clear view of the incident which took
place 35-50 fts. away from him. Nothing is brought on record to show
that Mr. Toshniwal did not have a clear view of the accident because
of some obstacles. Under such circumstances, I do not find any reason
to discard the evidence of Mr. Toshniwal. On the contrary, he is a
good witness who actually saw the incident and stated that the driver
of the offending truck hurriedly without giving signal took 'U' turn. As
per traffic rules, if a driver of the vehicle wants to turn his vehicle
then, it is obligatory on his part to give signal. The following vehicle is
required to keep safe distance. Similarly, the person who wants to
take turn should give signal some time before he wants to take turn.
He cannot just give signal and immediately take turn. A signal is a
notice given to the drivers of the other vehicles coming from behind
and also front side vehicles as to what action the driver is going to
take. The said notice should be given before sufficient time so that the
other driver after taking notice of it, can decide his next move i.e. he
may apply breaks, he may take turn, he may go away and he may
slow down his vehicle. The Indian vehicles are manually operated, so
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there should be sufficient time to notice to avoid accident. When turn
is taken then, the speed of that vehicle will naturally slow down and
the rear side vehicle is always maintain a speed and without noticing
the turn with sufficient time, it is not possible for the driver in the
vehicle behind to control the speed of his vehicle. He is bound to bang
on the rear side portion of the vehicle.
16. Before appreciating the evidence and the submissions of
the learned counsel, it is useful to reproduce the manner on which the
trial Court has awarded the damages to the Appellants:
Damages awarded to the Appellants :
1 Salary from Nukem Remedies 51,525/-
2 Average of the commission amount for 20,380/-
the year 1990-91, 1991-92, 1992-93
from Sarvotronics Company
3 Average of the share in the profit for 48,671/-
1991-92, 1992-93 from M/s. Multispan
Instruments Company
: 1,20,576/-
- 1/3 on account of personal expenses 40,192/-
2/3rd amount of Rs. 1,20,576/- 80,384/-
Multiplier applicable 16/-
12,86,144/-
+ consortium 5,000/-
+ Funeral expenses 2,500/-
TOTAL: 12,93,644/-
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17. I have considered the evidence of witnesses on the point
income from salaried person. The witness Sambhaji Kulkarni was
working in 'Nukem Remedies' as a Director since 1988. However, when
his evidence was recorded in the year 2000 at that time, he was not
working in the company as he had left the said company in 1996.
However, the deceased joined the company on 23 rd June, 1992 and he
died on 8th November, 1993 i.e. one and half year after he joined the
company. So witness Sambhaji Kulkarni knew the deceased for a
period of one and half year. He has produced the employment
certificate (Exhibit 15) and also salary certificate(Exhibit 16 colly.)
and (Exhibit 17 colly.). He has issued confirmation letter on 19 th
March, 1993. The deceased was working as a 'Area Manager'.
18. The learned trial Judge has considered the salary slip
(Exhibit 16 and 17) and pay scale of the deceased. The amount of Rs.
2,675/- is shown as basic pay. The deceased was getting L.T.A.,
conveyance allowance and yearly bonus as Rs. 2,675/- under each
head per year. He was also awarded Rs. 2,800/- by way of incentives
for his excellent performance.
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19. However, the income from commission as Rs. 20,380/- is
correct. As per the submission, the income from the partnership firm
is considered very less as he was having partnership with the firm
with 12.5% p.a in the profit. So the Appellant has claimed income of
Rs. 1 lac but the Tribunal has granted Rs. 48,671/-.
20. The deceased was having share in the business of "Multi
Span Instrument Company". The witness PW. 4 has deposed that the
deceased was working as a partner in the said company. He had
produced the audited accounts for the Assessment year 1990-91,
1991-92 and 1992-93. The Tribunal has rightly considered the
average of the 3 years and it has rightly marshalled the evidence
appropriately. He has also discussed the audited account at Exhibit 25
where share to various partners is given. Thus considering the above,
I confirm the view taken by the Tribunal that the income from the
partnership that 12.5% share in the profit is rightly considered as Rs.
48,671/-. Thus, there is rise in the income earned out of salary. The
income from commission is Rs. 20,380/- and share in profit of the
partnership is Rs. 48,671/-.
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21. In the case of Rajesh vs. Rajbir (supra), while deciding
just compensation, three judges Bench held that the formula for
increase of income for future prospect to apply to the person who was
employed and also held that for the persons below 40 years of age
50% of the actual income after deduction, for 40-50 years of age 30%
and for 50-60 years of age 15% and wherein consortium was given
Rs. 1 lac and funeral expenses as Rs. 25,000/-. Therefore, the
consortium granted Rs. 50,000/- by the Tribunal which is to be
increased upto Rs. 1 lac. The lost of estate was granted Nil which can
be considered Rs. 1 lac and funeral expenses was given very less of
Rs. 2,500/- which should be Rs. 25,000/-.
22. On the disputed point of amount awarded towards future
prospect was vigorously argued by both the parties. I have gone
through the relevant judgments cited above viz. Sarla Verma, Rajesh
vs. Rajbir, Reshma Kumari and National Insurance Co. (supra). In
the case of Sarla Verma (supra) in para 24 the Hon'ble Supreme
Court has taken a view that when there is salaried person without
provision of annual increment then it is said that his income would
remain the same and the income at the time of his death is to be
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considered. However, when the person is salaried and there is a
provision of annual increment and if the deceased was below 40 years
of age then there is increase in his income by 50% and the increase by
50% was considered as a 'Rule of Thumb'.
23. In the present case the deceased was salaried person and
he was drawing additional income by way of commission and also he
was working as a partner in a partnership firm and his share in profit
is 12.5 % p.a. The witness Sambhaji Kulkarni has deposed in his
evidence that the company has lost a person having leadership
qualities. He was sincere and he has good promotional chances and
also mentioned that his salary would have been Rs. 3,00,000/- p.a.
Though the salary of Rs. 3 lacs is definitely on very high side it also
appears to be exaggerated. However, undoubtedly the deceased was
industrious person and was trying from various sources to earn more
money for his family. This very special evidence is produced on record
by the Appellants. The documentary evidence showing the income
from commission and income from profit of the company is also given
weightage to assess the capacity of the deceased to earn.
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24. In the case of Santosh Devi (supra) a view is taken that
self-employed person or fixed salaried person has also to be given
increase in his income as the income would not remain same
throughout the life of the deceased. The same view is adopted in the
case of Rajesh vs. Rajbir (supra). A view was taken in the judgment
delivered by the three judges Bench on 2 nd April, 2013 in the case of
Reshma Kumari (supra) that where the person is self employed and
even if at all his wages are fixed, a rise upto 50% is to be given. The
Hon'ble Supreme Court has held 10 days prior to the judgment of
Rajesh vs. Rajbir where a view was taken that the deceased is a fixed
salaried person without provision of annual increment then the actual
income at the time of death without any increase or addition will be
appropriate. Deviation to this is permissible if at all extra ordinary
circumstances in exceptional cases are brought on record. However, in
the case of Reshma Kumari 50% addition of actual salary towards
future prospect if the person is below 40 years was approved. It is
held at para 39 that:
Para 39: "The standardization of addition to income for
future prospects shall help in achieving certainty in arriving at
appropriate compensation. We approve the method that an
addition of 50% of actual salary be made to the actual salary
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income of the deceased had a permanent job and was below
40 years and the addition should be only 30% if the age of the
deceased was 40 to 50 years and no addition should be made
where the age of the deceased is more than 50 years. Where
the annual income is in the taxable range, the actual salary
shall mean actual salary less tax. In the cases where the
deceased was self-employed or was on a fixed salary without
provision for annual increments, the actual income at the
time of death without any addition to income for future
prospects will be appropriate. A departure from the above
principle can only be justified in extraordinary circumstances
and very exceptional cases."
25. However, in the case of National Insurance Co. (supra)
two judges Bench has referred the issue of future prospect is to be
calculated in respect of different employments in authoritative
pronouncement. However, in the said case the person was not
salaried but engaged in business. Thus, in the present case, the
deceased was salaried as well as he was in the business being working
as commission agent and also having share in the company. Thus,
considering this factual position, there should be clear 50% rise in the
salary towards future prospect as concurrent ratio is laid down in
Reshma Kumari regarding the person having salaried income with
provision of increment. So the future prospect income should be 50%
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of his actual income because when he died his age was 36 years of
age. As I have observed, he was also involved in other business
activities to earn money and was taking additional efforts to earn
more money for the family. Therefore, according to me, it is a special
circumstance as the documents are produced to that effect. The
evidence of the Director of the company is also brought on record
who has complemented the deceased for his leadership qualities.
Therefore, some rise in the future prospect in his other income i.e.
income from commission and profit is required. It is possible that the
company may prosper or may face financial crises. Considering this, I
am off the view that 10-15% rise in the additional income in future
prospect will be appropriate.
26. Taking into account all these factors, the rise in compensation is
made as follows:
Income from Salary
Basic Pay 2,675/-
+ Conveyance Allowance 250/-
+ HRA 500/-
Salary per month 3,425/-
Yearly Salary (3425 x 12) 41,100/-
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In addition to his annual salary,
yearly deceased used to get
Bonus 2675
Medical exp. 2675
Leave Travel allowance 2675 8025/-
However, learned Judge while 49,125/-
calculating has considered total (Rounded
yearly amount at Rs.51,000/- Rs.50,000)
Multiplier 16 (50,000X16) 8,00,000
Deceased was partner in one
Multi Span Instrument Co.,
therefore his annual income by
way of profit is considered as
Rs.48,671/- (Rounded to Rs.
49000)
Multiplier 16 (49000X16) 7,84,000
Deceased was also working as
commission agent with
Servotronics. The said amount
was considered by the trial Judge
as Rs.20,380/- (Rounded to
Rs.20,500)
Multiplier 16 (20500 X16) 328000
Amount from salary, profit and 1912000
commission
Less : 1/3rd towards personal 637333
expenses
TOTAL INCOME 1274667
+ Consortium 1,00,000/-
+ Funeral expenses 25,000/- 1,25,000
1399667
(Rounded
14,00,000)
For Future Prospects - salary of
Rs.8,00,000/- is taken 50% 4,00,000
18,00,000
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On Commission 21,000 X10% 2100
On Profit 49,000 X10% 4900
Multiplier 16 (7000 X 16) 1,12,000
TOTAL 19,12,000
The rate of interest applicable is 12% from the date of filing of the
application.
27. Thus, First Appeal No. 1960 of 2009 filed by the
appellants/original claimants is partly allowed and First Appeal No.
304 of 2001 filed by the Insurance company is dismissed.
(MRIDULA BHATKAR, J.)
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