Bombay High Court

Uma Navneet Vyas And 2 Ors vs Himmatshing Jeetsingh Ghotra And ... on 2 August, 2017

Bench: Dr. Shalini Phansalkar-Joshi

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                        FIRST APPEAL NO. 581 OF 2006


 1]       Smt. Uma W/o Navneet Vyas.
          Aged about 32 years, Occup-Nil.

 2]       Master Karan S/o. Navneet Vyas.
          Aged about 6 years. Occup-Student,
          Through his natural and legal 
          guardian being mother 
          Smt. Uma W/o. Navneet Vyas.

 3]       Balkrishna S/o. Ramlal Vyas.
          Aged about 60 years. Occup-Nil.
          All resident of Giripeth, Nagpur.                ....APPELLANTS

                  ...V E R S U S...

 1]       Himmatsingh S/o Jeetsingh Ghotre,
          Aged about Major, Occup-Business,
          R/o-Plot No.2, Baba Buddhaji Nagar,
          Nagpur.

 2]       National Insurance Co. Ltd.
          Through its Divisional Manager,
          Division Office No.2, Pal Complex,
          Ajani Square, Wardha Road, Nagpur      ....RESPONDENTS
 -------------------------------------------------------------------------------------------
          Mrs. R. S. Dewani, Advocate for Appellants.
          Shri D. N. Kukday, Advocate for Respondent No.2.
 -------------------------------------------------------------------------------------------

          CORAM:  DR.(SMT) SHALINI PHANSALKAR-JOSHI,J.

nd AUGUST, 2017.

          DATE:      2

 ORAL JUDGMENT


  1]              This   appeal   is   preferred   by   the   original   claimants,

being dissatisfied with the amount of compensation awarded by

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the Motor Accident Claims Tribunal, Nagpur, in Claim Petition

No.328/2001 vide its judgment and award dated 26.04.2006.

2] Brief facts of the appeal can be stated as follows :

Appellant No.1 is widow, appellant No.2 is minor son

and appellant No.3 is the father of deceased Navneet, who has

succumbed to death in a motor vehicle accident, which occurred

on 5th January, 2002 at Giripeth - Wardhaman Nagar Road,

Nagpur. While he was driving his motorcycle bearing No.MH-

31/X-9552 alongwith his cousin Gopika Shyamkumar Chhangani,

Truck bearing No. MH-31/A-361 came from behind in rash and

negligent manner and gave dash to the motorcycle of the

deceased. In that accident, deceased succumbed to the injuries.

The offence came to be registered against the Truck driver. The

offending Truck is owned by the respondent No.1 and insured

with respondent No.2.

3] As per the case of Appellant, deceased was working as

an Accountant in Hari Vishnu Packaging Limited at Nagpur and

drawing salary of Rs.10,000/- p.m.. On account of his death, they

have lost their source of income and also the support and love

and affection, hence, the appellants claimed compensation of

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Rs.15,56,070/- from the respondent Nos.1 and 2 jointly and

severally.

4] This petition came to be resisted by respondent No.2

alone as respondent No.1 failed to remain present, despite due

service of notice. The respondent No.2 admitted the insurance of

the Truck but denied the cause of accident as rash and negligent

driving of that Truck. It was also contended that the amount

claimed was exorbitant and excessive.

5] On these respective pleadings of the parties, the

Tribunal framed necessary issues at Exh.23. In support of their

case, the appellant No.3 examined himself and also led the

evidence of Director of Hari Vishnu Packaging Limited -

Brijkishor Ramlal Maniyar.

6] On appreciation of their evidence, the learned

Tribunal was pleased to hold that, as the appellants have failed to

produce on record the required documents, like salary slip,

muster roll, income tax return etc., the appellants have failed to

prove that deceased was earning the salary of Rs.10,000/- per

month. The learned Tribunal, therefore, held the income of the

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deceased as notional income of Rs.2,000/- per month and yearly

income of Rs.24,000/-. Accordingly calculated the total amount of

compensation as Rs.2,90,000/- inclusive of no fault liability

amount of Rs.50,000/-.

7] This judgment of Tribunal is the subject matter of this

appeal. According to the learned counsel for the appellants, the

Tribunal has committed an error in holding that the appellants

have failed to prove the income of the deceased. By placing

reliance on the judgment of various High Courts; it is submitted

that the evidence produced in the case is sufficient to prove the

income of the deceased, as in this proceeding strict rules of

evidence are not applicable and the Court should adopt liberal

approach having regard to beneficial object of the legislation.

It is submitted that, in the light of the oral evidence, coupled

with the appointment letter and salary certificate of the deceased,

the Tribunal should have accepted that evidence and awarded the

compensation accordingly. Further it is submitted that the

Tribunal has not awarded fair and just amount of compensation

on additional heads like loss of love and affection, loss of

consortium etc. According to learned counsel for the appellants,

therefore, the impugned judgment and award of the Tribunal

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needs to be modified by enhancing the amount of compensation,

as claimed by the appellants.

8] Per contra, learned counsel for the respondent No.2

has supported the judgment of the Tribunal by submitting that

not a single piece of evidence is brought on record to show that

deceased was actually working in the said Company and drawing

the salary of Rs.10,000/- per month. It is pointed out that neither

the muster roll is produced, nor the Salary Disbursement Officer

is examined, nor the salary slips are produced and thus, according

to the learned counsel for the respondent No.2, no fault can be

found in the impugned judgment of the Tribunal, if the Tribunal

has considered the notional income of the deceased as Rs.2,000/-

per month and awarded the amount of compensation accordingly.

9] At this stage, it may be stated that as the finding of

the Tribunal that cause of accident was the rash and negligent

driving of the Truck owned by the respondent No.1 and the said

Truck was insured with respondent No.2, is not challenged, it has

attained finality. Moreover that finding is also based on the

evidence on record and therefore, the only point which arises for

my determination in this appeal is, whether the amount of

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compensation as awarded by the Tribunal is just, adequate, fair or

it calls for any enhancement?

10] In this case, it is deposed by appellant No.3, the

father of the deceased that deceased was doing service with

M/s. Hari Vishnu Packaging Limited as Accountant, he used to

receive monthly salary of Rs.10,000/-. He has produced on record

the salary certificate and appointment letter of the deceased.

According to his evidence, deceased used to maintain their whole

house. Appellant No.1 - widow and appellant No.2 - minor son

were completely dependent on the income of deceased. He

himself and his wife were also dependent on the deceased.

However, in his cross-examination, he has admitted that he has

retired from Reserve Bank of India and getting gross pension of

Rs.8,000/-. He has also admitted that he was not dependent on

his son from financial point of view.

11] In his cross-examination, he has denied the

suggestion that deceased never served with M/s. Hari Vishnu

Packaging Limited and nor he has received any salary.



  12]             The appellants have then examined Brijkishor Ramlal





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Maniyar in whose Company deceased was serving as Account

Officer. According to his evidence, the basic pay of the deceased

was Rs.9,500/- per month and amount of Rs.500/- was given

towards his house rent allowance. Amount of Rs.175/- used to be

monthly deduction from his salary as per rules. He has proved on

record the appointment letter of the deceased dated 28 th March,

2000, according to which, deceased was directed to join his duty

by 1st April, 2000. It is pertinent to note that the appointment

letter (Exh.46) bears the signature of the deceased and therefore,

it cannot be said that the said letter was created subsequently as

evidence to prove that deceased was serving in this Company.

In the letter itself it is clearly mentioned that deceased was

engaged on the monthly salary of Rs.10,000/-. Even the salary

certificate of the deceased is also produced on record at Exh.45.

From both these documents, the fact that deceased was serving in

his Company is sufficiently proved on record by this witness

Brijkishor Ramlal Maniyar, who was Director or responsible

Officer of that Company.

13] It may be true that in his cross-examination, he has

admitted that he has not brought the muster roll to the Court,

however, his evidence shows that in the muster roll maintained

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by the Company, name of deceased used to be maintained.

Moreover, when the salary certificate is produced on record, in

my considered opinion, it is not necessary to examine the Salary

Disbursement Officer of the Company, who used to obtain the

signature of the deceased on the salary receipt or muster roll.

His evidence and two documents, like appointment letter of the

deceased and the salary certificate are, in my considered opinion

more than sufficient to prove that deceased was serving in the

said Company and earning salary of Rs.10,000/- per month.

There is absolutely nothing to disbelieve the evidence of this

witness and no rebutting or controverting the evidence is

produced on record. Admittedly deceased was Graduate and also

being married and having a son, therefore, it follows that he must

be doing some job and proof of that job and the income which he

was earning from the said job is also produced on record, by

examining the concerned person with whom the deceased was

serving.

14] The learned counsel for the appellants has, in these

circumstances, relied upon the judgment of the Hon'ble Supreme

Court in the case of Sanobanu Nazirbhai Mirza and Others ..vs..

Ahmedabad Municipal Transport Service, (2013) 16 Supreme Court

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Cases 719, to submit that when there is sufficient evidence on

record produced by the claimant about his income, without

assigning any reason for not accepting the said evidence on

record, tribunal and the High Court in that case, has committed

an error, by taking the notional income of the deceased for

assessment of compensation. Here in the case also, it has to be

held that in the face of evidence produced by the appellants, the

Tribunal should not have rejected the same and held his notional

income as Rs.2,000/- per month.

15] Learned counsel for the respondent No.2 has,

however, relied upon the judgment on Rajasthan High Court in

Sedu Ram ..vs.. Mali Ram, LEX (RAJ) 2011 187, wherein it was

held that, the concept of notional income has been invented to

meet out a few contingencies like where the income of the victim

is either unknown, or has not been proven, or from the facts it

emerges that the victim was unemployed, either because of his

age or otherwise. In order to meet out such situation, a legal

fiction has been created about the "deemed income" of the victim.

16] There can absolutely be no two opinions about the

legal proposition laid down in this authority. However, as held in

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the authority itself, notional income can be considered where the

income of the victim is unknown or has not been proved or on the

facts it emerges that he was unemployed. Here in the case on

facts, it is sufficiently proved on record that deceased was very

much employed, even his income is proved through the evidence

of witness Brijkishor Ramlal Maniyar. In such situation, there is

no scope at all for considering the income of the deceased as

notional income.

17] Learned counsel for respondent No.2 has then

submitted that in this case, the salary was, according to the

evidence of witness Brijkishor Ramlal Maniyar, paid in cash and

there was no proof of the payment of that salary, therefore, as

regards the income, there is no proof and therefore, the Tribunal

has rightly considered the notional income. However, in my

considered opinion, the evidence of this witness Brijkishor

Ramlal Maniyar cannot be disbelieved totally. Even assuming that

he has not been able to give bifurcation of the amount of salary

paid to the deceased or he has not been the eye witness to actual

payment of the salary to the deceased, the fact remains that

deceased was working with him and as per the appointment

letter, deceased was employed at the salary of Rs.10,000/- per

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month. The salary certificate to that effect is also produced on

record. In the absence of any controverting documentary

evidence, the oral evidence of this witness cannot be brushed

aside.

18] In this respect, learned counsel for the appellants has

rightly relied on the judgment on Calcutta High Court in the case

of Sedak Ali ..vs.. Divisional Manager, The Oriental Insurance

Company Ltd., 2011 SCC On Line Cal 1845, wherein it was held

that, "the position is now well settled that where there is even

slightest mention of income, the person cannot be classified in the

"no income group" or notional income". Here in the case, there is

not only slightest mention of the income of the deceased but

there is documentary evidence like appointment letter and the

salary certificate of the deceased, coupled with the oral evidence

of the person, who has engaged the deceased, to prove the

income of the deceased as Rs.10,000/- per month.

19] As rightly submitted by the learned counsel for

respondent No.2, considering the deduction towards the income

tax and other deductions, the net salary of the deceased can be

considered to Rs.8,500/- per month. From that income, 1/3rd

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needs to be deducted towards his personal expenses. Considering

his age appropriate multiplier is '16'. The appellants are also

entitled for the fair amount of compensation towards loss of love

and affection, loss of consortium and funeral expenses, as per the

recent trend reflected in the judgment of Rajesh and Others ..vs..

Rajbir Singh and Others, 2014(1) Mh. L. J. 79.

20] Thus, the total amount of compensation to which the

appellants become entitled can be reassessed as follows :

  Sr. No.                       HEADS                               CALCULATION
     (i)     Salary                                           Rs.8,500/- per month
     (ii)    1/3rd   of   the   same   to   be   deducted   as Rs.8,500  -  Rs.2833    =
             personal expenses of the deceased                 Rs.5,667/-

(iii) Compensation after multiplier of 16 is Rs.5,667 x 12 x 16 = applied Rs.10,88,064/-

(iv) Loss of consortium to appellant No.1 Rs.1,00,000/-

(v) Loss of love and affection to appellant Rs.50,000/-

No.2

(vi) Loss of love and affection to appellant Rs.25,000/-

No.3

(vii) Funeral expenses + medical expenses as Rs.20,000/-

awarded by the Tribunal TOTAL COMPENSATION AWARDED Rs.12,83,064/-

21] The total amount of compensation to which the

appellants thus become entitled comes to Rs.12,83,064/-.

The impugned judgment and award of the Tribunal, therefore,

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