Smt. Vimabai Bhayyalalsing ... vs Anil Dadarao Waghmare
2017 Latest Caselaw 6375 Bom

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


                                      FIRST APPEAL No.608 OF 2005


        1.  Smt. Vimlabai Bhayyalalsing Rajput (Bhandari)
             Aged about 49 years, Occupation : Household,

        2.  Anandsing s/o Bhayyalalsing Rajput (Bhandari)
             Aged 19 years, Occ. : Education

        3.  Lakhansing s/o Bhayyalalsing Rajput (Bhandari)
             Aged 16 years, Occ.: Education

        4.  Smt. Sunderbai Latpatsing Rajput (Bhandari)
             Age 79 years, Occ.: Nil..................(Deleted as per Court 
                                                       Order dated 7.5.2014)
         
             Sr.No. 2 & 3 are minors by guardian 
             as their natural mother applicant no.1 
             All R/o Sakharkherda, Tq. Sindkhed Raja, 
             Distt. Buldana.                                    :      APPELLANTS

                           ...VERSUS...

        1.    Anil Dadarao Waghmare
               Aged Major, Occ.: Owner of 
               Taxi No. MH-23/C-321,
               R/o Old Bhaji Mandi, 
               At Post Beed, Distt. Beed.

        2.    The Oriental Insurance Co. Ltd.,
               Through its Divisional Manager
               Divisional Office, Payat Haveli, 
               Akola.

        3.    Divisional Controller (Gevrai Depot)
               Maharashtra State Road Transport 
               Corporation, At Tq. Gevrai
               Distt. Beed.                                                          :      RESPONDENTS




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        Shri R. L. Khapre, Advocate for the Appellants.
        None for Respondent no.1
        Shri D. N. Kukday, Advocate for the Respondent No.2.
        Shri A. S. Mehadia, Advocate for Respondent 3.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 18 AUGUST, 2017.

ORAL JUDGMENT :

1. This appeal is preferred against the Award dated 6.7.2005

rendered by the Chairman, Motor Accident Claims Tribunal, Buldana in

Motor Accident Claims Petition No. 84/2001 on the ground that the

compensation awarded is inadequate and not just.

2. The appellant nos. 1 to 3 are respectively the widow and the

sons of the deceased Bhayyalalsing Rajput. Appellant no.4, mother of the

deceased, expired during the pendency of this appeal and, therefore, her

name was deleted from the array of respondents. Respondent no.1 is the

owner of the taxi involved in the accident and respondent no.2 is the

insurer of the taxi. Respondent no.3 is the owner of S.T. Bus, another

vehicle involved in the accident.

3. In the present case, the accident took place in between 5.00

a.m. and 6.00 a.m. on 12.2.2001 on Beed - Gevarai Road, near Ranjani

Shivar within the limits of Gevrai Police Station, District Beed. At that

time deceased Bhayyalalsing was travelling by a taxi bearing registration

J-fa608-05.odt 3/14

no. MH-23/C-321, the owner of which was respondent no. 1. This taxi,

as claimed by the appellant was being driven rashly and negligently, as a

result of which it gave dash to a stationary S.T. Bus belonging to

respondent no.3 bearing registration no. MH-20/D-3474. In this accident,

deceased Bhayyalalsing and four others, who were also occupants of the

taxi sustained grievous injuries and succumbed to those injuries on the

spot. The petitioners claiming compensation for the loss of deceased

Bhayyalalsing, who were dependent upon him, filed claim petition under

Section 166 of the Motor Vehicles Act. It was resisted by respondent nos.

1 and 2, who filed their separate written statements. Though the

occurrence of the accident was admitted by them, they denied that the

driver of the taxi was responsible for causing of the accident. The

respondent no.2 also took an objection that the offending taxi was

transporting more passengers than it was permitted to do and thus, there

was breach of the terms and conditions of the insurance policy.

4. Respondent no.3 also resisted the claim and submitted that it

was only driver of the offending taxi who was responsible for the

accident.

5. On merits of the case, the Tribunal found that the entire fault

for the accident was of the driver of the taxi and, therefore, the Tribunal

held taxi owner and the insurer respondent nos. 1 and 2 liable to pay the

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compensation, while the Tribunal exonerated respondent no.3 from its

liability to pay the compensation. The Tribunal rejected the defence of

respondent no.2 regarding breach of policy conditions. Considering

income and other relevant factors, the Tribunal awarded compensation

of Rs.2,50,000/- including no fault liability amount, to the appellants

which was recoverable jointly and severally from respondent nos. 1 and 2

with interest @ 6% per annum from the date of application till

realization of the amount of the award. While the respondent nos. 1 and

2 accepted the award, the appellants considered such compensation

granted by the Tribunal as inadequate and unjust and, therefore, they

are before this Court in the present appeal.

6. I have heard Shri R.L. Khapre, learned counsel for the

appellants, Shri D.N. Kukday, learned counsel for respondent no.2 and

Shri A.S. Mehadia, learned counsel for Respondent 3. Nobody appears on

behalf of respondent no.1 though duly served on merits. I have gone

through the record of the case. Now, the only point which arises for my

determination is:

Whether the compensation granted by the Reference Court is just and proper?

7. Learned counsel for the appellants has submitted that the

Tribunal has not properly considered the annual income in particular and

the Tribunal did not consider the future prospects although the deceased

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was a salaried person working as Talathi. He further submits that the

multiplier is also not properly applied which should have been "14" and

that the deduction on account of personal expenses ought to have been

considered at 1/4th of total earning instead of 1/3 rd of the earnings. He

also submits that compensation on such heads as loss of consortium and

loss of love and affection has not been credited and that the

compensation granted on account of funeral expenses is quite less. He

has submitted a chart giving the details of the calculations in order to

arrive at the figure of just and fair compensation in the present case. He

places his reliance upon the cases of Sarla Verma (Smt) and others Vs.

Delhi Transport Corporation and another reported in (2009) 6

Supreme Court Cases 121 and Rajesh and Ors. V. Rajbir Singh & rs.,

(2013) 9 SCC 54.

8. Shri D.N. Kukday, learned counsel for respondent no.2

submits that no reliance can be placed upon the salary certificate as the

author of the salary certificate was never examined by the claimants. He

also submits that as the author of the salary certificate was not examined,

respondent no.2 has been deprived of its opportunity to cross-examine

the employer on various heads mentioned in the salary certificate at

Exh.44 and also to test the veracity of the evidence of the person who

issued the salary certificate. He submits that it is well settled law that

when the income is sought to be proved through a salary certificate, the

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concerned official who issued the salary certificate and who possessed

the relevant information regarding payment of salary, must be examined

as witness before the Court and if such person is not produced as witness

before the Court, the salary certificate cannot be admitted in evidence.

He also submits that in the instant case there is no evidence brought on

record by the claimants that deceased Bhayyalalsing had better prospects

in the form of annual increments, pay revision etc. In such circumstances,

it would have to be taken that deceased Bhayyalalsing was a person who

received fixed income and, therefore, did not have any future prospects.

He further submits that the issue as to whether or not future prospects

should be considered for grant of compensation in a case where the

deceased is a self-employed person or fetching a fixed income is involved

a group of matters which is pending before larger bench of the Hon'ble

Apex Court and, therefore, till the issue in question is adjudicated upon

by Hon'ble Apex Court, the compensation that has to be paid to the

appellants would be without any advantage of future prospects added

into the income of the deceased. He places reliance upon Shashikala &

Ors Vs. Gangalakshmamma & Anr., II (2015) ACC 76 (SC) , for his

such submission.

9. On going through the evidence of PW-1 Smt Vimalbai, the

appellant no.1, I find that she has categorically deposed before the Court

that her husband was Talathi and was drawing salary of Rs.8,000/-. She

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has also stated that her husband was the only earning hand of family.

This evidence of one of the claimants, if one takes a look at her cross-

examination taken on behalf of respondent no.2, would be found to have

gone virtually unchallenged. The cross-examination shows that only

question that was put to her in order to pose any challenge to her claim

on income of the deceased was not about his monthly salary earned from

the job of Talathi but on earning by the deceased an additional income of

Rs.3,00,000/- per annum from the agriculture. The salary certificate

(Exh.44) has been exhibited through the evidence of PW-1 Vimal and

when it was so exhibited, no objection was raised by any of the

respondents including respondent no.2-Insurance Company towards

exhibiting this document.

10. It is true that mere exhibiting of a document cannot take the

place of proof of a document. But, when the document is exhibited and

admitted in evidence, its proof and reliability would depend on the kind

of objection taken and the stage at which it is taken. In the cases of

R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.

Temple and another, (2003) 8 Supreme Court Cases 752 and Smt.

Dayamathi Bai Vs. K.M.Shaffi, AIR 2004 Supreme Court 4082, the

Hon'ble Apex Court held that when the objection is that document itself

is inadmissible in evidence, as for example, an unregistered sale-deed of

valuable land or unattested Will, it does not matter that objection is not

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taken when the document is exhibited and admitted in evidence and in

such a case mere exhibiting of the document would not be a proof of

such document, but this will not be so when the objection is directed

towards mode of proof alleging it to be irregular or insufficient. In the

latter case, the objection must be taken when the evidence is tendered

and once the document is admitted in evidence and marked as an

exhibit, the objection that it should not have been admitted in evidence

and marked as an exhibit, cannot be allowed to be raised at any stage

subsequent to the marking of the document as an exhibit. (See also :

Hemendra Rasiklal Ghia Vs. Subodh Mody, 2008(6) Mh.L.J. 886).

Here is the document, a salary certificate vide Exhibit-44, in respect of

which the objection is not that basically it is inadmissible in evidence, but

is about its mode of proof. It is nobody's case that this document does not

bear signature of the authorised representative of the employer or that it

is not issued by the employer and is issued by some person other than an

authorized representative of the employer. The objection is that the

signatory to the document was not examined. Such an objection is about

irregular mode of tendering proof of the document and, therefore, the

objection ought to have been taken at the time when this document was

admitted in evidence, but it was not taken. It is also significant to note

here that the cross-examination taken on behalf of respondent no. 2 of

P.W.1 shows that even contents of this document were never disputed

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nor any suggestion was given to P.W.1 that it was a forged document.

The cross-examination further shows that no suggestion whatsoever

about the salary of the deceased being fixed salary having no future

prospects attached to it, was also given. Absence of any such objection

and the requisite suggestions would only show that respondent no.2 gave

up its right to raise objection to the salary certificate; dispute its contents

and also prove the fact that the salary earned by the deceased carried

with it no future prospects regarding its hike. So, I am of the view that

raising of all these objections as regards salary certificate (Exh.44) at this

appeal stage, is of no avail to respondent no.2 nor is it permissible in law.

Therefore, the salary certificate (Exh.44) can safely be read in evidence

for what it discloses.

11. There is an additional reason for placing reliance upon this

salary certificate vide Exh.44. Undoubtedly, it is issued by employer of

the deceased and has been procured by his widow P.W.1 Vimlabai. She

being the widow of the deceased, must be considered to be having

personal knowledge as to the monthly income of her husband when he

was alive, for usually, the wives who are dependent upon the income of

the deceased husbands, are personally shared with information of the

income by the deceased husbands, just to make their spouses aware of

the limits within which they have to manage the affairs of the family. For

this reason also, I am of the opinion that this salary certificate (Exh.44)

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can be read in evidence and inferred on appropriately. The argument of

learned counsel for respondent made in this regard is, therefore, rejected.

12. Now, the salary certificate at Exh.44 discloses that gross

salary of the deceased was Rs.8,169/- and that total statutory deductions

from his salary were of Rs.205/-. The salary certificate is silent about

payment of income tax by the deceased. However, it can be considered to

be at the rate as is applicable under the provisions of the Income Tax Act.

After deduction of the amount of Rs.205/-, the monthly salary of

deceased comes to Rs. 7964/-.

13. Now, the question is whether any further amount on account

of future prospects should be added to this income or not. If one goes by

the case of Sarla Verma (supra), the benefit of future prospects is to be

added considering the age of the deceased which was of 45 years and it

would be at the rate of 30% of the monthly income. Learned counsel for

the respondent no.2 has a serious objection to making of such addition.

He submits that there is absolutely no evidence brought on record by the

claimants to prove their contentions that deceased was doing such a job

as had better future prospects and therefore, no such addition can be

made. He further submits that deceased would have to be taken as a

person receiving the fixed income and then the ratio of Shashikala and

others (supra) would apply. Shri Khapre, learned counsel for the

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appellants submits that exclusion of future prospects from the monthly

income of the deceased can be done only when the deceased has been

shown to be a person falling in the category of self-employed person or a

fixed income group person and in the present case deceased did not fall

in any of those categories. He also submits that in any case making of

reference of the issue to the Larger Bench as has been done in the case of

Shashikala and others (supra), could not be considered to be ratio

decidendi and, therefore, this Court would be obliged to apply the law

which has been crystallized by the case of Rajesh Vs. Rajbir Singh

(supra).

14. I think, Shri Khapre, learned counsel is right. The salary

certificate by its very nature shows that the deceased could not be treated

as a person on fixed and unchangeable salary. It is not in dispute that

deceased, a Talathi, was a government employee and drawing salary

from the government. His salary Certificate (Exhibit 44) shows

bifurcation of his gross salary. Basic pay, dearness allowance, house rent

allowance, stationary allowance and conveyance allowance payable to

the deceased are disclosed therein separately. If some employee is

engaged on a fixed salary, such bifurcation of basic pay and allowances

would not be there and the salary would be paid to such an employee in

lump sum which is inclusive of allowances, if any. Such allowances as

dearness allowance and house rent allowances are variable and judicial

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note of the fact that with present day inflationary trends, these

allowances will only go upwards, can be taken. The post of Talathi is a

regular post created under the provisions of Section 7 of the Maharashtra

Land Revenue Code and, therefore, is a post held under the government

and it goes without saying that such a post would attract a pay which is

subject to higher pay revisions from time to time just as any other post in

the government and thus had future prospects. The ratio of Shashikala

(supra), therefore, in my humble view, would not be applicable to the

facts of the case. Rather, the compensation would have to be determined

by taking into consideration, the future prospects as per the ratio laid

down in the case of Sarla Verma (supra).

15. Deceased was in the age group of 41-50 years and,

therefore, 30% of his annual income would have been added in order to

determine his total income. There were four dependents upon him and so

1/4th of the annual income would have been deducted on account of his

personal expenses. To this amount, such further amounts as of

Rs.1,00,000/- on account of loss of consortium for the appellant no.1 of

Rs.2,00,000/- for loss of love and affection for appellant nos. 2 and 3 as

also an amount of 25,000/- on account of funeral expenses would have

to be added. The proper multiplier in the instant case would be of "14".

The details of the calculations going into the determination of

compensation fairly and justly made are given as below:

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Monthly salary (with statutory deductions):

Rs.8,169/- - Rs.205/- = Rs,7,964/-

Future prospects:- 30% of annual salary

(Rs.7,964/- x 30)/100 : Rs.2,389.2

Annual Salary (After adding future prospects) :-

Rs.10,353 x 12 = Rs.1,24,236/-

Personal deduction (four dependents) :- 1/4th

Rs. 1,24,236/- / 4 = Rs.31,059/-

Total annual dependency:-

Rs.1,24,236/- - Rs,31,059/- = Rs.93,177/-

Multiplier adopted as per age of deceased (45) yrs): 14

Rs.93,177/- x 14 = Rs.13,04,478/-

Thus total loss of dependency : Rs.13,04,478/-

Loss of Consortium :- Rs.1,00,000/-

Loss of love and affection to minor children (2) :

Rs.1,00,000/- x 2 = Rs.2,00,000/-

Funeral expenses : Rs.25,000/-

Thus total compensation payable:

Rs.13,04,478/- + Rs.3,25,000/- = Rs.16,29,478/-

Add interest at the rate of 7% p.a. simple from 9.4.2001 till

realization.

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The amount so arrived at shall be payable to appellants after

deduction at source of income tax at the rate of applicable.

16. So the total compensation fairly and justly payable to the

appellants would be of Rs.16,29,478/- with interest @ 7% p.a. from

9.4.2001 till realization and shall be paid to them, jointly and severally,

by respondent nos. 1 and 2, after deduction of income tax at source made

and remitted to the Income Tax department as per the applicable rates.

17. The appeal is, thus, partly allowed by modifying the

impugned award in the above terms.

18. The enhanced amount of compensation granted by this order

shall be paid by respondent nos. 1 and 2 jointly and severally within two

months from the date of payment of the deficit court fees by the

appellants/claimants. The appellants shall pay additional Court fees on

the enhanced compensation within one month from the date of this

order. No order as to costs.

JUDGE

rgingole/joshi