Bombay High Court
Sk. Nasruddin S/O Gulzar And 6 Ors vs M/S Logistic Projects India Ltd. ... on 21 August, 2017
Bench: I.K. Jain
FA 153.10.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.153 OF 2010
1] Sk. Nasruddin s/o Gulzar,
Aged 65 years.
2] Halimabi w/o Sk. Nasruddin,
Aged 57 years.
3] Shahin Sheikh wd/o Sk. Ashiq,
Aged 35 years.
4] Rukhsar d/o Sk. Ashiq,
Aged 17 years, Student.
5] Ghulam s/o Sk. Ashiq,
Aged 14 years, Student.
6] Arbaz s/o Sk. Ashiq,
Aged 11 years, Student.
7] Muskan d/o Sk. Ashiq,
Aged 10 years, Student.
Appellant Nos.4 to 7 being Minors,
through M/G Appellant No.3. .. APPELLANTS
.. VERSUS ..
1] M/s. Logistic Projects India Limited,
Room No.5, Seva Sadan No.2,
Kandala, Kutch, Gujrat.
2] Oriental Insurance Company Limited,
Fort, Mumbai, through The Oriental
Insurance Company, Plot No.8,
Above Bank of India, Hindustan Colony,
Wardha Road, Nagpur. .. RESPONDENTS
..........
Shri Asghar Hussain, Advocate for Appellants,
Ms. Anita Mategaonkar, Advocate for Respondent No.2,
None for respondent no.1 though duly served.
..........
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FA 153.10.odt 2
CORAM : KUM. INDIRA JAIN, J.
DATED : AUGUST 21, 2017.
ORAL JUDGMENT
This appeal questions the legality, correctness and
propriety of the award dated 17.4.2009 passed by the Motor
Accident Claims Tribunal, Nagpur in Claim Petition
No.3038/2004.
2] The facts giving rise to the present appeal may be
stated in nutshell as under :
(i) Appellants are the claimants. Appellant
no.1-father, appellant no.2-mother. Appellant no.3-widow,
appellant nos.4 and 7-daughters and appellant nos.5 and 6
sons of Sheikh Ashiq, who died in a vehicular accident
involving truck bearing no. GJ-12-W-7206, filed an
application under Section 166 of the Motor Vehicles Act,
1988 for grant of compensation.
(ii) According to appellants, on 11.7.2004,
Sheikh Ashiq with Deorao was proceeding on Luna bearing
no.MH-31-AW-9200. Sheikh Ashiq was driving Luna and
Deorao was pillion rider. At about 10.00 pm, when they
reached near Sangharsha Nagar, Ring Road Chowk, Nagpur,
above said truck came in a high speed and gave a dash to
Luna from the back side due to which Sheikh Ashiq and
Deorao came under the rear wheel of the truck and died on
the spot. It is submitted that driver of the truck was driving
the vehicle in a rash and negligent manner.
(iii) It is the case of claimants that Sheikh
Ashiq was a driver in a travel agency and earning Rs.4,000/-
per month. He was aged about 32 years. He was paid daily
bhatta of Rs.150/-. Claimants were dependents on him and
the entire salary of Sheikh Ashiq was spent on the
claimants. They assessed total compensation to
Rs.8,41,000/- but restricted the same to Rs.7,00,000/-.
(iv) Another contention of the claimants was
that the offending truck was owned by respondent no.1 and
insured with respondent no.2 at the time of accident and,
therefore, they are jointly and severally liable for payment of
compensation.
3] The owner of vehicle remained absent and so
petition proceeded ex-parte against him.
4] Respondent no.2-Insurance Company resisted the
claim by filing written statement (Exh.19). The factum of
insurance of the vehicle with the insurer is not in dispute.
Respondent no.2 had not seriously disputed occurrence of
accident. According to the insurer, at the time of accident,
Sheikh Ashiq and Deorao were chitchatting and they were
also responsible for causing accident. The submission is
that accident was the result of contributory negligence on
the part of Luna driver and the truck driver. Regarding
income, age and dependency, defence of insurance
company is of total denial.
5] On the basis of the rival pleadings, tribunal framed
issues at Exh.22. Claimants examined AW-1 Sheikh
Nasruddin s/o Gulzar and AW-2 Mohd. Kayub s/o Wali Mohd.
Sk. in support of their claim. Respondent/insurer did not
lead the oral evidence. Considering the oral and
documentary evidence adduced by the parties, tribunal
came to the conclusion that accident was the result of rash
and negligent driving of truck by its driver and applicants
are entitled to Rs.3,29,500/- towards compensation with
interest at the rate of 7.5% per annum from the date of
application i.e. 9.9.2004 till its realization. Being dissatisfied
with the quantum of compensation awarded by the tribunal,
claimants have preferred this appeal.
6] Heard Shri Asghar Hussain, learned counsel for
appellants and Ms. Anita Mategaonkar, learned counsel for
respondent No.2. None appeared for respondent no.1
though duly served.
7] On going through the record, pleadings of the
parties, reasons recorded by the tribunal and the impugned
judgment and award, following points arise for
determination in the present appeal :
(i) Whether appellants prove that
compensation awarded by the tribunal
is inadequate and not just and fair
compensation.?
(ii) Whether accident was the result of
contributory negligence as stated by the
insurer.?
(iii) Whether interference is warranted in the
judgment and award passed by the
tribunal.?
8] Needless to state that basically three factors are to
be established by the claimants for assessing compensation
in case of death viz. (i) age of deceased, (ii) income of
deceased and (iii) number of dependents. The issue
regarding loss of dependency is further required to be
determined on the basis of (i) additions/deductions to be
made for arriving at the income, (ii) deductions to be made
towards the personal living expenses of the deceased and
(iii) multiplier to be applied with reference to age of the
deceased.
9] So far as occurrence of accident is concerned, it
can be seen from the evidence of AW-1 Sk. Nasruddin,
father of deceased, that on 11.7.2004, his son Sheikh Ashiq
was proceeding on Luna with Deorao and at about 10.00 pm
near Sangharsha Nagar, Ring Road Chowk, Nagpur, Truck
bearing No.GJ-12-W-7206 came in a rash and negligent
manner in a high speed and gave a dash to the Luna driver
Sheikh Ashiq. He stated that both fell down and died on the
spot. Admittedly, AW-1 Sk. Nasruddin is not an eyewitness
to the accident. His evidence is substantiated by police
papers. Copy of first information report, spot panchanama
(crime details form), inquest panchanama, postmortem
report and form AA clearly indicate that accident occurred
due to rash and negligent driving of the truck by its driver.
Respondent no.2-insurer has not seriously disputed the
police papers and also the occurrence of accident. In this
premise, finding recorded by the tribunal that accident
occurred due to rash and negligent driving of truck is in
consonance with the evidence and material placed on
record.
10] So far as plea of contributory negligence raised by
the insurer is concerned, it is evident from the police papers
that crime is registered only against the truck driver. From
the spot panchanama, it can be seen that the truck driver
was solely responsible for causing the accident. Respondent
no.2-insurer did not examine the driver of truck to prove
that Luna driver contributed to the accident. In the absence
of any evidence to the contrary, police papers would prevail
and on the basis of police papers, defence of respondent
no.2-insurer regarding contributory negligence has to be
negatived.
11] The next question relates to quantum and the
extent of liability of the respondents to pay compensation.
AW-1 Sk. Nasruddin stated in the evidence that his son
Sheikh Ashiq was a heavy vehicle driver and was employed
in a transport company Tajdar Goods Garage. He stated that
Sheikh Ashiq was required to go on long distance tour. He
was getting Rs.4,000/- per month and daily bhatta of
Rs.150/- per day. Salary certificate (Article-A) was produced
by the witness in support of his evidence.
12] The claimants examined AW-2 Mohd. Kayyub to
prove the salary certificate of the deceased. AW-2 was
running transport business and his father was owner of
Tajdar Goods Garage. It is stated by AW-2 that Sheikh Ashiq
was driver working with them on truck No.CG-04-ZC-3886
and his salary was Rs.4,000/- per month. According to AW-
2, in addition to salary, Sheikh Ashiq was paid bhatta of
Rs.150/- per day for duty outside Nagpur. Relying upon
evidence of AW-1 and AW-2, learned counsel for appellants
submitted that monthly income of the deceased considered
by the tribunal as Rs.2,500/- is on too lower side and the
tribunal ought to have considered Rs.6,000/- per month as
salary for heavy vehicle driver.
13] In this connection, learned counsel placed reliance
on the judgment of the Hon'ble Supreme Court in Minu Rout
and another .vs. Satya Pradyumna Mohapatra and others,
2013 (4) T.A.C. 840 (S.C.). In this case before the Hon'ble
Supreme Court, deceased was a driver on a car. The
Hon'ble Supreme Court observed that post of driver is a
skilled job and tribunal ought to have taken salary of the
deceased at Rs.6,000/- per month.
14] In the present case, AW-1 Sk. Nasruddin has filed
driving licence of Sheikh Ashiq at Exh.31. The learned
counsel for respondent no.2 relied upon (i) Nemappa .vs.
Bhimanna and another, 2017 ACJ 556 (ii) Oriental Insurance
Company Limited .vs. Khushboo Devi and others, 2013 ACJ
2797 and submitted that if a driving licence is restricted to a
specific vehicle, then the person will not be competent to
drive other vehicle then mentioned in the licence. The
driving licence indicates that Sheikh Ashiq was authorized to
drive LMV car and three wheeler auto-rickshaw. So far as
heavy motor vehicle like truck is concerned, licence though
mentions transport vehicle above 7500 kgs does not give
relevant details and it is not possible from licence (Exh.31)
to infer that Sheikh Ashiq was authorized to drive heavy
vehicle like truck. In this situation, monthly income of
Sheikh Ashiq, as deposed by both the witnesses needs to be
considered is Rs.4,000/- per month and not Rs.2,500/- per
month, as taken by the tribunal.
15] So far as daily bhatta is concerned, there is no
evidence to indicate that deceased was going on duty on
long tour and in the absence of such evidence, this court is
not inclined to consider bhatta as source of income of the
deceased. It appears from the reasons recorded by the
tribunal that future prospects of the deceased have not
been considered at all. On quantum, future prospects and
compensation under various other heads, learned counsel
for the appellant relied upon :
(1) Mohd. Ameeruddin and another .vs. United India
Insurance Company Limited and another,
[2011 ACJ 13]
(2) Minu Rout and another .vs. Satya Pradyumna
Mohapatra and others [2013 (4) TAC 840 (SC).
(3) Vimal Kanwar and others .vs. Kishore Dan and
others [2013 ACJ 1441]
(4) Kalpana Raj and others .vs. Tamil Nadu State
Transport Corporation [2014 (2) TAC 744 (SC).
(5) Neeta and others .vs. Divisional Manager,
Maharashtra State Road Transport Corporation,
[2015 ACJ 598]
(6) Asha Verman and others .vs. Maharaj Singh
and others [2015 (2) TAC 299 (SC).
(7) Surti Gupta .vs. United India Insurance Company
and another [2015 (3) TAC 5 (SC).
(8) The Judgment of the learned Single Judge of this
court in First Appeal No.624/2005 dated 25.7.2017
and
(9) In First Appeal No.1060/2007 dated 23.5.2017.
16] So far as loss of dependency is concerned, it is
already stated above that salary of Sheikh Ashiq is to be
taken as Rs.4,000/- per month. It is not in serious dispute
that deceased was 32 years old at the relevant time. As he
was below 40 years, 50% of actual salary of the deceased
towards the future prospects is to be taken in the instant
case. This would bring actual income of the deceased to
Rs.4,000 + Rs.2,000 = Rs.6,000/- per month.
17] Coming to the dependency, learned counsel for the
appellants submitted that if unit method is to be applied,
then at the most 1/5th deduction towards the personal
expenses of the deceased from the actual income needs to
be considered. In support of submission, learned counsel
placed reliance on the decision of the Hon'ble Supreme
Court in Sarla Verma (Smt) and others .vs. Delhi Transport
Corporation and another, (2009) SCC 121. In case of Sarla
Verma, Their Lordships of the Hon'ble Apex Court held that
where the number of dependents is 2 and 3, deduction
towards the personal and living expenses of the deceased
should be 1/3rd, where number of dependents 4 to 6,
deduction towards personal expenses of the deceased as
1/4th and where number of dependents exceeds, six
deduction should be 1/5th.
18] In the present case, in all there are seven
dependents. This fact is not controverted by the insurer.
Considering the number of dependents, 1/5th deduction
towards personal expenses of the deceased would be
appropriate in the light of the judgment of the Hon'ble Apex
Court in case of Sarla Verma.
19] If deduction of 1/5th towards personal and living
expenses of the deceased is considered, this would bring the
annual income to Rs.6,000 - 1,200 = Rs. 4,800 x 12 =
57,600/-. So far as multiplier is concerned, as deceased was
32 years old at the time of accident, multiplier of 16 is to be
applied as per the second schedule. This brings the
dependency to Rs.57,600/- x 16 = Rs.9,21,600/-.
20] In the backdrop of the judgments relied upon by
the learned counsel for appellants for loss of consortium,
amount of Rs.1,00,000/- needs to be awarded to the widow.
Children are entitled to amount of Rs.1,00,000/- each
towards love and affection. Funeral expenditure sanctioned
by the Hon'ble Apex Court is also Rs.25,000/-. The grant of
amount at lesser rate by the Tribunal, in the present case, is
thus unsustainable, in view of the law laid down by the
Hon'ble Apex Court in the catena of judgments.
21] In the light of the above, this court on evaluation
of the evidence and material placed on record finds that
appellants would be entitled to receive compensation as
follows :
(1) Monthly net income .. Rs.4,000/-
(2) 50% future prospects .. Rs.2,000/-
--------------
Rs.6,000/-
(3) 1/5 deduction towards
personal living expenses .. (-) Rs.1,200/-
...............
Rs.4800x12
Rs.57,600x16.
(4) Total loss of dependency .. Rs.9,21,600/-
(5) Loss of consortium .. Rs.1,00,000/-
(6) Loss of love and affection
for children .. Rs.4,00,000/-
(7) Loss of estate for all
respondents .. Rs.1,00,000/-
(8) Funeral expenses .. Rs. 25,000/-
...................................
Total amount of Rs.15,46,600/-.
Compensation : ...................................
22] The Hon'ble Supreme Court has clarified that
interest which is to be calculated on the amount of
compensation is 9% from the date of filing of the application
under Section 166 of the Motor Vehicles Act. Accordingly
(i) appellants are entitled to receive total compensation of
Rs.15,46,600/- along with interest at the rate of 9% per
annum from the date of application that is 9.9.2004 till its
actual realization; (ii) The amount already received by the
appellants shall be deducted from the total amount found
due and payable to them and (iii) The exercise of calculating
the compensation due and payable shall be completed
within a period of three months and balance amount
thereafter found payable shall be paid to the claimants
within next three months.
23] First Appeal No.153/2010 is allowed in above
terms. No costs.
(Kum. Indira Jain, J.)
Gulande, PA
