Bombay High Court

Smt. Jyoti Wd/O Deorao Bhadang And ... vs M/S Logistic Projects India Ltd, ... on 21 August, 2017

Bench: I.K. Jain

 FA 162.10.odt                                1


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

                       FIRST APPEAL NO.162 OF 2010


 1]     Smt. Jyoti wd/o Deorao Bhadang,
        Aged 35 years, Occupation-Labour,

 2]     Ravi s/o Deorao Bhadang,
        Aged 19 years,

 3]     Pravin s/o Deorao Bhadang,
        Aged 17 years,

        Applicant No.3 Minor, through
        M/G No.1, All R/o. Pawanshakti Nagar,
        Nagpur.                  .       ..                       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.
                   ..........

                               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.1025/2004.

2] The facts giving rise to the present appeal may be

stated in nutshell as under :

(i) Appellants are the claimants. Appellant

no.1-widow and appellant nos.2 and 3-sons of Deorao, 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,

Deorao with Sheikh Ashiq 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 Deorao

was a driver in a transport company and earning Rs.4,000/-

per month. He was aged about 34 years. He was paid daily

bhatta of Rs.150/-. Claimants were dependents on him and

the entire salary of Deorao was spent on the claimants. They

assessed total compensation to Rs.8,41,000/- but restricted

the same to Rs.6,50,000/-.

(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,

Deorao and Sheikh Ashiq 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.23. Claimants examined AW-1 Jyoti wd/o

Deorao Bhadang and AW-2 Munnalal s/o Shivshankar Dixit 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. 6.9.2004

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 Smt. Jyoti Bhadang,

widow of deceased, that on 11.7.2004, her husband Deorao

was proceeding on Luna with Sheikh Ashiq 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 Smt. Jyoti wd/o Deorao

Bhadang is not an eyewitness to the accident. Her evidence

is substantiated by the 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 the 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 Smt. Jyoti wd/o Deorao Bhadang stated in the

evidence that her husband Deorao was a heavy vehicle

driver and was employed in a transport company Panditji

Roadlines. She stated that her husband Deorao was

required to go on long distance tour. Her husband 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 her evidence.

12] The claimants examined AW-2 Munnalal s/o

Shivshankar Dixit to prove the salary certificate of the

deceased. AW-2 was running transport business and owner

of Panditjee Roadlines. It is stated by AW-2 that Deorao was

driver working with them on truck no.CG-04-J-6635 and his

salary was Rs.4,000/- per month. According to AW-2, in

addition to salary, Deorao 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 Smt. Jyoti wd/o Deorao

Bhadang has filed driving licence of Deorao 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 Deorao was

authorized to drive transport vehicle but does not give

relevant details and it is not possible from licence (Exh.31)

to infer that Deorao was authorized to drive heavy vehicle

like truck. In this situation, monthly income of Deorao, 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 :

(i) Mohd. Ameeruddin and another .vs. United India Insurance Company Limited and another, [2011 ACJ 13]

(ii) Minu Rout and another .vs. Satya Pradyumna Mohapatra and others [2013 (4) TAC 840 (SC).

(iii) Vimal Kanwar and others .vs. Kishore Dan and others [2013 ACJ 1441]

(iv) Kalpana Raj and others .vs. Tamil Nadu State Transport Corporation [2014 (2) TAC 744 (SC).

(v) Neeta and others .vs. Divisional Manager, Maharashtra State Road Transport Corporation, [2015 ACJ 598]

(vi) Asha Verman and others .vs. Maharaj Singh and others [2015 (2) TAC 299 (SC).

(vii) Surti Gupta .vs. United India Insurance Company and another [2015 (3) TAC 5 (SC).

(viii) The Judgment of the learned Single Judge of this court in First Appeal No.624/2005 dated 25.7.2017 and

(ix) 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 Deorao is to be taken as

Rs.4,000/- per month. It is not in serious dispute that

deceased was 34 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 1/4th 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 three

dependents. This fact is not controverted by the insurer.

Considering the number of dependents, 1/3rd 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 1/3rd towards personal and living

expenses of the deceased is considered, this would bring the

annual income to Rs.6,000 - 2,000 = Rs. 4,000 x 12 =

48,000/-. So far as multiplier is concerned, as deceased was

34 years old at the time of accident, multiplier of 16 is to be

applied as per the second schedule. This brings the loss of

dependency to Rs.48,000/- x 16 = Rs.7,68,000/-.

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)            1/3rd deduction towards
                personal living expenses          ..    (-)     Rs.2,000/-
                                                                ...............
                                                                Rs.4000x12
                                                              Rs.48,000x16.

 (4)            Total loss of dependency          ..           Rs.7,68,000/-

 (5)            Loss of consortium                ..           Rs.1,00,000/-

 (6)            Loss of love and affection
                for two children                  ..           Rs.2,00,000/-
 (7)            Loss of estate for all
                respondents                       ..           Rs.1,00,000/-

 (8)            Funeral expenses                  ..         Rs. 25,000/-

...................................

                               Total amount of             Rs.11,93,000/-.
                               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.11,93,000/- along with interest at the rate of 9% per

annum from the date of application that is 6.9.2004 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