Bombay High Court
The New India Assurance Co. Ltd. ... vs Chanda Gowardhan Gomkade And ... on 31 August, 2017
Bench: S.B. Shukre
(Judgment) 3108 FA 380-2017 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 380/2017
The New India Assurance Co. Ltd.
through Regional Manager,
4th Floor, MECL Building, Nagpur - MS. APPELLANT
.....VERSUS.....
1] Chanda Gowardhan Gomkade,
Aged 38 years, Occu: Housewife,
2] Gowardhan Shivhari Gomkade,
Aged 45 years, Occu: Agriculturist,
All R/o. Bodna, Post Khopada,
Tq. Morshi, District - Amravati.
3] Mahesh s/o Raghuveer Singh,
Aged 33 years, Occu: Driver,
R/o. Village - Bandha,
Distt. Morena, Madhya Pradesh.
4] Purushottam Singh s/o Sobaran Singh Gurjar,
Aged 50 years, Owner of the Truck bearing
no. MP-06/GA-1082,
R/o. Bandha, Hetampur Thana,
Sarai Choi Morena, Distt. Morena. RESPONDE NTS
Shri S.J. Kamble, counsel for appellant.
Shri M.R. Johrapurkar, counsel for respondent nos.1 and 2.
None present for respondent nos.3 and 4.
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(Judgment) 3108 FA 380-2017 2/11
CORAM: S.B. SHUKRE, J.
DATE : AUGUST 31, 2017.
ORAL JUDGMENT :
Heard. ADMIT.
2] Heard finally by consent of the learned
counsel for the appellant and learned counsel for the
claimants, who are respondent nos.1 and 2 in this case.
3] Nobody appears for respondent nos.3 and 4,
the driver and owner of the offending vehicle, though
duly served on final hearing.
4] This appeal arises out of the judgment and
award dated 23/12/2016 rendered in Claim Petition No.
96/2011, by the Member, Motor Accident Claims
Tribunal, Amravati.
5] The Claim Petition filed under Section 166 of
the Motor Vehicles Act (for short, "M.V. Act") was partly
allowed by the Motor Accident Claims Tribunal,
(Judgment) 3108 FA 380-2017 3/11
Amravati. The Tribunal found that accident which
occurred on 06/01/2011 on Amravati - Badnera road, in
which, son of the respondent nos.1 and 2 died, was
solely due to the rash and negligent driving of the
offending vehicle, a Truck bearing registration no. MP-
06-GA-1082. This Truck was, at the relevant time, driven
by the respondent no.3, owned by the respondent no.4
and insured with the appellant. The Tribunal also found
that in this accident, son of respondent nos.1 and 2,
riding pillion, on Hero Honda Splendor motor-cycle
bearing registration no. MH-32-H-8016, was badly hit by
the offending vehicle, which resulted in his
instantaneous death. The Tribunal, considering the
educational record of the deceased son, notionally
computed income of the deceased to be at Rs.8,000/-
per month, added to it 50% future prospects and
applying the multiplier of '18', as per the age of the
deceased, which was 19 years, calculated the total loss
of dependency. The Tribunal, before arriving at the
figure of total loss of dependency, deducted 50% of the
income from the amount of Rs.8,000/- on account of
personal expenses of the deceased. The Tribunal then
(Judgment) 3108 FA 380-2017 4/11
proceeded to add further amounts on account of loss of
love and affection, loss of estate and funeral expenses
and thus, granted total compensation of Rs.15,21,000/-,
together with interest thereon at the rate of 7% per
annum from 25/02/2011 till the realization of the
amount by it's impugned award. The appellant, being
not satisfied with the same, is before this Court, in the
present appeal.
6] According to learned counsel for the
appellant, compensation so granted, is on a very higher
side. He submits that the multiplier should have been
applied by considering the age of the parents and not of
the deceased. He also submits that since deceased was
not earning any income, the ratio of Rajesh and others
-Vs- Rajbir Singh and others, 2013 ACJ 1403, decided
by the Hon'ble Supreme Court, should not have been
applied, and therefore, no advantage in the nature of
addition on account of future prospects to the notional
income of the deceased, should have been given to the
respondent nos.1 and 2. This is, however, not accepted
by the learned counsel for the respondent nos.1 and 2,
who submits that the impugned award is based upon the
(Judgment) 3108 FA 380-2017 5/11
conclusion drawn from the evidence available on record
and the applicable ratios of the judgments of the Hon'ble
Supreme Court, and therefore, there is no need to make
any interference with the impugned award.
7] I have gone through the impugned award as
well as the record of the case. Now, the only point which
arises for my determination is:
"Whether the compensation awarded in the
instant case is just and proper?"
8] As far as the aspect of the application of
appropriate multiplier is concerned, I do not think that
there can be any dispute about the proposition that now
it is fairly well settled that for determination of the
appropriate multiplier, it is the age of the deceased and
not the age of the parents which is relevant. This Court
by considering various decisions of the Hon'ble Supreme
Court, in the case of The Oriental Insurance Co. Ltd.
-Vs- Naina Bapurao Bhamodkar and others, 2014(3)
ALL MR 748, has held that, "The selection of the
(Judgment) 3108 FA 380-2017 6/11
multiplier must be done by taking into consideration the
age of the deceased and not of the age of the parents".
There is no reason for me to take a different view in the
present case. Therefore, argument of the learned counsel
for the appellant, in this regard, is rejected. I find that
the multiplier of '18', based upon the age of the
deceased, applied in the present case by the Tribunal, is
proper and there is no need to make any interference
with the same.
9] As regards the addition made to the notional
income of Rs.8,000/- by the Tribunal on 50% basis, I
also find that no fault could be found with the approach
so adopted by the learned Tribunal.
10] In the case of Rajesh -Vs- Rajbir (supra), the
Hon'ble Supreme Court held that, "In case the deceased
falls in the category of self-employed or a person with fixed
wages, addition on account of future prospects depending
upon the age of the deceased should be made". It also held
that, "In such cases, if the age of the deceased was found to
be below 40 years, there should be addition of 50% to the
(Judgment) 3108 FA 380-2017 7/11
actual income of the deceased while computing future
prospects". It was further held that, "If the age of the
deceased was in the age group of 40 to 50 years, such
addition should be no more than 30%". While laying
down this principle, the Hon'ble Supreme Court
reiterated the principle of law laid down in the case of
Santosh Devi -Vs- National Insurance Co. Ltd., 2012
ACJ 1428 (SC). So, it would be useful for us to also
refer to the case of Santosh Devi -Vs- National
Insurance (supra). When this is done, one would find
that addition of some amount, on account of future
prospects to the actual income of the deceased, can be
made even in the instant case. The reason being that in
Santosh Devi -Vs- National Insurance (supra), the
Hon'ble Supreme Court has found that, due to ever
rising cost of living and prices of the essentials, a trend
has been developed whereby the persons falling in the
category of self-employed or fixed wages groups, exhibit
a marked a tendency to increase the cost of their labour,
and therefore, it would be reasonable to think that even
the persons belonging to either of these categories would
be having good prospects of increase in their income, in
(Judgment) 3108 FA 380-2017 8/11
future.
11] So, if a person on fixed wages or a person on
self-employment, because of this tendency to increase
his cost of labour which is fired by inflation, would have
future prospects, there is no reason for me to hold that a
student with bright career would not have a good chance
of seeing incremental rise in his income as he keeps
gaining experience and power as well to bargain for
more income. When a student with good educational
career can be reasonably presumed to successfully
complete his education and earn some income using the
skills that he would possess at the end of the course,
such a student can also be presumed reasonably to
combine his skills with experience to pool in for himself
more income as the years go by. Therefore, I am of the
view that it cannot be held that principle of addition of
income on account of future prospects cannot be applied
to a case where the deceased is student. I would
emphatically find that such addition of future prospects
can be made even in a case where the deceased is
student, by drawing support from Santosh Devi
(Judgment) 3108 FA 380-2017 9/11
(supra). But, this is only by way of a principle. Whether
any such addition be made or not, and if yes, in what
manner, are questions of fact, the answers to which
would be provided by fact - situations of every case.
12] In the present case, the deceased son of the
respondent nos.1 and 2, as the evidence of PW-1 shows,
was indeed having reasonably good prospects to earn
income and that is the reason, why the Tribunal
determined his monthly income at Rs.8,000/- per month
on notional basis. If it is found that deceased could have
notionally earned in future income of Rs.8,000/- per
month, there is no reason for me to hold that his such
income, would always have remained stationary, no
matter his skills, which would sharpen further, and his
power of bargain, which he would get by experience.
Besides, inflation in economy would also lead to a
situation of general rise in wages or salary or income. It
is significant to note here that the evidence available
here completely supports a conclusion that deceased son
of respondent nos.1 and 2 would have reasonably seen a
rising graph of his income as years went by. The
(Judgment) 3108 FA 380-2017 10/11
evidence of PW-1 clearly shows that the deceased had
earned a reputation of being very good at English as well
as one of the engineering subjects of Information
Technology, for, he was honoured by certificates of
excellence in these subjects. This evidence of PW-1 has
gone completely unchallenged. The inference then
would be irresistible - addition to the notional income of
the deceased by way of 50% of the notional income on
account of future prospects, is rational thinking, and this
is what the Tribunal has done in the instant case. It
would then follow that, it cannot be said that the
principles laid down in the cases of Rajesh -Vs- Rajbir
(supra) and Santosh Devi (supra) could not be drafted
in here for giving advantage to the claimants.
13] As regards the other additions made by the
Tribunal on account of non-pecuniary heads, I do not
find any illegality in as much as there is no dispute about
the same.
14] In these circumstances, I find that the
compensation awarded by the Tribunal, is just and
(Judgment) 3108 FA 380-2017 11/11
proper. The point is answered accordingly. The appeal
deserves to be dismissed.
15] Appeal stands dismissed.
16] The amount deposited in this Court, is
permitted to be withdrawn by the claimants i.e.
respondent nos.1 and 2.
17] Parties to bear their own costs.
JUDGE
Yenurkar
