Diwansingh Tabasingh Gill vs T Saraswathi Thangaraju And ...
2017 Latest Caselaw 6665 Bom

 FA 726.06.odt                                1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR
                       FIRST APPEAL NO.726 OF 2006

 Diwansingh s/o Tabasingh Gill,
 Aged about 65 years,
 Occupation-Nil,
 Resident of 29, Samarth Nagar,
 Wardha Road, Nagpur.                                             (Dead)
 L.Rs. of Appellant.
 1-a]      Gursangat Singh s/o Late
           Diwansingh Gill,
           Aged about 38 years,
           Occupation-Business,
           Resident of Flat No.404,
           'Krishna Pride', 17, Navneet
           Society, Narendra Nagar,
           Nagpur.
 1-b]      Mrs. Gurmeetkumar w/o Surjeetsingh
           Asla, Aged about 60 years,
           Occupation-Business, Resident of
           71, Pandey Layout, Purshottam
           Apartment, Nagpur.
 1-c]      Mrs. Ajitkumar w/o Sujan Singh,
           Aged about 62 years,
           Occupation-Household,
           Resident of Jammu & Kashmir Colony,
           Rudrapur Road,
           Jamunangar (Hariyana)           ..                     APPELLANTS


                               .. VERSUS ..

 1]     Smt. T. Saraswathi w/o R. Thangaraju,
        Adult, Occupation-Business,
        Resident of No.2/227, Verman Kallu
        Valasu, Kallankattu Valasu, Post-
        Kumarapalayam Tiruchengode
        Taluka, Namakkal District
        (Tamil Nadu).



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  FA 726.06.odt                                 2

 2]     United India Insurance Company Limited,
        Branch Office, 4/23-G, New Idapadi Road,
        Sankari-637 301 (Tamil Nadu).   ..      RESPONDENTS


                               ..........
 Shri Masood Shareef, Advocate for Appellants,
 Shri M.M. Kalar, Advocate for Respondent no.2.
 None appeared for Respondent no.1 though duly served.
                               ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : AUGUST 31, 2017.

ORAL JUDGMENT

This appeal questions the legality, correctness and

propriety of the Award dated 29.4.2006 passed by the

Motor Accident Claims Tribunal, Nagpur in Claim Petition

No.614/2001.

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

stated in nutshell as under :

(i) Appellants are the legal representatives

of deceased appellant Diwansingh Gill. Diwansingh Gill and

his wife Mrs. Kesarkar Gill filed claim petition under Section

166 of the Motor Vehicles Act, as their two sons

Manjeetsingh and Jasvindersingh died in a vehicular

accident. Mrs. Kesarkar died during the pendency of

petition and her name came to be deleted from the petition.

Diwansingh died during the pendency of appeal and the

legal representatives of Diwansingh have been substituted

vide order dated 21.11.2016.

(ii) According to appellants, Manjeetsingh

and Jasvindersingh were doing the work of repairing of the

truck. On 16.3.2001 at about 4.30 am, truck was parked by

the side of the road on National Highway No.7 at Jasapur,

Tahsil and District-Nagpur. That time, Manjeetsingh and

Jasvindersingh were repairing Truck No.MHG-7793.

According to appellants, Truck No.TN-28/R-3767 came in a

high speed and dashed against stationary truck which was

being repaired by Manjeetsingh and Jasvindersingh. The

impact was so severe that Manjeetsingh and Jasvindersingh

received multiple injuries and died.

(iii) It was the case of claimants that

Manjeetsingh was aged about 30 years. He was working as

a mechanic with Punjab Engineering Works, Nagpur and

earning Rs.3,500/- to Rs.4,000/- per month. Due to untimely

death of the son, parents claimed compensation to the tune

of Rs.4,80,000/-. It was contended that parents were

dependents on the son and considering the loss caused to

them, they were entitled to the compensation towards loss

of dependency and other consequential benefits.

3] Claim Petition proceeded without reply against

respondent no.1.

4] Respondent no.2-Insurance Company filed written

statement (Exh.18) and resisted the claim. The defence of

insurance company was that Truck No.TN-28/R-2767 was not

involved in the accident. According to insurance company,

driver of stationary truck has not taken all necessary

precautions. At the time of occurrence of accident, it was

dark. The indicators of the stationary truck were not on and

the driver of the truck passing through the road was not

aware that the truck was parked at a particular spot. The

contention is that due to negligence on the part of driver of

stationary truck accident took place. A plea of contributory

negligence is raised by the insurance company. It is

submitted that the driver, owner and the insurer of the

stationary truck have not been joined as parties and the

petition suffers from non-joinder of necessary parties.

5] Based on the rival pleadings, tribunal framed

issues at Exh.21. Claimants examined AW-1 Diwansingh Gill

(since deceased) and AW-2 Avtarsingh in support of their

claim. Respondent no.2/insurer did not lead the oral

evidence. Considering the oral and documentary evidence,

tribunal came to the conclusion that drivers of both the

trucks were negligent and due to their negligence, accident

occurred. The tribunal awarded compensation to the tune of

Rs.68,600/- inclusive of no fault liability amount with interest

at the rate of 7.5% per annum from the date of presentation

of petition i.e. 16.7.2001 till its realization holding both the

respondents jointly and severally liable to pay the same.

Being dissatisfied with the quantum of compensation

awarded by the tribunal, claimants have preferred this

appeal.

6] Heard Shri Masood Shareef, learned counsel for

appellants and Shri M.M. Kalar, learned counsel for

respondent no.2-Insurance Company. None appeared for

respondent no.1 though duly served.

7] On going through the rival contentions of the

parties, pleadings raised in the petition and reply, 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, fair

and reasonable 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 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 Diwansingh Gill that

he had not personally seen the accident. However,

claimants placed reliance on the police papers. FIR (Exh.25)

clearly indicates that offence was registered against the

driver of Truck No.TN-28/R-2767. So far as the stationary

truck is concerned, crime was not registered against the

driver of stationary truck. From spot panchanama (Exh.26)

drawn on 16.3.2001 betweem 9.50 hours to 10.45 hours, it

can be seen that the offending truck was on the wrong side

of the road. Insurer has come with a defence that indicators

of stationary truck were not on and, therefore, driver of the

truck in motion was not aware that truck was parked by the

side of the road. The submission is that driver of stationary

truck was equally responsible for accident, as he did not put

the indicators on while parking the truck to the side of road.

From the spot panchanama, it is difficult to infer that at the

time of occurrence of accident indicators were not on. The

driver of offending truck has not been examined to prove

the factum of contributory negligence. Non-examination of

driver of the truck in motion negatives the defence of

contributory negligence raised by insurance company. On

the basis of police papers and in the absence of evidence of

contributory negligence, this court finds that the claimants

could establish that accident occurred due to rash and

negligent driving of Truck No.TN-28/R-2767 by its driver.

10] The next question relates to quantum of

compensation and the extent of liability of the respondents

to pay the same. It is stated by AW-1 Diwansingh in his

evidence that his son Manjeetsingh was motor mechanic

and doing job of repairing of heavy motor vehicles on

contract basis with Punjab Engineering Works, Nagpur. He

stated that Manjeetsingh was earning Rs.3,500/- to

Rs.4,000/- per month. Salary certificate (Article 'C') was

produced by the witness in support of his evidence.

11] The claimants examined AW-2 Avtarsingh, the

owner of garage where Manjeetsingh was working as a

mechanic. According to Avtarsingh, Manjeetsingh was

working as a mechanic in his garage on contract basis and

he was paid Rs.3,500/- to Rs.4,000/- per month. He stated

that Manjeetsingh used to do the work of repairing of engine

of heavy vehicles. He stated that till his death,

Manjeetsingh was attached to his garage and on the basis of

the record, he issued salary certificate (Exh.33). The salary

certificate indicates that Manjeetsingh was getting

Rs.3,500/- to Rs.4,000/- per month.

12] The tribunal discarded the salary certificate on the

ground that wage register, attendance register, muster roll

and the relevant record, on the basis of which, salary

certificate came to be issued, were not produced by AW-2

Avtarsingh. The tribunal observed that in the absence of

cogent proof about the employment and the salary, it will be

unsafe to rely upon the testimony of AW-2 Avtarsingh and

salary certificate (Exh.33). The notional income of the

deceased was, therefore, considered as Rs.2,000/- per

month by the tribunal and based on the notional income,

loss of dependency came to be arrived at.

13] Learned counsel for appellants seriously assailed

the reasons recorded by the tribunal and submitted that

evidence of Avtarsingh has remained unshaken in the cross-

examination. It is submitted that from the evidence of

Avtarsingh, it is crystal clear that Manjeetsingh was working

as a motor mechanic and earning Rs.3,500/- to Rs.4,000/-

per month. Learned counsel submitted that award of

compensation by the tribunal must be just, reasonable and

fair and it is the duty of the tribunal to fix a just

compensation. The submission is that the tribunal ought not

to have succumbed to the technicalities particularly when

the rules of evidence are not strictly applicable to the claim

petition. Learned counsel submitted that there was no

reason to discard the unshattered testimony of Avtarsingh

corroborated by father of the deceased and the salary

certificate. On the law relating to award of compensation

by the tribunal and the duty of the courts to determine just

and fair compensation, learned counsel placed reliance on :

[i] General Manager, Kerala State Road Transport Corporation, Trivandrum .vs. Susamma Thomas (Mrs) and others [(1994 2 SCC 176]

[ii] Lata Wadhwa and others .vs. State of Bihar and others [AIR 2001 SC 3218]

[iii] Sarla Verma (Smt) and others .vs. Delhi Transport Corporation and another [(2009) 6 SCC 121]

[iv] Rajesh and others .vs. Rajbir Singh and others [(2013) 9 SCC 54]

[v] Reshma Kumari and others .vs. Madan Mohan and another [(2013) 9 SCC 65)

[vi] Rajesh and others .vs. Rajbir Singh and others [2014 (1) Mh.L.J. 79]

[vii] Sandhya Rani Debbarma and others .vs. National Insurance Company Limited and another [(2016) 16 SCC 206]

14] On going through the above referred judgments,

it can be seen that the law laid down by the Hon'ble

Supreme Court in Sarla Verma (supra) and the well settled

steps that is Step 1 (Ascertaining the multiplicand), Step 2

(Ascertaining the multiplier) and Step 3 (Actual calculation)

still hold the field.

15] In the present case, from the evidence of AW-2

Avtarsingh, it has been established that monthly income of

Manjeetsingh was Rs.3,500/- to Rs.4,000/-. Based on the

evidence of father of the deceased and Avtarsingh, monthly

income of Manjeetsingh needs to be considered as

Rs.3,500/- per month and not Rs.2,000/- notional income as

taken by the tribunal.

16] So far as determination of future prospects as a

criteria is concerned, as there was divergence of views,

matter was referred before the Larger Bench of the Hon'ble

Supreme Court and in case of Reshma Kumari and others

.vs. Madan Mohan and another [(2013) 9 SCC 65], the

Larger Bench of the Hon'ble Supreme Court observed that

the standards fixed in Sarla Verma case on the aspect of

deduction for personal living expenses in paras 30, 31 and

32 must ordinarily be followed unless a case for departure in

the circumstances noted in the preceding paragraphs is

made out. In para 43 conclusions have been sculled out as

follows :

43.1. In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment.

43.2. In cases where the age of the deceased is up to 15 years, irrespective of Section 166 or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed.

43.3. As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.

43.4. The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death.

43.5. While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in Sarla Verma.

43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 41 above.

43.7. The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration.

17] In the case on hand, it is not in dispute that

Manjeetsingh was a bachelor. The claimants were the

parents. In regard to bachelor, normally 50% is deducted

as personal and living expenses, because it is assumed that

bachelor would tend to spend more on himself. It is not in

serious dispute that deceased was 30 years old. As he was

below 40 years, 50% of actual salary of the deceased

towards future prospects is to be taken in the instant case.

This would bring actual income of the deceased to

Rs.3,500/- + Rs.1,750/- = Rs.5,250/- per month.

Considering 50% personal expenses, in view of case of Sarla

Verma, actual income of the deceased would come to

Rs.2,625 x 12 = 31,500/- per annum. So far as multiplier is

concerned, as deceased was 30 years old at the time of

accident, in view of second schedule and the guidelines in

case of Sarla Verma, multiplier of 17, if applied, would be

appropriate. This brings the loss of dependency to

Rs.31,500 x 17 = Rs.5,35,500/-.

18] In the backdrop of the judgments relied upon by

the learned counsel for appellants for loss of love and

affection, parents were entitled to an amount of

Rs.1,00,000/-. 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 and

applying the multiplier of 5 is thus unsustainable in law.

19] 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.3,500/-

 (2)            50% future prospects              ..             Rs.1,750/-
                                                                 --------------
                                                                 Rs.5,250/-

 (3)            50% deduction towards
                personal living expenses          ..    (-)     Rs.2,625/-
                                                                ...............
                                                                Rs.2,625x12
                                                              Rs.31,500x17.

 (4)            Total loss of dependency          ..           Rs.5,35,500/-

 (5)            Loss of love and affection        ..           Rs.1,00,000/-

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

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

                               Total amount of               Rs.6,60,500/-
                               Compensation :     ...................................



 20]            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

appellants are entitled to receive total compensation as

stated above along with interest at the rate of 9% per

annum from the date of application that is 16.7.2001 till its

actual realization.

21] First Appeal No.726/2006 is allowed in the above

terms. No costs.

(Kum. Indira Jain, J.) Gulande, PA