Divisional Controller, ... vs Parvatibai Wd/O Buddulal ...
2017 Latest Caselaw 4781 Bom

                                                       1                                      FA 587.05(J)
                                                                                                              
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.


                               FIRST APPEAL NO.587 OF 2005


                Divisional Controller,                      ...APPELLANT
                Maharashtra State Road Transport Corporation,
                Division Office,
                Tekdi Road, Sitabuldi, Nagpur.
                Through it's Divisional Controller.

                                               --Versus ---

1.              Smt. Parvatibai wd/o Buddulal Prajapati,             ..RESPONDENT
                                                                                  S
                                                                                    
                Aged about 41 years, Occ. Household,

2.              Nilesh s/o Buddulal Prajapati,
                Aged 15 years. Minor, Occ. Student.

3.              Ashok s/o Buddulal Prajapati,
                Aged 13 years, Minor, Occ. Student.

                Respondents Nos. 2 and 3 are minors,
                through their natural guardian, mother.

                All respondent nos. 1 to 3 are
                residents of Kamsari Bazzar, Kamptee,
                Post-Tah-Kamptee, District Nagpur. 


------------------------------------------------------------------------------------------------------
Shri R.S.Charpe, Advocate for Appellant
None for respondents though duly served on merits.
-----------------------------------------------------------------------------------------------------

                                                                 CORAM : S.B.SHUKRE,J.

DATED : 20.07.2017

2 FA 587.05(J)

ORAL JUDGMENT

This first appeal is preferred against the judgment and order dated 4th

August, 2015 rendered in Claim Petition No.677/1998 by the Motor Accident

Claims Tribunal, Nagpur.

2. The accident in this case had taken place on or about 6.45 p.m. on

04.04.1997 at Tulani Bus Stop of Ordnance factory, Nagpur. In the accident, the

husband of respondent no.1 and father of respondent nos. 2 and 3 suffered

grievous injuries to which he succumbed almost immediately at the spot of

accident. It was alleged that the accident occurred when the deceased, one

Buddulal, was trying to board the City Bus bearing registration No. MH-12/R-

1124, when another City Bus bearing registration No. MH-12/F-8442 came from

behind and knocked down deceased - Buddulal. The rashness and negligence was

alleged against the drivers of both these city buses. Accordingly, a petition

claiming compensation under Section 166 of the Motor Vehicles Act, 1988 was

filed by the respondents. On merits of the case, the tribunal found that even

though, the respondents were liable to receive the compensation, total amount of

compensation which was computed to be at Rs.7,65,000/- was required to be

reduced by half, on account of contributory negligence in equal measure on the

part of the deceased - Buddulal and thus the tribunal further found that claimants

3 FA 587.05(J)

were entitled to receive compensation of Rs.3,82,500/- only, and same was

granted to them with interest payable from the date of petition till realization.

Accordingly judgment and order were passed on 4 th August, 2005 by the learned

Member of the Motor Accident Claims Tribunal, Nagpur. Not being satisfied with

the same, the appellant - MSRTC, is before this Court in the present appeal.

3. I have heard Shri Charpe, learned counsel for the appellant. None

appears on behalf of respondents though duly served on merits. I have also gone

through the record of the case including the impugned judgment and order. Now,

the only point which arises for my determination is,

Whether the compensation awarded by the Tribunal is just and proper?

4. Learned counsel for the appellant submits that as per ratio in Sarla

Verma (Smt) and others Vs. Delhi Transport Corporation and another,

reported in (2009) 6 SCC 121, the Tribunal ought to have taken into

consideration the salary which was actually paid to the deceased at the time of

the accident and not that salary which was received by him on account of pay

revision subsequently made, as has been done by the tribunal. He maintains that

as per ratio of Sarala Verma's case (supra), it is the salary which is payable to the

deceased at the time of accident which is relevant for the purpose of

4 FA 587.05(J)

determination of the loss of income or loss of dependency.

5. In the instant case, the gross salary of the deceased which he received

at the time of his death was of Rs.5,540/-. After the death of the deceased in the

accident, his salary was revised and was given effect to from 01.01.1996 and

onwards. The effect of revision was that his gross salary which was payable to the

deceased at the time of accident i.e. on 04.04.1997 was raised to Rs.6,425/- per

month. The effect of revised pay scale in the present case has been given

retrospectively though it has been actually implemented after the death of the

deceased. It is not the case here that the revision of the salary as well as effect of

pay revision both have taken place after the date of the accident. Therefore, the

Tribunal has rightly relied upon the ratio of the case of Asha and other Vs.

United India Insurance Company, reported in 2004 ACJ 448 and applied the

same to the facts of this case. Even the decision of Sarla Verma(supra) would

show that what is to be considered is actual salary or the income received by the

deceased at time of the accident. In the instant case, the revised salary has been

paid to the deceased even for the month of March 1997, which fact is borne out

from the evidence available on record. Therefore, I do not find any substance in

the argument of learned counsel for the appellant that the decision of Sarala

5 FA 587.05(J)

Verma's case has not been properly applied to the facts of the instant case. The

submission is, therefore, rejected.

6. Now, the question would arise as to whether or not, proper multiplier

has been applied in the instant case. The multiplier applied has been of 15, which

according to the learned counsel for the appellant could have been of 14,

considering the fact that by the own admissions of the respondents, the deceased-

Buddulal was of 45 years of age at the time of accident which indicated that he

fell in the age group of 41-45 years. The submission deserves to be accepted out-

rightly. The respondents, in their Claim Petition, have shown the age of the

deceased as of 45 years. The post - mortem report vide Exh.28 also shows the age

of the deceased to be of 45 years. Therefore, I find that at time of accident, the

deceased was 45 years of age and he fell in the age group 41-45 years. As per the

judgment of Sarla Verma (supra), for this age group, the proper multiplier is of 14

and not of 15. This multiplier would have to be applied to the annual income of

the deceased which, after deducting 1/3rd amount for personal expenses, comes to

Rs.50,000/-. The total loss of dependency for the respondents then would be of

Rs.7,00,000/-. To this amount, additional sums like amounts of Rs.10,000/-,

Rs.2,500/- and Rs.2,500/- on account of loss of consortium, loss of estate and

funeral expenses, as already given by the Tribunal, would also have to be added

6 FA 587.05(J)

and this would make the total compensation payable to be of Rs.7,15,000/-.

From this amount, as rightly held by the learned Member of the Tribunal, 50%

amount would have to be deducted on account of 50% contributory negligence of

the deceased and doing so, the amount of compensation actually payable to the

respondents would come to Rs.3,57,500/-.

7. Accordingly, I find that the respondents are entitled to receive from

the appellant an amount of Rs.3,57,500/- together with 8% interest upon it from

the date of petition till realization of this amount and same shall be paid by the

appellant within three months from the date of the order.

8. If the decreetal amount calculated as per the impugned decree has

already been deposited, there shall be no need for the appellant to deposit any

further amount and the appellant would be entitled to withdraw any amount

which is found to be in excess in terms of this order. In such a case, liberty would

have to be given to the respondents to withdraw the amount, but, if the

respondents have already withdrawn the amount, liberty to the appellant to

recover from them whatever is found to be excess payment in terms of this order,

would also have to be given to the appellant. Such liberty to both sides is given.

The point is answered accordingly.

9. The appeal is partly allowed. The impugned award is modified in the

7 FA 587.05(J)

above terms. The parties to bear their own costs.

JUDGE

Andurkar