Bombay High Court
Smt. Rajeshree Sanjaykumar Kadam ... vs Reliance Gen. Ins. Co. Ltd on 21 July, 2017
Bench: Shantanu S. Kemkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1243 OF 2016
WITH
CIVIL APPLICATION NO. 3466 OF 2016
Reliance General Insurance Co. Ltd. ..Appellant
Vs
Smt. Rajeshree Sanjaykumar Kadam and ors. ..Respondents
AND
CIVIL APPLICATION NO. 487 OF 2017
IN
FIRST APPEAL NO. 1243 OF 2016
Ms Deepika Prabhala a/w. Mr. Rajesh Kanojia i/b Res Juris for the
Appellant.
Mr. T.J. Mendon for the Applicants in CAF-487/17 and for Respondent
FA No.1243 of 2016.
CORAM : SHANTANU S. KEMKAR &
M. S. SONAK, JJ.
Date of Reserving the Judgment : 14 July 2017.
Date of Pronouncing the Judgment : 21 July 2017.
JUDGMENT : (PER : M. S. SONAK, J.)
1] Heard learned counsel for the parties.
2] At their request and with their consent the appeal is admitted
and taken up for final disposal. This is mainly because Ms Deepika
Prabhala, learned counsel for the appellant, has submitted that she
has only two contentions to raise in this appeal and Mr. Mendon,
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learned counsel for the respondents-claimants, has also stated that the
respondents do not intend to file any cross-appeals or cross objections
in the matter.
3] This appeal is directed against the award dated 30th January
2016 made by the Motor Accident Claims Tribunal (MACT), Mumbai
in Motor Accident Claim Petition No. 323 of 2008. The operative
portion of the impugned award reads thus:
"1] Motor Accident Claim Application no. 323/2008 is allowed
with proportionate cost.
2] The Opposite party and insurer shall jointly and severally
pay to the applicants a sum of Rs. 63,48,360/- (In words Rupees
Sixty - Three Lacs Forty Eight Thousand Three Hundred and Sixty
Only) towards compensation amount (inclusive of NFL amount)
along with interest thereon @ 7% p.a. from date of application till
actual realization.
3] Out of the total compensation amount, 25% be paid to the
applicant no.1 widow, 30% each be paid to the applicant nos. 2 &
3, the children of deceased and remaining 15% be paid to the
applicant no.4 mother of deceased along with interest accrued
thereon.
4] The share of minor applicant nos. 2 & 3 be invested in any
Nationalised Bank of choice of applicant no.1 till they attain the
age of majority, with liberty to applicant no.1 to withdraw the
quarterly interest thereon.
5] A/c payee cheques of above mentioned amount in the names
of respective applicants be deposited in the office of the Tribunal
and Account officer shall handover the same to the respective
applicants on due identification and payment of deficit court fees.
6] Award be drawn up after payment of deficit court fee."
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4] The Motor Accident Claim Petition No. 323 of 2008 was
instituted by and on behalf of Rajeshree (widow - aged 35 years),
Charitra (son - aged 11 years), Shweta (daughter- aged 4 years) and
Yashodabai (mother- aged 75 years) claiming compensation of Rs.5
crores on account of demise of Sanjaykumar Kadam (aged 42 years)
on account of motor accident. On 29th November 2007, a motor Tipper
(Dumper) - insured vehicle dashed Sanjaykumar from behind, whilst
Sanjaykumar was driving his motorcycle, resulting in his
instantaneous death on the spot.
5] Ms Deepika Prabhala, learned counsel for the appellant-
Insurance Company has raised only following two grounds in support
of this appeal:
a] That the MACT, erred in deducting only 40% of
determined compensation amount on account of contributory
negligence of Sanjaykumar, when, the evidence on record, very
clearly establishes that Sanjay Kumar was not wearing a helmet
while driving his motorcycle at the time of accident. She
submits that the deductions should have been to the extent of
50% and not 40% ; and
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b] That the MACT, clearly erred in taking into consideration
allowances like uniform allowance, kit allowances and diet
allowances for determining Sanjaykumar's net income. She
submits that such allowances were purely personal to
Sanjaykumar and therefore, such amount, was required to be
excluded, when determining Sanjaykumar's net salary earnings.
She submits that upon such exclusion, the compensation
amount is required to be reduced substantially.
6] Mr. Mendon, learned counsel for the respondent-claimants,
submits that there was no case of contributory negligence made out
and even the deduction to the extent of 40% as made by the MACT is
excessive. He submits that even if it is assumed that Sanjaykumar was
not wearing Helmet at the time of accident, that by itself, can never be
regarded as contributory negligence. In any case, Mr. Mendon submits
that deduction of compensation to the extent of 40% is excessive and
there is absolutely no justification on the part of the appellant in
insisting upon further deductions to the extent of 10%.
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7] Mr. Mendon submits that the MACT, has awarded inadequate
compensation. No compensation has been awarded towards loss of
estate. The amount paid towards performance allowance by
Sanjaykumar's employer has been unjustifiably discarded. On the
aspect of diet allowance, Mr. Mendon submits that such allowance was
not meant for diet of Sanjaykumar alone, the same was benefited for
the entire family. Mr. Mendon submits that the respondents had
examined representative of AIR India, inter alia, as regards salary and
other allowances, which Sanjaykumar was drawing. Mr.Mendon has
placed deposition of this witness on record and point out that no
questions were posed to the witness on the aspect of diet allowance or
for that matter other allowances which the appellant now seeks to
exclude from computation. For all these reasons, Mr. Mendon submits
that this appeal may be dismissed with costs.
8] We have considered the rival submissions and also perused the
material on record.
9] On the aspect of contributory negligence, even if we accept that
Sanjaykumar was, to some extent, negligent in not wearing a Helmet
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whilst driving the motorcycle, to say that his contribution to the
accident was to the extent of 40% does appear to be on the higher
side. The MACT, was required to take note of the circumstance that
the insured vehicle, was a heavy motor vehicle, a Dumper. In a case of
this nature, greater duty of care was expected from the driver of the
insured vehicle. In this case, the driver of the insured vehicle has not
been examined, even though, the plea of contributory negligence has
been raised.
10] In New India Assurance Co. Ltd. vs. Smt. Sharda Devi and
ors. - 2012 (4) ALJ 266, the Division Bench of Allahabad High Court
has held that driving of a two wheeler without Helmet and driving it
with three pillion riders may constitute s breach of rule, but that by
itself, cannot be treated as composite or contributory negligence on
the part of such driver
11] In Jose vs. Niyas - 2017 ACJ 170, the Division Bench of Kerala
High Court, has also held that non wearing a Helmet by a driver of
two wheeler, though, an offence under the relevant provisions of
Motor Vehicle Act could be taken as a ground to fix contributory
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negligence on the part of the rider. In other words, the consequence
pursuant to the accident is not a circumstance to be weighed for
fixation of negligence in causing the accident.
12] As noted earlier, even the driver of the insured vehicle has not
been examined in the present case. The responsibility of the driver of
the Dumper, which is a much heavier vehicle than the motorcycle, was
greater in the facts and circumstances of the present case. In facts and
circumstances of the present case, contributory negligence on part of
Sanjaykmar could have been computed between 30 - 35% at highest.
For all these reasons, we are unable to accept the first contention of
Ms. Deepika Prabhala that contributory negligence, in the present
case, was required to be determined at 50%, insofar as Sanjaykumar is
concerned. Accordingly, the first ground in support of the present
appeal fails and is hereby rejected.
13] Insofar as the second ground is concerned, we agree with
Ms Deepika Prabhala that amounts of Rs.3600/- per month towards
Uniform allowances and Rs.3450/- per month towards Kit allowance
were required to be excluded from the income of Sanjaykumar, in
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order to determine his net income. On the aspect of diet allowance,
however, at least in this case, there is no material on record to hold
that such allowance was entirely personal to Sanjaykumar and not
intended for the benefit of his family members as well. The diet
allowance, in the present case, was Rs.25,000/- per month, i.e., even
more than the basic pay of Sanjaykumar.
14] Before the MACT, the appellant did not even raise any plea that
diet allowance was intended or paid for the sole benefit of
Sanjaykumar and not for the benefit of family members as well. On
behalf of the respondents-claimants, Mr.D.K. Gramopadhye, the
representative of Sanjaykumar's employer, AIR India Ltd was
examined. He has deposed that the salary certificate bearing signature
of N.P. Ghagre, Assistant Manager, Finance, Air India Limited,
represents the true and correct position about salary emoluments and
drawn by Sanjaykmar at the time of his unfortunate demise in the
accident. Significantly, no questions whatsoever were posed to Mr.
D.K. Gramopadhye, on the aspect of either diet allowance, or for that
matter uniform allowance and kit allowance. In case any challenge, as
now raised by the appellant, were to have been raised or if suitable
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questions were to have been posed to Mr.D.K. Gramopadhye, the
position, could have been clarified. In these circumstances, we are
unable to exclude the amount of Rs.25,000/- from out of income of
deceased Sanjaykumar, as reflected in the salary certificate, marked as
Exhibit-25-C. At the highest, deduction to the extent of Rs.5000/- can
be permitted on the basis that such deduction represents the
components, which deceased Sanjaykumar might have utilised for
sake of his personal diet. Again, such deduction, is quite unnecessary
and would result into duplication, since, from out of the net income as
determined, deduction to the extent of 25% (1/4 th), will have to be
made towards living and personal expenses of deceased Sanjaykumar.
Accordingly, there is no warrant for making any separate deduction on
this ground.
15] The material on record, clearly establishes that the deceased
Sanjaykumar in addition to drawing average net salary of Rs.62,000/-
per month was also receiving performance linked bonus of
Rs.58,627/50. From out of this amount, income of Rs.17,588/- was
deductible towards tax. Thus, the net income of Sanjaykumar came to
Rs.1,07,310/- per month.
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16] In this case, however, the MACT, accepted the appellant's
contention that performance linked bonus must not be regarded as
Sanjaykumar's income for computation of compensation, since, such
amount is paid subject to approval of the Board of Directors and
further the same depends upon the performance of the employee and
the profit made by the employer in any given year.
17] Whilst the MACT, may be right in not treating the entire amount
of performance linked bonus, as a part of regular income to
Sanjaykumar, we are of the opinion that at least some reasonable
credence was required to be given to the circumstance that
Sanjaykumar, was drawing such performance linked bonus, whilst in
the employment of AIR India Ltd. The benefits of such bonus, were
certainly not for Sanjaykumar alone, but the same were passed on to
the family members as well. On account of the accident and the
demise of Sanjaykumar, the family has certainly been deprived of such
amounts. Taking into consideration the variable nature of such
income, the MACT, may not have been justified in adding the entire
amount to the annual income. However, the MACT, was not justified
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in excluding such income in its entirety and proceeding on basis that
the same could never be taken into consideration for determining the
annual income of Sanjaykumar.
18] In National Insurance Co. Ltd. vs. Indira Srivastava and ors. -
(2008) 2 SCC 763, there is indication that bonus can be regarded as
payable is a part of salary component. This decision is also an
authority for exclusion of uniform allowance or kit allowance or
amounts paid towards taxes. However, on basis of such decision, we
are satisfied that the MACT was not right in completely excluding the
bonus component whilst determining the annual income of
Sanjaykumar.
19] Thus, we find that although there is substance in the contention
of Ms Deepika Prabhala that the amount of Rs.7000/- per month
towards uniform allowance and kit allowance was required to be
excluded for purpose of determining monthly income of Sanjaykumar,
we further find that such deduction is counter balanced by the
following factors:
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(a) As observed earlier, the deduction towards contributory
negligence, in the facts and circumstances of the present case,
should not have exceeded 30% to 35%;
(b) That the MACT should have given some credence to the
performance linked bonus, which Sanjaykumar was drawing,
whilst in service;
(c) That the MACT was required to make an award of at least
Rs.1,00,000/- towards loss of estate, which, the MACT has
failed to make in the impugned award;
(d) That the appellant-Insurance Company failed to deposit
the awarded amount within the statutory prescribed period
before the MACT. As a result, Yashodabai, Sanjaykumar's aged
mother, expired, without availing any compensation;
(e) The accident in which Sanjaykumar expired took place in
the year 2007. The litigation has continued for almost one
decade and the respondents-claimants, which includes minor
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children, are yet to receive any compensation; and
(f) The interest rate of 7% awarded by the MACT, in the facts
and circumstances of the present case is on a conservative basis.
20] We are of the opinion that the cumulative consideration of the
factors listed at (a) to (f) above are more than sufficient to offset any
reduction of compensation upon exclusion of uniform allowance and
kit allowance.
21] For all the aforesaid reasons, we are satisfied that the impugned
award warrants no interference.
22] However, we clarify that the compensation amount awarded to
Sanjaykumar's mother, Yashodabai be apportioned equally between
Rajeshere, Charitra and Shweta. Rest of the directions in the
impugned award are maintained.
23] By Civil Application No. 487 of 2017, the respondents -
claimants have applied for withdrawal of compensation amount
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deposited by the appellant - Insurance Company before the MACT.
Now that this appeal is being dismissed, the said civil application is
disposed of by permitting withdrawals consistent with the impugned
award as now modified.
24] Civil Application No. 3466 of 2016 for stay of the impugned
award, does not survive and the same is also disposed of.
25] The appeal and civil applications are disposed of, in the
aforesaid terms.
26] The statutory amount for filing of the appeal deposited before
this Court, is also allowed to be transferred to the Motor Accident
Claims Tribunal for disbursement of the same to the
respondents/claimants.
27] There shall be no order as to costs.
28] All concerned to act on the basis of authenticated copy of this
order.
(M. S. SONAK, J.) (SHANTANU S. KEMKAR, J.)
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