Bombay High Court
Smt.Ishwaribai Wd/O Bhagwandas ... vs Shri Kishorkumar S/O Kriplani And ... on 9 June, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.299 OF 2005
1. Smt. Ishwaribai wd/o. Bhagwandas Shambhuwani,
Aged about 51 years. Occu. Household.
2. Shri Shankarlal s/o. Bhagwandas Shambhuwani,
Aged about 29 years, Occu. Private Service.
3. Smt. Komal Gopal Wadhwani (nee Ku.
Anita d/o. Bhagwandas Shambhuwani),
Aged 26 years, Occ. Household.
4. Rakesh s/o. Bhagwandas Shambhuwani,
Aged about 25 years, Occu. Student.
5. Shri Sanjay s/o. Bhagwandas Shambhuwani,
Aged about 22 years, Occ. Student.
All r/o. Plot No.24, Khamla Colony, Nagpur. : APPELLANTS
...VERSUS...
1. Shri Kishorkumar s/o. Aratmal Kriplani,
R/o. Poddar Garden, Wardha.
2. The Branch Manager, National Insurance
Company Limited, Bhandara, through
the Divisional Manager, National
Insurance Company Limited, Firdos
Chambers, Panchsheel Chowk, Wardha Road,
Nagpur.
3. Shri Gopal Shukla, R/o. Station Road,
Rajnandgaon (M.P.)
4. The Branch Manager, Oriental Insurance
Company Limited, Rajnandgaon, through
the Divisional Manager, Oriental
Insurance Company Limited, Palm Road,
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Civil Lines, Nagpur. : RESPONDENTS
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Shri S.N. Kumar, Advocate for the Appellants.
None for Respondent Nos.1 and 2.
Smt. Anita Mategaonkar, Advocate for the Respondent No.4
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CORAM : S.B. SHUKRE, J.
th
DATE : 9
JUNE, 2017.
ORAL JUDGMENT :
1. This is an appeal preferred by the claimants seeking
enhancement of compensation awarded by the Motor Accident Claims
Tribunal, Nagpur in Claim Petition No.482/1997 by judgment and order
dated 1.4.2004.
2. The appellant No.1 is the widow of deceased Bhagwandas
and appellant Nos.2 to 5 are the children of deceased Bhagwandas.
Deceased Bhagwandas was travelling by a Maruti Car on 31.7.1996
along with some other persons. He had gone to Rajnandgaon, State of
Madhya Pradesh for attending the marriage and was returning to Nagpur
by Maruti Car bearing registration No.MP-04-J-4607. As his car came
near village Sundara on Rajnandgaon-Nagpur road one Matador bearing
registration No.MP-24-9581 approaching from the opposite direction
suddenly appeared before the Maruti car and there was a head on
collusion between the two vehicles. This was at about 1.15 p.m. of
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31.7.1996. The deceased sustained serious injuries and was admitted to
Bhilai Hospital for treatment of the injuries. However, he succumbed to
those injuries on 3rd August, 1996. Last rites were performed on the
deceased at Nagpur. The appellants being the legal heirs of the deceased
and having suffered incalculable loss owing to death of their bread
earner preferred a Claim Petition under Section 166 of the Motor
Vehicles Act, 1988 claiming compensation. On merits of the case, the
petition was allowed by the Tribunal and total compensation of
Rs.2,77,200/- inclusive of amount of no fault liability was awarded by
the Tribunal by its judgment and order on 1.4.2004. As the appellant
felt that several heads of non- pecuniary damages as well as salary of
Rs.3,000/- per month were not considered by the Tribunal, the
appellants preferred the present appeal.
3. I have heard Shri S.N. Kumar, learned counsel for the
appellant. Shri Paunikar, learned counsel for the respondent No.2 and
Smt. Anita Mategaonkar, learned counsel for respondent No.4. None has
appeared on behalf of respondent Nos.1 and 2. I have gone through the
record of the case including the impugned judgment and order.
4. Relying upon the law settled by the Hon'ble Apex Court in its
various judgments of the years 2009, 2013, 2015 and 2016 the learned
counsel for the appellant has contended that non pecuniary damages
ought to have been awarded at the rates fixed by the Hon'ble Apex Court
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in its various judgments. He also submits that there was no warrant for
the Tribunal to determine the monthly salary of the deceased to be at
Rs.2,500/-, when the evidence overwhelmingly showed that his monthly
salary was of Rs.3,000/- per month and when the Tribunal also accepted
the evidence relating to employment and monthly salary of the deceased
tendered by PW 1 and PW 2 as reliable. He further submits that the
interest on the compensation should have been granted at the rate of
9% p.a.
5. Learned counsel for respondent Nos.2 and 4 opposing the
claim made in this appeal submits that the facts and circumstances of the
cases relied upon by the appellants were quite different and, therefore,
same criteria could not be adopted for determining the compensation to
be paid to the appellants on the various non-pecuniary heads. They also
submit that the accident in the instant case took place in the year 1996
and whereas the Hon'ble Apex Court's Judgment came much later and,
therefore, the principles settled by the Hon'ble Apex Court would not be
of any application to the facts of the instant case. Shri Paunikar, learned
counsel for respondent No.2, in particular, submits that the issue of
payment of compensation on account of future prospects is still open to
debate as it has been referred to a larger Bench by the two judges Bench
of the Hon'ble Apex Court in the case of Shashikala and others vs
Gangalakshmamma and another, reported in 2015 ACJ 1239.
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6. The contentions of both sides would raise the following
points for determination :
i) Whether the income of the deceased has been
properly determined by the Tribunal ?
ii) Whether the rates of compensation given for
non-pecuniary heads by the Tribunal are
proper ?
iii) Whether the amount of compensation deserves
to be enhanced ?
As to Point No.1. :
7. On going through the evidence available on record and also
the impugned judgment and order, I find that the evidence of PW 1 as
well as PW 2 on this count is reliable. There is hardly anything in their
evidence which would create any doubt about the status of the deceased
as Manager of PW 2 or his monthly salary being of Rs.3,000/-. Learned
counsel Smt. Anita Mategaonkar, has invited my attention to one
admission given by PW 2 during the course of his cross-examination.
According to her, this admission is sufficient to find that the appellant
did not adduce any evidence to establish the fact that the deceased
Bhagwandas was working as a Manager and PW 2 was his employer.
With due respect, I would say, this does not appear to be the case if one
reads the evidence of PW 2 in its entirety. Of course, PW 2 has admitted
that he did not have any documentary evidence to demonstrate that
deceased Bhagwandas, at the relevant time, was serving in his shop as a
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Manager. But, I must say there is no law which mandates that in order
to establish the relationship of employer and employee, there has to be
some written agreement or some documentary evidence creating the
same. Such a relationship can also come into being on the basis of oral
engagement of the parties. Then, a categorical finding has been
recorded in this regard by the Tribunal in the impugned judgment and
order. The finding is that the evidence of PW 2 about the wages of
deceased Bhagwandas is reliable and that he was working as a Manager
in the shop of PW 2. This finding about deceased Bhagwandas serving as
a Manager in the shop of PW 2 as well as other finding regarding his
monthly salary of Rs.3,000/- per month have not been challenged by the
respondent and thus have attained finality. Therefore, this Court would
like to give effect to these findings and confirm the same. Unfortunately,
however, the Tribunal after having recorded such clear findings,
suddenly took a backward turn and on some surmises found that the
wages of deceased Bhagwandas could be taken to be at Rs.2,000/- per
month although there was no basis whatsoever for making such a
determination. It appears that the Tribunal has only imagined without
there being any foundation, that the deceased Bhagwandas might be
getting salary to the extent of Rs.2,000/- per month, albeit erroneously.
After having rendered a finding in a clear manner about quantum of
salary of the deceased Bhagwandas, the Tribunal ought not to have
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undertaken such an exercise of giving a somewhat contrary finding. The
contrary finding so recorded by the Tribunal is, therefore, quashed and
set aside and the earlier finding that the deceased was getting monthly
salary of Rs.3,000/- is upheld and confirmed. As stated earlier, this is
also borne out in a sufficient manner from the evidence given by PW 1
and PW 2. The point No.1 is answered accordingly.
As to Point Nos.2 and 3 :
8. For claiming higher compensation on account of
non-pecuniary heads, learned counsel for the appellant has relied upon
the cases of :
(i) Rajesh and others vs. Rajbir Singh and others,
reported in 2013 ACJ 1403,
(ii) Kalpanaraj and others vs. Tamil Nadu State Transport
Corporation, reported in (2015) 2 SCC 764,
(iiii) Neeta w/o. Kallappa Kadolkar and others vs.
Divisional Manager, Maharashtra State Road Transport Corporation,
Kolhapur, reported in (2015) 3 SCC 590,
(iv) Jiju Kuruvila and others vs. Kunjujamma Mohan and
others, reported in (2013) 9 SCC 166,
(v) Chanderi Devi and another vs. Jaspal Singh and
others, reported in (2015) 11 SCC 703,
(vi) Sandhya Rani Debbarma and others vs. The National
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Insurance Company Ltd., and another, reported in 2016 (8) SCALE
820.
9. For ascertaining the compensation on account of future
prospects and for making necessary deductions on account of personal
expenses and also application of appropriate multiplier, learned counsel
has further relied upon the case of Sarla Varma vs. Delhi Transport
Corporation, reported in (2009) 6 SCC 121. The principles set out in all
these cases have by now become a settled law, with an exception to what
is observed in the case of Shashikala and others (supra). The
dis-agreement shown in the case of Shashikala and others by the two
Judges Bench of the Hon'ble Apex Court would make no difference to the
facts of the case for the reason that the disagreement in Shashikala was
only about the addition towards future prospects in case of self employed
or persons on fixed wages to be made to the compensation payable on
account of dependency. In the instant case, the deceased Bhagwandas
was neither a self employed person nor a fixed waged person and that he
was getting monthly salary of Rs.3,000/- from his employer, PW 2.
Therefore, the principles settled in the cases relied upon by the learned
counsel for the appellants and referred to above, can be conveniently
applied to the facts of the case and by applying the same, following
position would emerge :
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Sr. Heads Calculation
No.
i. Annual Income (Rs.3,000 x 12) Rs.36,000/-
ii. 30% of (i) above to be added as future Rs.36,000/-
prospects + Rs.10,800/-
----------------
= Rs.46,800/-
iii. 1/4th of (ii) deducted as personal expenses Rs.46,800/-
of the deceased. - Rs.11,700/-
----------------
= Rs.35,100/-
iv. Compensation after multiplier of 13 is Rs.35,100/-
-----------------
= Rs.4,56,300/-
v. Loss of consortium for widow Rs.1,00,000/-
vi. Loss of care and guidance for two minor Rs.2,00,000/-
children [ @ Rs.1/- lakh per child.]
vii. Loss of estate Rs.1,00,000/-
viii. Loss of expectation of life of deceased Rs.1,00,000/-
ix. Funeral expenses and cost of litigation Rs. 35,000/-
Total Compensation Rs.11,09,200/-
Rs. 2,77,200/-
Less : amount awarded
---------------------------
Total enhancement in compensation Rs. 8,32,000/-
==========
10. Thus, I find that the appellants are entitled to receive total
enhanced compensation of Rs.8,32,000/- which amount shall be payable
together with interest at the rate of 7% p.a. from the date of petition till
its realization. The enhanced compensation so granted shall be
apportioned on 50% basis between respondent Nos.1 and 2 on the one
hand and respondent Nos.3 and 4 on the other hand meaning thereby
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respondent Nos.1 and 2 shall be jointly and severally liable to pay 50% of
the total enhanced compensation amount together with interest at the
rate of 7% p.a. and the respondent No.3 and 4 shall be liable to jointly
and severally to pay remaining 50% by enhanced compensation amount
together with interest at the rate of 7% p.a., as directed by this Court.
The enhanced compensation in the aforesaid terms by paid within 3
months from the date of order. The point Nos.2 and 3 are answered
accordingly.
11. The appeal is partly allowed in above terms and the
impugned judgment and order stands modified accordingly. No costs.
12. The respondents are permitted to deposit the amount of
compensation in this Court.
JUDGE
okMksns
