Bombay High Court

Depot Manager, Maharashtra State ... vs Sujata Sukhlal Patil And Others on 13 November, 2017

Bench: S.B. Shukre

                                                  1




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR

First Appeal No. 440  of 2014 

Appellant :              Depot Manager, Maharashtra State Road 
                         Transport Corporation, S. T. Stand, Wardha

                         Versus

Respondents:             1)   Sujata Sukhlal Patil, aged about 30
                         years, Occ:  Household

                         2) Akansha Sukhlal Patil, aged about 10 years,
                         Student

                         3) Aryan Sukhlal Patil, aged 3 years, 

                         Respondents no. 2 and 3 being minor through
                         their natural guardian-mother Smt Sujata 
                         Sukhlal  Patil

                         4) Annapurna Badshah Patil, aged about 60
                         years, Occ: Nil

                         5) Badshah Zaamaji Patil, aged about 65 years,
                         Occ: nil, 

                         All residents of Talegaon, Tahsil Ashti, District
                         Wardha

                         6) Anil Laxmanrao Kulsange, adult, Occ: Driver,
                         Pulgaon Depot, C/o Vaidya House, Behind Shri
                         Pramod Bombnate House, Shivaji Colony, Pulgaon,
                         Tahsil Devli, Dist. Wardha

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Ms S. D. Rangari, Advocate for appellant Shri A. R. Rishi, Adcvocate for respondents no. 1 to 5 Shri A. M. Patankar, Advocate for respondent no. 6

Coram : S. B. Shukre, J

Dated : 7th November 2017

Oral Judgment

1. This appeal questions legality and correctness of the

judgment and order dated 31st December 2013.

2. Respondents no. 1 to 5 are the original claimants. They are

widow, children and parents of deceased Sukhlal Badshah Patil who died

at the age of 34 years in a road accident involving a motor-cycle and ST

Bus belonging to the appellant and driven at the relevant time by

respondent no. 6. The accident occurred on 3.2.2012 on Arvi-Talegaon

Road within the limits of city of Arvi. It was in the nature of head-on

collusion between motor-cycle rode pillion by the deceased and ST Bus

bearing registration number MH-06/S-7924. Deceased Sukhlal received

fatal injuries and died on the spot.

3. The claim petition filed by respondents no. 1 to 5 was partly

allowed by the judgment and order impugned herein. Not being satisfied

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

4. I have heard learned counsel for the parties at length. I have

gone through record of the case including impugned judgment and order.

Now, the following points arise for my determination:

(i) Whether the claimants prove that the accident occurred due

to rash and negligent driving of the offending ST Bus ?

(ii) Whether the compensation granted by the Tribunal is

just and proper ?

5. In the present case, it is seen that respondnt no. 1, one of the

original claimants, only examined herself and there was no other witness

examined either by the original claimants or the appellant or respondent

no. 6. Respondent no. 1 was not an eye witness to the accident.

Therefore, the Tribunal relied upon the First Information Report and spot

panchanama and reached to a conclusion that the accident occurred only

due to rash and negligent driving of the bus in question driven by

respondent no. 6. The Tribunal further found support from non-

examination of respondent no. 6 as witness by the appellant. First

Information Report shows that the offence for rash and negligent driving

was registred against respondent no. 6. The spot panchanama describes

situation of the bus immediately after the accident which shows that

there was every possibility that the accident occurred due to negligence

only on the part of respondent no. 6 in driving the bus. This is further

supported by the inaction on the part of appellant to examine respondent

no. 6 who was eye witness to the accident, he being driver of the bus at

the relevant time. He was the best witness to establish the facts before

the Court, but the opportunity was not seized at by the appellant. No

explanation has been given by the appellant for not examining respondent

no. 6/driver as its witness. Therefore, adverse inference would have to

be drawn to the effect that responcent no. 6-driver was not examined as a

witness, because he knew that he was completely at fault to cause the

accident. This has been rightly concluded by the Tribunal. Therefore, I

am of the view that respondents no. 1 to 5 succeeded in proving that the

accident occurred solely due to rash and negligent driving by respondent

no. 6. Point no. (i) is answered accordingly.

6. Learned counsel for the appellant contends that in the

present case, there being no evidence adduced by the claimants to prove

the monthly income of the deceased, it should have been determined

only on notional basis, which should have been at Rs. 1280/- per month.

Learned counsel for respondents no. 1 to 5 submits that it is not in dispute

that deceased was the owner of six-sitter auto rickshaw and, therefore,

even if no documents or income-tax returns are placed on record by the

claimants, income of the deceased should not be calculated only on

notional basis, rather it would have to be calculated on reasonable

probabilities. He submits that deceased had a large family drawing

support from him. There were five members in his family in addition to

deceased himself and, therefore, the income determination made by the

Tribunal by approximation to be at Rs. 5000/- per month cannot be

faulted with. Learned counsel for respondent no. 6 supports the

arguments of learned counsel for the appellant.

7. It is true that in the present case, there is no independent

evidence adduced by respondents no. 1 to 5 to prove the income of the

deceased. But, the fact that the deceased was owner-cum-driver of 6-

sitter auto-rickshaw is established on record. It is proved by respondents

no. 1 to 5 that deceased himself was plying the vehicle. The deceased

was supporting, apart from himself, in all five members in his family. For

maintenance of family of six person, a substantial sum of money is

required and in the year 2012 when the accident occurred, this sum of

money could have been in the range of Rs. 5000-Rs. 10,000 per month.

The lowest amount in this range has been taken by the Tribunal to be the

average monthly income of the deceased. I do not see any irrationality,

arbitrariness or illegality in making of such determination by the Tribunal.

On the contrary, it must be realised that to say that an amount of Rs.

1280/- would have been sufficient for the family of six members to

maintain in the year 2012, is an irrationality. Therefore, the argument of

learned counsel for the appellant made in this behalf is rejected. The

Tribunal has rightly determined the monthly income of the deceased to be

at Rs. 5000/-.

8. Learned counsel for the appellant further submits that auto-

rickshaw is a permanent asset and it remains even after departure of the

deceased from the material world and as such, this asset can always be

managed by the legal heirs of the deceased. She further submits that in

such a case at the most somebody would be required to ply the auto-

rickshaw by paying him the monthly salary. Therefore, it would be a case

wherein the family of the deceased has not suffered complete loss of

income on account of untimely death of the deceased and as such, she

submits, the monthly income of the deceased be appropriately fixed.

Relying upon the judgment of the Hon'ble Supreme Court dated 10 th

February 2012 rendered in Civil Appeal No. 1987 of 2012 in the case of

New India Assurance Co. Ltd. v. Yogesh Devi & ors, learned counsel

contends that income from the 6-sitter auto rickshaw would still continue

to accrue to the benefit of the family. In the said case, the deceased had

owned three mini buses apart from agricultural land and he was driver on

one of the three mini buses. The Apex Court held that not only the

agricultural land (as was held by the High Court),being an asset but also

the three mini buses would be assets as they would continue to be with

the family and fetch income.

9. In the present case, the facts are quite different. The

deceased owned only one auto-rickshaw which he himself plied. The

deceased admittedly did not have additional business which was

managed by him with the help of some other person. There is no

evidence to show that after the departure of the deceased from this world,

the asset in the nature of auto-rickshaw continued to be with the

claimants. Then, there is no evidence available on record showing that

regular plying of the auto-rickshaw by the family with the help of a hired

driver was continued after the death of its owner and, therefore, , it

would not be possible to deduct salary of the manager or driver of the

auto-rickshaw hired by family members of the deceased from the monthly

income, there being none. Then, the income of the deceased determined

by approximation by the Tribunal is also of lowest possible figure leaving

no scope for making further deductions from it. All these facts taken

together would show that they are distinct in nature and different from

the facts of the case of Yogesh Devi (supra) and, therefore, the ratio laid

down in that case would have no application to the case in hand.

9. In the recent judgment in SLP (C) No. 25590 of 2014

(National Insurance Company Limited v. Pranay Sethi & ors) rendered on

31st October 2017, the Hon'ble Supreme Court has set at rest the

controversy regarding consideration of future prospects and so also the

selection of multiplier. In the present case, the deceased was self-

employed and was below the age of 40 years and, therefore, as per the

aforesaid judgment of Hon'ble Apex Court, 40% of the established

income should be added on account of future prospects. Additional

compensation on account of loss of estate; loss of consortium and funeral

expenses at Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively as

per the above judgment would have to be given. Appropriate multiplier,

considering the age of 34 years of the deceased as per his driving licence,

as held in the case of Sarla Verma (Smt) & ors v. Delhi Transport

Corporation & anr reported in (2009) 6 SCC 121, would be "16". Thus

calculated, the compensation that would be payable to the respondents

no. 1 to 5 would be as follows :

(a)      Monthly income including future
         prospects                                          ..       Rs.  7,000/-

(b)      Annual income (Rs. 7000 x 12)                      ..       Rs. 84,000/-

(c)      Less: 1/4th deduction on account of
         personal expenses                                  ..       Rs. 21,000/-

(d)      Loss of dependency-  (Rs. 84,000                   ..       Rs. 63,000/-
         minus Rs. 21,000/-)

(e)      Compensation payable by applying                   ..       Rs. 10,08,000/-
         multiplier of "16" (Rs. 63,000 x 16)

(f)      Compensation payable on account of loss            ..       Rs. 70,000/- 
         of estate; loss of consortium and funeral
         expenses (Rs. 15,000/-, Rs. 40,000/- and
         Rs. 15,000/- respectively)

         Total compensation payable                         ..       Rs. 10,78,000/-

10. In the result, respondents no. 1 to 5 would be entitled to

receive compensation of Rs. 10,78,000/- inclusive of no fault liability

together with interest at the rate of 7.5% per annum from the date of

petition till realization and shall be jointly and severally paid by appellant

and respondent no. 6. Point is answered accordingly.

11. In the result, Impugned judgment and order stand modified

in the above terms. The claimants are permitted to withdraw the amount

already deposited in this Court and if any compensation amount has

remained to be deposited by the appellant in terms of this order, the same

may be done within two months from the date of order and after such

deposit being made, the claimants will be permitted to withdraw the same

except for the amount of Rs. 4 lacs which would be invested in fixed