Bombay High Court
Smt. Draupadibai Wd/O ... vs Rakeshkumar S/O Hiralal Bajaj & 1 ... on 5 October, 2017
Bench: S.B. Shukre
J-639.08.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.639 OF 2008
1. Drupadibai wd/o. Jugalkishore Bajaj,
Aged about 55 years,
Occupation : Household.
2. Santosh s/o. Jugalkishore Bajaj,
Aged about 37 years,
Occupation : Business.
3. Anil s/o. Jugalkishore Bajaj,
Aged about 35 years,
Occupation : Business.
4. Vijay s/o. Jugalkishore Bajaj,
Aged about 30 years,
Occupation : Business.
5. Sunil s/o. Jugalkishore Bajaj,
Aged about 27 years,
Occupation : Business.
All Resident of Shegaon,
Tq. Shegaon, Distt. Buldhana. : APPELLANTS
...VERSUS...
1. Rajeshkumar s/o. Hiralal Bajaj,
Aged 35 years, Occupation : Business,
Resident of Shegaon,
Tq. Shegaon, Distt. Buldhana.
2. Oriental Insurance Company Ltd.,
Orient House, P.B. No.7037,
A, 25/27, Asif Ali Road,
New Delhi-110002. : RESPONDENTS
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Shri A. Shelat, Advocate for the Appellants
None for the Respondents.
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J-639.08.odt 2/8
CORAM : S.B. SHUKRE, J.
th
DATE : 5
OCTOBER, 2017.
ORAL JUDGMENT :
1. This is an appeal which questions the legality and correctness
of the judgment and order dated 18 th February, 2005, rendered in Motor
Accident Claim Petition No.109/1991, by Motor Accident Claims
Tribunal, Buldhana insofar as the quantum of compensation is
concerned.
2. The appellant No.1 is the widow of deceased Jugalkishore
and appellant Nos.2 to 5 are the children of deceased Jugalkishore, who
lost his life at the age of 52 years in a road accident involving a mini
truck bearing registration No.MH-28/9739. The accident occurred in
between 4.00 a.m. and 5.00 a.m. of 28.4.1991 on Khamgaon to Chikhali
Road, near village Ganeshpur, Tq. Khamgaon, District Buldhana. At that
time, deceased Jugalkishore was travelling by the offending vehicle,
which, being driven rashly and negligently by its driver, dashed against
trunk of a tree by the side of the road. Deceased Jugalkishore sustained
serious head injury, to which he succumbed about a day later, while
undergoing medical treatment. The loss of Jugalkishore was unbearable
to the appellants and that they were also dependent upon the income of
the deceased at the time of his death. Therefore, they filed a claim
petition under Section 166 of the Motor Vehicles Act (for short, "MV
Act") for claiming compensation from the owner and the insurer of the
offending vehicle. The respondent No.1 and respondent No.2 respectively
J-639.08.odt 3/8
were the owner and insurer of the offending vehicle. The claim petition
was not contested by the respondent No.1 and it proceeded exparte
against him while it was contested by the respondent No.2. On merits of
the case, the claim petition was partly allowed by the Motor Accident
Claims Tribunal granting compensation of Rs.1,06,500/- together with
interest at the rate of 6% p.a. from the date of application till actual
realization by the impugned judgment and order. Not being satisfied
with the quantum of compensation, the appellants are before this Court
in the present appeal.
3. I have heard Shri A. Shelat, learned counsel for the
appellants. None appears for the respondents though duly served. I have
gone through the record of the case including the impugned judgment
and order.
4. Now, the only point which arises for my determination is :
Whether the compensation awarded by the Tribunal is
just and proper ?
5. So far as the findings recorded by the Tribunal on the
question of fault liability, I must say, they have attained finality as
neither the respondent No.1 nor the respondent No.2 have challenged
them, at least as it appears from the record of the present case.
Therefore, there is no need for this Court to deal with that aspect of the
case.
6. Now, coming to the question of adequacy or otherwise of the
compensation awarded by the Tribunal, I find, as rightly submitted by
J-639.08.odt 4/8
the learned counsel for the appellant, evidence of appellant No.3 Anil, is
important and when it is considered with the income tax challans
produced on record through his evidence by the appellant vide Exh.-63 to
Exh.-71, the conclusion that can be reasonably drawn in this case is that
deceased Jugalkishore was an income tax payee in his individual
capacity. The Tribunal, however, has recorded a wrong finding, not
based upon evidence available on record that the income tax challans do
not show that the deceased was paying income tax in his individual
capacity. There may be an admission given by the appellant No.3 Anil, in
his evidence vide Exh.-53 that the challans relating to the years 1985-86
and 1987-88 pertain to partnership firm M/s. Mohanlal Shankarlal Bajaj,
but the admission is not supported by the documentary evidence, which
shows that these challans, by which advance income tax was paid by the
deceased, were actually filed in his individual capacity. Such admission,
therefore, deserves to be ignored and it is ignored accordingly.
7. Once it is found that till before untimely death, deceased
Jugalkishore was an income tax payee in his individual capacity, it would
have to be further found by relying upon the first schedule, Section 2, to
the Finance Act 1990, an extract of which has been taken on record
today and marked 'X', on being produced by the learned counsel for the
appellant, that in the year 1989 limit for exemption of income tax was
upto Rs.18,000/- and liability to pay income tax was there when the
income exceeded Rs.18,000/- p.a. The income tax liability, as per the
Finance Act, 1990, for the slab exceeding Rs.18,000/- and below
J-639.08.odt 5/8
Rs.25,000/- was of 20% of the amount by which the total income
exceeded Rs.18,000/-. So, this Court would have to consider as relevant,
the first slab of the income tax provided under the Finance Act, 1990 and
for the purpose of determining the annual income of the deceased, the
starting point of the first slab would be the basis for calculating the
amount of compensation payable to the appellant in a just and
reasonable manner. So, I am of the view that instead of taking notional
income of Rs.15,000/- p.a. of the deceased Jugalkishore, the income of
Rs.18,000/- p.a. should have been taken as a starting point in the instant
case. Taking this income to be the basis for calculating the fair amount
of compensation payable to the appellants, now it would be appropriate to
embark upon the actual exercise of determination of the just compensation.
8. Now, it is settled law that even for those persons falling in
the fixed income category, there is a scope for making addition to their
annual income by providing for future prospect. In the present case,
deceased Jugalkishore was 52 years of age at the time of his death. For
those persons between the age group of 50 and 60, 15% of the annual
income is required to be added to the amount of annual income as per
the law laid down by the Hon'ble Apex Court in the case of Rajesh and
others vs. Rajbir Singh and others, reported in 2013 ACJ 1403. This
percentage of the annual income of the deceased, therefore, would have
to be added to the annual income of Rs.18,000/- of the deceased.
9. There were about 7 dependents upon the deceased at the
time of his death. Therefore, as per the law laid down by the Hon'ble
J-639.08.odt 6/8
Apex Court in the case of Sarla Verma vs. Delhi Transport
Corporation, reported in 2009 ACJ 1298 (SC), ¼ th deduction from the
total annual income of the deceased would have to be made so as to
determine the actual loss of annual dependency. As regards the selection
of multiplier, I must say, the ratio of case of Sarla Verma (supra) would
be applicable here.
10. Of course, learned counsel for the appellants would submit
that as there has been a history of longevity in the family of the deceased
and most of the members of the family of the deceased would live upto
the age of 90 to 95 years, higher multiplier be applied here. I find myself
in disagreement with the learned counsel for the appellants in this
regard. The reason being that the concept of multiplier has been
introduced to capitalize on the annual income of the person in order to
find out the total income the deceased would have earned reasonably
during his life on the one hand and to have uniformity and certainty in
determination of the compensation payable in a just and reasonable
manner on the other. So, it is obvious that the capitalization of the
income of the deceased itself is dependent upon the productive life of
that person. That is the reason why, the Hon'ble Apex Court in its several
judgments, has consistently taken a view that as the person advances in
his age, there is a proportionate decline in his income and therefore the
Hon'ble Apex Court in Sarla Verma (supra), has prepared a chart of
multipliers to be adopted in relation to different age groups of the
deceased. This chart shows a declining trend matching with
J-639.08.odt 7/8
advancement in the age of a person. So, the multiplier of 11, considering
the age of 52 years of the deceased in the present case, would be
appropriate and it has also been rightly applied by the Tribunal. This
multiplier would now have to be used in order to determine the total loss
of dependency of the appellants. In addition to the total loss of
dependency of the appellants, the appellants would also be entitled to
receive compensation for the non-pecuniary heads such as loss of
consortium, loss of dependency, loss of estate and funeral expenses, as
held in the cases of Kalpanaraj vs. T.N. State Transport Corporation,
reported in (2015)2 SCC 764 and Asha Verman and others vs.
Maharaj Singh and others, reported in (2015)11 SCC 389.
11. Thus calculated, the total amount of compensation which the
appellants would be entitled to receive in this case, jointly and severally
from the respondent Nos.1 and 2, would be as under :
Annual income Rs.18,000/-
+ 15% addition for future prospect Rs. 2,700/-
----------------
Total Rs.20,700/-
(-) ¼ th deduction to be made Rs. 5,175/-
for personal expenses.
-----------------
Annual loss of dependency Rs.15,525/-
Appropriate multiplier. X 11
----------------
Total loss of dependency Rs.1,70,775/-
+ Loss of consortium for appellant No.1. Rs.1,00,000/-
+ Loss of dependency for appellant
Nos.2 to 5 at the rate of Rs.1,00,000/-
per child. Rs.4,00,000/-
+ Loss of estate for all appellants Rs.1,00,000/-
+ Funeral expenses Rs. 5,000/-
------------------
Total compensation payable to all the Rs.7,75,775/-
appellants together with appropriate interest. =======
J-639.08.odt 8/8
12. In view of above, I find that the appellants are entitled to
receive the compensation of Rs.7,78,250/- and are also entitled to
receive interest on this amount at the rate of 9% p.a. from the date of
petition till actual realization. The rate of 9% , I may clarify, has been
granted by taking into consideration the observations of the Hon'ble Apex
Court in the case of Asha Verman and others (supra) and also the
prevailing rates of interest on deposits in the year 1991, of which judicial
notice has been taken.
13. Compensation so granted to appellants shall be payable by
respondent Nos.1 and 2 joint and severally.
14. The appeal is partly allowed and the impugned judgment and
order stand modified in the above terms.
15. The parties to bear their own costs.
JUDGE
okMksns
