Bombay High Court

Nisha Naresh Gajre And Ors vs Subhash Laxman More And Anr on 19 January, 2018

Bench: K. K. Sonawane

                                        {1}
                                                                     FA 3633.16.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            FIRST APPEAL NO. 3633 OF 2016


1] Nisha w/o. Naresh Gajre,
   Age 26 years, Occ. Household,
   R/o. Gangaram Nagar, Deogaon Road,
   Lasur Station, Tq. Gangapur, Dist. Aurangabad.


2] Naina D/o. Naresh Gajre,
   Age 07 years, Occ. Nil.
   R/o. As above.

3] Nilesh s/o. Naresh Gajre,
   Age 07 years, Occ. Nil,
   R/o. As above.

                                                      .. APPELLANTS.
                                                      [Ori. Petitioners]
             VERUS

1] Subhash S/o. Laxman More,
    Age major, Occ. Driver,
    R/o. Khambala, Tq. Vaijapur,
    Dist. Aurangabad.
   [Driver of MSRTC Bus No.
    MH-40-N-9645].

2] Maharashtra State Regional Transport
    {MSRTC} Corporation,
    through Divisional Controller,
    Maljipure, Opposite Employment Office,
    Bus Stand to Railway Station Road,
    At Aurangabad.
   [Owner of MSRTC Bus No. MH04--N-9645)

                                                      ... RESPONDENTS.
                                                      {Ori. Respodnents]

Mr. R.V. Gore, Advocate for the appellants
Mrs. Ranjana D. Reddy, Advocate for respondent No.2.




 ::: Uploaded on - 20/01/2018                    ::: Downloaded on - 21/01/2018 01:57:27 :::
                                         {2}
                                                                        FA 3633.16.odt

                                     CORAM : K.K. SONAWANE, J.

RESERVED ON : 5th January,2018 PRONOUNCED ON : 19th January, 2018.

JUDGMENT : ( Per : K.K. Sonawane, J.)

1] Heard. Admit. By consent of parties, taken up for final

hearing at admission stage. The point of controversy in this appeal lies

within the short compass relating to computation of quantum of

compensation amount determined by the Tribunal in the application filed on

behalf of appellant/original claimant under Section 166 of the Motor Vehicles

Act, 1988 (hereinafter referred to as "Act 1988").

2] The deceased Naresh Gajre r/o. Lasur Station, Taluka Gangapur,

Dist. Aurangabad was the husband of appellant No.1 and father of the

appellant Nos. 2 and 3 - original claimants. On the fateful day of the

accident i.e. 13.10.2013, the deceased Naresh at about 10.45 a.m. was

proceeding on foot from the road leading towards Deogaon town unaware of

his tragic end in the vehicular accident. Suddenly, the vehicle ST Bus

bearing Registration No. MH-40/N-9645 arrived speedily from the backside

and gave dash to the deceased Naresh. The driver of the ST bus was very

negligent and rash while driving the vehicle. He did not pay attention to the

pedestrians and traffic on the road. In the result, the deceased Naresh

received fatal injuries. He was immediately escorted to the Government

Hospital for medical treatment. The concerned Doctor made endeavour to

resuscitate the victim Naresh but all efforts did not yield result.

{3} FA 3633.16.odt

3] Unfortunately, deceased Naresh succumbed to the inujuries

caused to him in the vehicular accident. The information about the accident

was passed on to the concerned police. The police of Sillegaon police

station registered the FIR bearing Crime No. I-142/2013 against the driver of

the ST Bus involved in the accident. The police personnel arrived at the spot

and drawn panchanama of scene of occurrence. Police also dealt with the

mortal remains of deceased Naresh, drawn inquest panchanama. The dead

body of deceased Naresh was referred for autopsy to ascertain the exact

cause of death. The medical experts conducted post mortem on the dead

body of deceased Naresh and opined that the deceased died due to injuries

sustained to him in vehicular accident. The family members of deceased

Naresh blamed the driver of ST bus for untimely death of earning hand of

their family. Therefore, the widow and children of deceased Naresh rushed

to the Motor Accidents Claim Tribunal and filed application for compensation

under Section 166 of the Act 1988.

4] Pursuant to the claim notice, respondent MSRTC appeared in

the proceeding before the Tribunal and denied the liability. The Tribunal

considered the entire evidence adduced on record and partly allowed the

petition. The Tribunal directed respondent MSRTC to pay compensation of Rs.

3,60,000/- with interest to the claimants on account of accidental death of

their family member - deceased Naresh. Despite the same, claimants did not

satisfy with the quantum of compensation amount, therefore, by invoking

remedy under Section 173 of the Act,1988 the claimants/appellants

preferred the present appeal.

{4} FA 3633.16.odt

5] The learned counsel for appellants vehemently submitted that

the deceased Naresh was 35 years old person at the time of alleged

accident. The police record also reflects 35 years age of the deceased

Naresh. But, the Tribunal erroneously considered his age more than 40 years

and applied the multiplier of 14 in this case. According to learned counsel,

the deceased was 35 years old person at the time of accident. Therefore,

the multiplier of 16 is essential to be applied for calculation of compensation

amount. The learned counsel for appellants further harped on the

circumstances that the trial court did not consider the amount of future

prospects of self-employed deceased while determination of compensation

amount. The learned counsel drawn attention towards the error occurred in

the findings expressed by the Tribunal while ascertaining the income of

deceased Naresh. He asserted that deceased Naresh was the skilled worker

doing labour work as a painter. He was earning Rs. 9,000/- p.m. Therefore,

his income atleast @ Rs.5,000/- was required to be considered by the

Tribunal. The notional income @ Rs. 3,000/- p.m. determined by the Tribunal

is erroneous, illegal and without any basis. The learned counsel further

assailed that the Tribunal has awarded meager compensation amount

towards the conventional head, comprising the amount towards funeral

expenses, loss of estate, loss of consortium etc. In support of his claim,

learned counsel kept reliance on the judicial pronouncements of Honourable

Apex Court in the case of Sarla Verma (Smt ) Vs. Delhi Transport

Corporation and another, (2009)6 SCC 121, and National Insurance

Company Ltd. vs. Pranay Sethi and others 2017 SCC Online SC 1270.

{5} FA 3633.16.odt

6] In this appeal, the appellants are only concerned with the

compensation amount quantified by the Tribunal. The first objection raised

on behalf of appellants is in regard to income of deceased Naresh calculated

by the Tribunal. The claimant Smt. Nisha wd/o. Naresh Gajre stepped into

the witness box and deposed before the Tribunal that her husband deceased

Naresh was a skilled worker. He was doing the labour work as a painter. His

income from the labour work was Rs. 9,000/- p.m. but due to sudden demise

of the bread-winner, there was loss to the family. It is to be noted that

except the bare version of claimant Smt. Nisha wd/o. Naresh, there were no

corroborative evidence on record to buttress her version. It is true that the

claim in the Motor Vehicle Act is a summary proceeding in nature and the

evidence should not be scrutinized in a manner as is required in a civil or

criminal cases. In civil cases, the rule is preponderance of probabilities and

in criminal cases, proof beyond reasonable doubt is imperative. But, all

these niceties are not essential in the matter of motor accident claim as law

contemplates it as summary enquiry into the matter. Therefore, if there is

some persuasive evidence available on record to arrive at some decision,

itself is sufficient to determine just and reasonable compensation in the

claim petition.

7] In the matter in hand, as referred supra, except the bare

version of claimant Smt. Nisha no other sort of persuasive circumstances are

available on record to conclude that the deceased Naresh was earning more

{6} FA 3633.16.odt

than Rs.3000/- p.m. No doubt, the deceased Naresh was eking livelihood by

doing skilled job as a painter. But, in absence of convincing evidence, it

would be unjust and improper to draw inference that the earning of

deceased Naresh was more than Rs. 3000/- p.m. In contrast, it would be

justifiable to visualize that the notional income of deceased Naresh was Rs.

3000/- p.m. In such circumstances, there is no error detected in the findings

expressed by the Tribunal on this material aspect of the appeal.

8] Learned counsel for appellant further assailed that the Tribunal

ascertained the age of deceased Naresh more than 40 years of age for the

purpose of calculation of compensation amount. The conclusions of the

Tribunal in regard to more than 40 years age of deceased Naresh, was totally

based on surmises and conjectures. In view of documents of police record,

the deceased Naresh was 35 years old person at the time of accident. The

submissions advanced on behalf of appellants seems to be sustainable and

appreciable one. The entire documents produced on record comprising FIR,

spot panchanama, Post Mortem report etc. candidly reflects that the

deceased was 35 years old person at the time of accident. All these

documents were prepared at the earliest immediately after occurrence of

the alleged vehicular accident. The concerned public servants are the

authors of these documents, wherein, it has been categorically mentioned

that the deceased Naresh was 35 years old person. In such peculiar

circumstances, it is preposterous to cast doubt on the integrity of all these

public servants - author of the documents. Therefore, it is fallacious to

{7} FA 3633.16.odt

appreciate that the age of deceased at the time of accident was more than

40 years. The conclusion of the Tribunal that " at the time of accident his

age is considered to be more than 40 years and, if age is above 40 years, the

appropriate multiplier would be 14" appears to be rest on figment of

imagination. The public documents of police record manifestly indicate that

the deceased was 35 years old person at the time of accident. After

considering the reasonable margin, it can be held that he was around 35/36

years old person. Therefore, there is no impediment to conclude that the

deceased Naresh was the person from age group of 35 to 40 years. Hence,

in view of guidelines delineated in the case of Sarla Verma (supra) multiplier

of 15 prescribed for age group of deceased who was in between 36 to 40

years of age should be applied. Obviously, the findings of Tribunal on this

score appear to be erroneous and imperfect. The Tribunal should have

applied the multiplier of 15 instead of 14 in this case by considering the fact

that the deceased Naresh was from the group in between 36 to 40 years age.

9] The learned counsel for the appellants further claimed the

amount of future prospects of the deceased. He submits that in view of

judicial pronouncement in the case of National Insurance Company Vs.

Pranay Sethi (supra) the addition of actual income of the deceased existing

at the time of his death towards future prospects is mandatory. The decased

Naresh was 35 years old person and in view of ratio laid down by the

Honourable Apex Court addition of 40% amount of established income of the

deceased is essential to be calculated while determining the compensation

{8} FA 3633.16.odt

amount in this case. He also raised objection in regard to the inadequate

amount awarded by the Tribunal towards non-pecuniary heads of damages.

He urged to grant amount of Rs. 15,000/- each for loss of estate and towards

funeral expenses as well as Rs. 40,000/- towards loss of consortium.

10] It is not in dispute that in view of law laid down in the aforesaid

Sarla Varma's case, addition of amount towards future prospects, other than

the exceptional cases involving special circumstances, was not permissible

under law in cases, where the deceased was self-employed or was on a fixed

salary. But, there was divergence of opinion, following decision in the case

of Smt. Reshma Kumar Vs. Madan Mohan (2013) 9 SCC 65 as well as in

the case of Rajesh Vs. Rajgurusingh (2013) 9 SCC 54, etc. The

controversy in regard to the principle of addition of actual income towards

future prospects was referred to the larger bench of the Hon'ble Apex Court,

for authoritative pronouncement in the case of National Insurance

Company vs. Pranay Sethi (2017) SCC online SC 1270. After appreciating

the entire factual scenario, in the light of prescribed provisions of law, the

Honourable Apex Court delineated the guidelines that in case the deceased

was self-employed or on a fixed salary and he was below 40 years of age,

there should be addition of 40 % of his established income towards future

prospects and in case deceased was in between 40 to 50 years, addition of

25% of the established income would be reasonable. Eventually, in order to

bring consistency and uniformity while computation of just compensation as

envisaged under Section 168 of the Act of 1988, the Larger Bench of the

{9} FA 3633.16.odt

Honourable Apex Court, in the aforementioned Pranay Sethi's case in para.

61 laid down the ratio as below :-

"61. In view of the aforesaid analysis, we proceed to record our

conclusions:-

(I) xxx xxx xxx xxx

(ii) xxx xxx xxx xxx

(iii) While determining the income, an addition of 50% of actual

salary to the income of the deceased towards future prospects, where

the deceased had a permanent job and was below the age of 40 years,

should be made. The addition should be 30%, if the age of the

deceased was between 40 to 50 years. In case the deceased was

between the age of 50 to 60 years, the addition should be 15%. Actual

salary should be read as actual salary less tax.

(iv) In case the deceased was self-employed or on a fixed

salary, an addition of 40% of the established income should be the

warrant where the deceased was below the age of 40 years. An addition

of 25% where the deceased was between the age of 40 to 50 years and

10% where the deceased was between the age of 50 to 60 years should

be regarded as the necessary method of computation. The established

income means the income minus the tax component.

(v) For determination of the multiplicand, the deduction

for personal and living expenses, the tribunals and the courts shall be

guided by paragraphs 30 to 32 of Sarla Verma which we have

reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the

Table in Sarla Verma read with paragraph 42 of that judgment.

{10} FA 3633.16.odt

(vii) The age of the deceased should be the basis for

applying the multiplier.

(viii) Reasonable figures on conventional heads, namely,

loss of estate, loss of consortium and funeral expenses should be Rs.

15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid

amounts should be enhanced at the rate of 10% in every three years."

11] In the light of exposition of law in Pranay Sethi's case, it is

perceivable that the objection raised on behalf of appellant in regard to

future prospects and compensation awarded under the non-pecuniary heads

appears to be sustainable and acceptable one. As discussed above, the

deceased Naresh was a skilled worker and eking livelihood by doing labour

work as a painter. He was a self employed person. The police record

reflects that at the time of accident, he was 35 years old person and in view

of ratio laid down in Sarla Verm's case (supra) the multiplier of 15 is required

to be applied in this case. Moreover, deceased Naresh was survived by the

widow and two children i.e. appellants/original claimants . In the case of

Serla Verma (supra), in para.30, Their Lordships of Honourable Apex Court,

observed as under :-

"30. Though in some cases the deduction to be made towards

personal and living expenses is calculated on the basis of units

indicated in Trilok Chandra, the general practice is to apply

standardised deductions. Having considered several subsequent

decisions of this Court, we are of the view that where the

deceased was married, the deduction towards personal and

{11} FA 3633.16.odt

living expenses of the deceased should be one-third (1/3 rd)

where the number of dependent family members is 2 to 3, one-

fourth (1/4th) where the number of dependent family members

is 4 to 6, and one-fifth (1/5th) where the number of dependent

family members exceeds six."

12] This court is not oblivious of the fact that, following

authoritative pronouncement in Pranay Sethi's case, there were subsequent

development in the mode and manner of computation of compensation

amount. The endeavour was to bring uniformity and consistency in

ascertaining the multiplicand for just and fair compensation payable to the

claimant. The aforesaid Pranay Sethi's case was decided on 31 st October,

2017. In the instant case the tribunal dealt with the present matter in the

year 2016 i.e. prior to decision of Pranay Sethi's case. However, in view of

social object of legislation, it would amenable to apply the principles laid

down in Pranay Sethi's case, to the facts of the present matter for

calculation of just and reasonable compensation payable to the claimant. It

would sub-serve the social object of legislation. The legal guidelines

delineated in Pranay Sethi's case were meant for ascertaining the

multiplicand for just and reasonable compensation. In such circumstances,

there is no impediment that the points of controversy in the present appeal

can be dealt with by resorting to legal guidelines delineated in Pranay Sethi's

case.

{12} FA 3633.16.odt

13] Pursuant to the aforesaid authoritative pronouncement of

Honourable Apex Court, in the instant case, the number of dependent family

members of deceased Naresh was 3 and, therefore, one-fourth deduction

towards personal and living expenses of the deceased is essential to be taken

into consideration instead of one-third deduction, as calculated by the

Tribunal. Moreover, as mentioned in clause No. VIII of para.61 of the Pranay

Sethi's case referred supra, the Honourable Apex Court has issued directions

to take into consideration amount of Rs.15,000/- each for funeral expenses

as well as loss of estate and Rs. 40,000/- for loss of consortium, while

determination of compensation under the conventional heads. The Tribunal

awarded Rs.10,000/- each for loss of estate and consortium and Rs. 4,000/-

towards funeral expenses. The calculation of compensation amount towards

non-pecuniary heads appears to be against the well-settled principles of law

as laid down in Pranay Sethi's case (supra). Therefore, it should be

considered that the appellants/claimants are entitled for further

enhancement of compensation by applying multiplier of 15, as well as

addition of amount towards future prospects and requisite amount of

compensation towards non-pecuniary heads.

14] In view of aforesaid discussions, it would be apposite to

appreciate the following mathematical calculation in the tabular form to

facilitate for ascertaining the multiplicand to determine the amount of just

compensation payable to the appellants/original claimants. The Tribunal

held the notional income of deceased Naresh @ Rs. 3,000/0 p.m. which came

{13} FA 3633.16.odt

to be approved by this court as held above and the respondent MSRTC also

did not agitate the same in any appellate forum.

  No.                 Particulars                                           Amount (in Rs)
   A     Total income per year                        3000 X 12                 36,000/-
   B     40% to be added in total                 36,000 +14,400                50,400/-
         income per year towards
         future prospects.
   C     1/4th deductions towards
         personal and living expenses             50,400 - 12,600               37,800/-
   D     Pecuniary loss after applying                37,800 x 15              5,67,000/-
         multiplier of '15' as deceased
         was between 35 to 40 years
         age group
                     Total compensation payable to claimants                   5,67,000/-
                                      Add : Funeral expenses                    15,000/-
                                        Add : Loss of Estate                    15,000/-
                                    Add : Loss of Consortium                    40,000/-
                                   Total Sum payable to claimants              6,37,000/-
                                Less : Amount awarded by Tribunal              3,60,000/-
                                          Amount to be enhanced                2,77,000/-




15]             In the above premise, it is to be concluded that the

appellants/original        claimants     are     entitled    to    get     compensation         @

Rs. 6,37,000/- for the loss caused to them following untimely accidental

death of deceased Naresh, bread-winner of their family. The Tribunal

calculated the sum payable to claimants @ Rs. 3,60,000/-. Therefore, it is

imperative to allow the appellants/claimants to get enhanced compensation

to the tune of Rs.2,77,000/- (i.e. 6,37,000 - 3,60,000 = 2,77,000) for the loss

caused to them. The entire compensation amount of Rs. 6,37,000/- shall

{14} FA 3633.16.odt

carry interest @ 9% p.a. from the petition till its realization. The total sum

of Rs. 1,70,000/-from the enhanced compensation amount of Rs.2,77,000/-

be invested in the name of appellant Nos. 2 and 3 ( i.e. Rs. 85,000/- each)

accompanied with the earlier amount of Rs.90,000/- ordered to be deposited

in Fixed Deposit Receipt in the name of appellant Nos. 2 and 3, by the