Bombay High Court
Sushila Wd/O Subhash Mendhe And ... vs National Insurance Company Ltd. ... on 23 January, 2018
Bench: Manish Pitale
1 fa1062.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL (FA) NO. 1062 OF 2017
1. Sushila wd/o Subhash Mendhe,
A/a 43 years, Occupation
Household;
2. Tarun s/o Subhash Mendhe,
aged about 17 years, Occupation
Student, through mother Natural
Guardian i.e. appellant No.1 -
Sushila wd/o Subhash Mendhe,
All r/o at Ward No.1, Amgaon Khurd,
Tahsil Salekasa, District Gondia. ... APPELLANTS
VERSUS
1. National Insurance Company Limited,
Through its Branch Manager, Sai
Complex, Balaghat Road, Gondia.
2. Narendra Sukhdev Patil,
A/a Major, Occupation Business,
R/o House No.11, At Khapa, Post
Babulkhoda, Tahsil Kamptee,
District Nagpur.
3. Sandip Hiralal Rakhade,
A/a major, Occupation Driver,
R/o at Shivani, Tahsil Amgaon,
District Gondia. ... RESPONDENTS
....
Shri R.M. Pande, Advocate for the appellant.
Shri V.P. Maldhure, Advocate for respondent No.1.
Shri V.R. Borkar, Advocate for the respondent No.2.
....
CORAM : MANISH PITALE, J.
DATED : 23RD JANUARY, 2018.
2 fa1062.17
ORAL JUDGMENT :
Heard. Admit. Heard finally with the consent of learned
Counsel appearing on behalf of the respective parties.
2. This appeal is filed on behalf of the claimants challenging the
judgment and order dated 05th July, 2017 passed by the Motor Accident
Claims Tribunal, Gondia in Claim Petition No. 87 of 2015. It is the
contention of the appellants/claimants that the quantum of compensation
granted by the Tribunal was required to be enhanced in the light of the
evidence on record and on the basis of judgments of the Hon'ble Supreme
Court.
3. The appellant No.1 is the mother of deceased and she herself is
widow, while appellant No.2 is the minor brother of deceased. On
27.08.2015, the deceased was travelling in Bolero Mahindra Pickup vehicle
along with others. He was working as a labour and while the vehicle was
travelling, it turned turtle due to the rash and negligent driving of
respondent No.3. An FIR was registered in respect of the said accident.
4. The appellants/claimants filed the aforesaid claim petition
before the Tribunal claiming that the deceased was working as a labour
with sub contractor and he was earning Rs.350/- per day at the time of his
3 fa1062.17
death. On this basis, the claimants raised a claim for grant of
compensation of Rs.33,74,000/-.
5. The Tribunal recorded evidence in the matter and upon
consideration of the pleadings, evidence and material on record, it held
that the notional monthly income of the deceased could be taken to be
Rs.6,000/- per month and on that basis, the Tribunal arrived at the amount
of compensation payable to the appellants/claimants. Accordingly, the
Tribunal granted total compensation of Rs.8,94,000/- along with interest at
the rate of seven per cent per annum from the date of filing of the claim
petition.
6. Aggrieved by the said judgment and order, the appellants have
filed this appeal. Shri R.M. Pande, learned Counsel appearing on behalf of
the appellants submits that the Tribunal has committed an error in
arriving at the figure of notional monthly income of the deceased by taking
it to be Rs.200/- per day. According to the learned Counsel for the
appellants, there was evidence on record in the form of oral evidence of
the employer of the deceased and salary slip, which demonstrated that the
income of the deceased was at least Rs.300/- per day. Apart from this, it is
submitted that the Tribunal has erred in applying the multiplier of 16
because the multiplier of 18 ought to have been applied, as the deceased
was 19 years of age at the time of death. Apart from this, it is submitted
4 fa1062.17
that no amount has been granted towards loss of consortium and that
there has been an error in granting of quantum of compensation under the
heads of loss of estate and funeral expenses. Reliance has been placed on
the judgments of the Hon'ble Supreme Court in the cases of Smt. Sarla
Verma and others .v. Delhi Transport Corporation and another (reported
in 2009 (6) SCC, 121) and National Insurance Company Limited .v.
Pranay Sethi and others (order dated 31.10.2017 passed in SLP (C) No.
25590 of 2014) as also the judgment of this Court in the case of Royal
Sudaram Alliance Insurance Co. Ltd. .v. Smt. Varsha Rajendra Pache
and others (reported in 2017 (6) Mh.L.J., 308).
7. On the other hand, Shri V.P. Maldhure, learned Counsel
appearing on behalf of respondent No.1 submits that the evidence of the
employer i.e. sub contractor in the present case could not have been taken
into consideration because he was the uncle of the deceased and further
there was no documentary evidence on record to show that the income of
the deceased could be held to be Rs.300/- per day. It was submitted that
the quantum of compensation ascertained by the Tribunal was correct.
8. Shri V.R. Borkar, learned Counsel appearing on behalf of
respondent No.2 supported the contentions raised on behalf of
respondent No.1.
5 fa1062.17
9. I have considered the contentions raised on behalf of the rival
parties and I find that the only point that arises for my determination is
whether the quantum of compensation granted by the Tribunal was
justified and whether any enhancement of such compensation can be
granted.
10. The Tribunal has discussed the aspect of income of the
deceased in paragraph 17 of the impugned judgment and order. It has
held that nothing was brought on record to show that the deceased was
skilled labour and it appeared that he was only working as a labour at the
time of accident. On this basis, the Tribunal concluded that the notional
income of the deceased could be taken to be Rs.200/- per day, which was
near to the minimum wages as per the Minimum Wages Act. On this basis,
the Tribunal proceeded to hold that the monthly income of deceased was
Rs.6,000/-. A perusal of the evidence on record shows that PW-2, the sub
contractor with whom the deceased was working at the time of death, has
stated in his oral evidence that the deceased was being paid Rs.300/- per
day. It is also stated that certificate of salary (Exh.37) was also issued by
the said witness stating that the deceased was being paid Rs.300/- per day.
Therefore, there was oral and documentary evidence on record to support
the claim that the deceased was earning Rs.300/- per day.
11. As regards the contentions raised on behalf of the respondents
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that there ought to have been convincing documentary evidence on record
to prove that the deceased was indeed earning Rs.300/- per day, reference
to a recent judgment of this Court would be relevant. In the case of Royal
Sundaram Alliance Insurance Co. Ltd. .v. Smt. Varsha Rajendra Pache and
others (cited supra), this Court has held as follows :
"12. Rather than assisting Mr. Mehta in his endeavours
on behalf of the Appellant, this is precisely where his troubles
begin. The evidence of Indulkar was not shaken in cross-
examination. He was undoubtedly the employer. There is no
cogent reason why an employer's bare word should not be
sufficient or should demand corroboration each time. The
fact that a person is an employer does not automatically make
him an unreliable witness or given to falsehood. There was no
need to always demand supporting documents. For instance,
if there is a case of a domestic servant being the victim of an
accident, there may well be no 'documentary record' of salary;
yet the salary is always paid, month on month. Few
householders or housewives take receipts or maintain registers
for salaries paid to domestic staff, especially part-time staff.
This may also be true of small commercial operations and
enterprises. The fact that there is no documentation does not
of its own mean that when the employer gives oral evidence of
salary paid, it should be disbelieved. However, this is precisely
what the Tribunal held, saying that Hemant may have given
this evidence in order to support the Applicants. This seems to
me to have been the purest conjecture on the part of the
Tribunal. If the Tribunal felt anything of the sort was
happening, it could have put questions to Ingulkar itself. It
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did not do so. There is no logical reason why the employer
should have arrived at a peculiar figure of Rs.11,000/-; he
might as well have said Rs.15,000/- or Rs.25,000/- if what he
wanted to do was to benefit the applicants. That reasoning
does not withstand scrutiny."
12. Therefore, it can be held that if there is no detailed
documentary evidence to support the claim of monthly income of the
deceased, the oral evidence given by the employer as regards the salary
paid, can be believed. Applying the aforesaid position of law to the facts of
the present case, I find that the Tribunal erred in holding that the notional
income of the deceased at the time of death was Rs.6,000/- per month
(Rs.200/- per day) and I hold that there was sufficient evidence on record
to show that the deceased was earning Rs.9,000/- per month (Rs.300/- per
day).
13. As regards the multiplier applied by the Tribunal in the present
case, it is evident that the table of multiplier finalized in the judgment of
the Hon'ble Supreme Court in the case of Smt. Sarla Verma nd others .v.
Delhi Transport Corporation and another (cited supra) has not been
correctly applied in the present case. In the said judgment, it has been
clearly held that when the deceased is aged between 15 and 20 years at the
time of death, the applicable multiplier shall be 18. In the instant case, the
Tribunal has wrongly applied multiplier of 16, because the deceased was
8 fa1062.17
19 years old at the time of his death.
14. On the question of the claim of loss of consortium, the Tribunal
has not granted any amount and it is justified in doing so because
admittedly the deceased was not married at the time of his death. As
regards, the heads of loss of estate and funeral expenses, as per the latest
judgment of the Hon'ble Supreme Court in the case of National Insurance
Company Limited .v. Pranay sethi and others (cited supra), the amount
payable under these two heads is Rs.15,000/- each. In the instant case, the
Tribunal has granted only Rs.5,000/- as loss of estate and Rs.25,000/- has
been granted towards funeral expenses. Therefore, even if correction in
the quantum of amount payable under these two heads is made applicable
in terms of the aforesaid judgment of the Hon'ble Supreme Court, the total
amount payable under both these heads would remain same.
15. In the light of above, the quantum of compensation works out
as follows :
Monthly income of deceased
at the time of death. ... Rs. 9,000/-
Annual income (Rs.9,000/- per
month x 12). ... Rs. 1,08,000/-
Amount towards future prospect
(50 per cent of annual income). ... Rs. 54,000/-
_______________
Total comes to ... Rs. 1,62,000/-
=============
9 fa1062.17
Half deduction as deceased was bachelor ... Rs. 81,000/-.
Therefore, Rs.81,000/- x 18 (multiplier) ... Rs. 14,58,000/-
Funeral expenses ... Rs. 15,000/-
Loss of estate ... Rs. 15,000/-
_____________
Total compensation ... Rs.14,88,000/-
===========
16. Therefore, the amount of enhanced compensation would come
to Rs.5,94,000/- (Rs.14,88,000/- (-) Rs.8,94,000/-). The said amount of
enhanced compensation shall also be paid along with interest at the rate of
seven per cent per annum from the date of filing of claim petition i.e. from
07.10.2015.
17. Accordingly, the appeal is allowed with no order as to costs.
Needless to say that the office shall work out the additional Court Fee, if
any, payable by the appellants/claimants.
JUDGE
*rrg.
