Smt. Asha Madhukar Pokharkar And ... vs Khandu Balu Nikam And Anr
2021 Latest Caselaw 16770 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  APPELLATE SIDE CIVIL JURISDICTION

                     FIRST APPEAL NO.1937 OF 2007

Asha Madhukar Pokharkar and Others                      ...Appellants
         vs.
Khandu Balu Nikam and Another                           ...Respondents

Mr. Sangram Singh Yadav, for the Appellant
Mr. P.S. Gole, for Respondent No. 1.
Ms. Poonam Mittal, for Respondent No. 2.

                        CORAM :             N.J. JAMADAR, J.
                    RESERVED ON :           13th OCTOBER, 2021
                    PRONOUNCED ON :         3rd DECEMBER, 2021
                                 -------------
JUDGMENT :

1. This appeal is directed against the judgment and award dated

29th March, 2006 passed by the learned Member, MACT, Satara

(Tribunal) in MACP No. 161 of 2000 whereby the claim of the

applicants/appellants No. 1 to 3 and 5 came to be partly allowed.

2. Appeal arises in the backdrop of the following facts:-

a] For the sake of convenience and clarity, the parties are

referred to in the capacity in which they were arrayed before the

Tribunal.

b] Madhukar Pokharkar (the deceased) was the husband of

applicant No.1 and father of applicant Nos. 2 and 3. The applicant

No. 5 is the mother of the deceased. Original applicant NO. 4

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Gajabhau was the father of the deceased. He passed away during the

pendency of the claim application.

c] The applicants preferred the application under section 166 of

the Motor Vehicle Act, 1988 (MV Act, 1988) with the assertion that

on 18th January, 2000 while the deceased was riding his motor cycle

bearing No. MXJ-6126, on his way to Satara, on Koregaon-Satara

road, a Commander Jeep bearing No. MH-09-G-734, owned by

opponent No. 1 and insured with opponent No. 2 approached in high

speed and gave a violent dash to the deceased. The driver of the

offending vehicle drove the jeep in an extremely rash and negligent

manner and dragged the deceased for a considerable distance. The

deceased succumbed to the injuries on the spot. The applicants

averred that, the deceased was a builder and contractor by

profession. He was the proprietor of 'Kangaru Movements'and

partner in Chinar Construction, Satara. He owned multiple vehicles.

He was an income tax assessee. His yearly income from the said

business of builder and contractor was in the range of Rs. 4 lakhs.

The deceased owned agricultural land and had an annual income in

the range of Rs. 50,000/- therefrom. The applicants thus claimed

compensation of Rs. 45 lakhs.

d] The claim was resisted by defendant No. 1 by fling written

statement. It was denied that the accident occurred due to

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negligence on the part of the driver of the vehicle. On the contrary,

the deceased was at fault. In any event, since the vehicle was

insured with opponent No. 2 insurer, the later was liable to

indemnify the opponent No. 1.

e] The opponent No. 2 also resisted the claim by fling written

statement. The mode and manner of the accident were denied. The

claims about the age and income of the deceased and dependency

were also contested.

f] The learned Member of the Tribunal recorded the evidence of

Asha Pokharkar (PW.1) the applicant No.1, Sampatrao Lokhande

(PW.2), an offcial at Public Works Department, Satara, Gulab

Tatyaba Sonawane (PW.3), the Dy. Engineer attached to Irrigation

Department, Satara, Hemant Barve (PW.4), the Income Tax

Inspector and Iqbal Mulani (PW.5), the partner of the deceased in

Chinar Construction. After appraisal of the evidence and the

documents tendered for its perusal, the Tribunal was persuaded to

record that the accident occurred due to rash and negligent driving

of the offending jeep by its driver. There was no contributory

negligence on the part of the deceased. The Tribunal thus awarded

compensation of Rs. 19,15,000/- along with interest @ 6% p.a. from

the date of application till realization. The Tribunal, inter alia,

adopted the multiplicand of 1,50,000/- and applied the multiplier of

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'12', to determine loss of dependency in addition to the

compensation under the conventional heads. Being aggrieved by

and dis-satisfed with the quantum of compensation, the applicant

Nos. 1 to 3 and 5 have preferred this appeal for enhanced

compensation.

3. I have heard Mr. Sangram Singh Yadav, learned counsel for

the appellant, Mr. P.S. Gole, learned counsel for Respondent No. 1

and Ms. Poonam Mittal, learned counsel for Respondent No. 2-

insurer at length. With the assistance of the learned counsel for the

parties, I have perused the material including the depositions and

evidence before the Tribunal which form part of the record and

proceeding, requisitioned by this Court.

4. Mr. Yadav, learned counsel for the appellant would urge that

the learned Member, Tribunal, committed a manifest error in

determining the multiplicand at a substantially lower amount. In

the face of the material on record, in the nature of Income Tax

returns, which were duly proved in the evidence of Mr. Hemant

Barve (PW.4), the assessment of annual income at a much lower

rate was wholly unjustifable. Secondly, the learned Member

committed an error in applying the multiplier of '12' despite

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recording a categorical fnding that the age of the deceased was in

the range of 40 to 45. Thirdly, the failure to take into account future

prospects and add at least 25% of the annual income towards the

future prospects denuded the impugned award the character of

'just' award. Mr. Yadav would further urge that the rate of interest @

6% p.a was also wholly unjust if viewed in the backdrop of the then

prevailing rate of interest in the money market. Hence, on all these

counts, the amount of compensation is required to be enhanced,

submitted Mr. Yadav.

5. In opposition to this, Mr Gole, the learned counsel for

respondent No. 1 urged that the grievance of the appellants that

learned Member of the Tribunal has not awarded just and proper

compensation is unsustainable. On the contrary, the learned

Member has awarded compensation under conventional heads on a

higher side. The award of Rs. 60,000/- towards the consortium was

stated to be on a higher side. It was submitted that the learned

Member of the Tribunal applied the multiplier of '12' on the basis of

submission made on behalf of the applicants and, thus, the

applicants cannot be now permitted to agitate the said grievance.

6. Ms. Mittal the learned counsel for respondent No. 2 submitted

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that the applicants cannot be permitted to draw much mileage from

the fact that the income tax returns were fled by the deceased for

two fnancial years. Since there was no material to indicate that the

deceased had fled income tax returns in the previous fnancial

years, the Tribunal was justifed in drawing an inference that there

was fuctuation in the income of the deceased and, thus, assess the

annual income at Rs. 2,25,000/-.

7. Evidently, the controversy revolves around the determination

of correct multiplicand and application of the correct multiplier. In

the case at hand, the applicants had led evidence to demonstrate

that the deceased was dealing in the business as a builder and

contractor and was a registered contractor with Public Works

Department and Irrigation Department. There was material to

indicate that in addition to the income from the said business, the

deceased drew income from agricultural land as well. In the income

tax returns for the year 1998-1999, the gross yearly income was

shown as Rs. 3,69,743.68/-. Whereas in the income tax returns for

the year 1999-2000 the gross income was shown at Rs. 2,39,720/-.

Out of which Rs. 1,80,235/- was shown as income from the business.

Rs. 31,487/- as income from other sources, in addition to, Rs.

40,000/- as income from agriculture. Mr. Hemant Barve (PW.4)

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informed the Tribunal that income tax return for the year 2000-

2001 was not submitted as deceased died on 18th January, 2000. He

expressed his inability to state since when the deceased had been

fling income tax returns. He hazarded a guess that the deceased

might have submitted income tax returns even prior to 1998-1999.

8. In the backdrop of the aforesaid evidence, the learned Member

of the Tribunal noted that there was difference of about Rs.

1,30,000/- in the gross yearly income reported in the years 1998-

1999 and 1999-2000. Adverting to this fuctuation in the income of

the deceased, as manifested in the income tax returns for the year

1998-1999 (Exh.77) and 1999-2000 (Exh.78), the average yearly

income of the deceased was assessed at Rs. 2,25,000/-.

9. The aforesaid approach of the learned Member, Tribunal in

accounting for the fuctuations in the income by assessing the

yearly income, on an average, would have been justifable, had the

learned Member determined the annual income on the basis of

average of the two reported years' income. The total income for the

two fnancial years i.e. 1998-1999 and 1999-2000 worked out to Rs.

6,09,463/-. The average annual income, by this token, would have

been Rs. 3,00,000/-. Scaling down the income to Rs. 2,25,000/- on

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the premise that there was reduction in the reported income in the

preceding year, was not justifable. To add to this, the deceased has

reported agricultural income in both the fnancial years.

10. In this view of the matter, the learned counsel for the

applicant was justifed in advancing the criticism that annual

income was assessed at a much lower threshold of Rs. 2,25,000/-.

Average annual income of the deceased, in the light of

overwhelming evidence in respect of income from multiple sources,

ought to have been considered at Rs. 3,00,000/-.

11. No amount was added towards the future prospects. The

controversy as regards the addition towards the future prospects,

even in case of the deceased who was self-employed or on a fxed

salary, was set at rest by the Constitution Bench judgment of the

Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay

Sethi and Others1. In the context of the controversy at hand, the

conclusion in paragraph 61(iv) is material, and, hence, extracted

below:

In case the deceased was self-employed or on a fxed salary, an addition of 40 per cent of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25 per cent where the deceased was between the age of 40 and 50 years and 10 per cent

1 2017 ACJ 2700.

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where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.

12. Thus, towards future prospect a sum of Rs. 75,000/- (25% of

3,00,000/-) is required to be added to the aforesaid annual income.

Thus, computed the total annual income would be required to be

reckoned at Rs. 3,75,000/-. Deducting 1/3 towards the personal and

living expenses, the multiplicand would thus come to Rs. 2,50,000/-.

13. Mr. Yadav was further justifed in assailing the impugned

award for application of incorrect multiplier. The Tribunal recorded

in no uncertain terms that the age of the deceased was in the range

of 40 to 45 years. The Tribunal, however, after adverting to the

pronouncement of the Supreme Court in the case of Supe Dei vs.

National Insurance Co. Ltd.2 applied the multiplier of '12'.

14. The controversy as regards the application of correct

multiplier is also set at rest by the Constitution Bench judgment in

the case of Pranay Sethi(supra). After approving the

pronouncement of the Supreme Court in the case of Sarla Verma vs.

Delhi Transport Corporation3, in the case of Pranay Sethi (supra),

the Supreme Court ruled that the selection of multiplier shall be as 2 2002 ACJ 1166 (SC).

3 2009 ACJ 1298 (SC).

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indicated in the table in Sarla Verma (supra) read with paragraph

21 of that judgment. The said paragraph 21 reads as under:

We, therefore, hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every fve years, that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36-40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every fve years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.

15. The correct multiplier would thus be '14'.

16. Thus computed the loss of future income comes to Rs.

35,00,000/- (2,50,000 x 14).

17. As regards the compensation under conventional heads in the

case of Pranay Sethi (supra) the Supreme Court standardized the

fgures as under:

(viii) Reasonable fgures under 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 per cent in every three years.

18. On the aforesaid touchstone, the amount awarded by the

Tribunal under conventional heads deserves tobe modifed as under:

1] Loss of love and affection qua applicant Nos. 2 and 3                - 1,00,000
    (Rs. 50,000/- each)


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2] Loss of spousal consortium for applicant No.1            - 40,000
3] Loss of flial consortium for applicant No. 5             - 40,000
4] Funeral expenses                                         - 15,000
5] Loss of estate                                           - 15,000

The applicants would thus be entitled to total compensation of Rs. 37,10,000/-.

19. The award of interest @ 6% p.a. is undoubtedly conservative,

by any standard. Having regard to the time lag from the date of

institution of the application till the disposal of the appeal, which is

of more than 20 years and the cyclical movement of interest rates,

it would be in the ftness of things to award interest at the rate of 7%

p.a.

20. For the foregoing reasons, the appeal deserves to be allowed.

Hence, the following order:

ORDER

1] The appeal stands allowed.

2] The impugned award stands modifed as under:

(i) The respondent Nos. 1 and 2 do jointly and severally pay a

sum of Rs. 37,10,000/- (Rupees Thirty Seven Lakhs Ten Thousand

only) along with interest @ 7% p.a. from the date of application till

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realization to the applicants No. 1 to 3 and 5.

(ii) The applicants No. 1 to 3 and 5 shall each have ¼ th share in

the aforesaid amount of compensation, excluding the amount

specifcally awarded to the applicants No. 1 to 3 and 5 towards the

loss of love and affection and consortium.

(iii) The amount already deposited by the respondents or either of

them, in terms of the impugned award, shall stand adjusted against

the amount of compensation modifed by this order.

3] In the circumstances, there shall be no order as to costs.

4]       Award be drawn accordingly.



                                            (N.J. JAMADAR, J.)




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