Bombay High Court
Bharti Axa General Insurance Co. ... vs Sukhdeo S/O Mengaji Sahare And ... on 7 May, 2021
Bench: S. M. Modak
FA392.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 392 OF 2019
Bharti Axa General Insurance Company
Ltd., 222-B Block, Vishnu Vaibhav
Complex, Civil Lines, Nagpur
Tahsil and District - Nagpur,
through its Manager (Legal),
Shri Idris Zahid Khanwala.
....... APPELLANT
[Original Respondent
No.3] [On R.A.]
...V E R S U S...
1] Sukhdeo s/o Mengaji Sahare, [Original Claimants
Age about 56 years. No.1 to 4] [ On R.A.]
2] Sau. Sushila Sukhdeo Sahare,
Age 53 years, Occu: Household Work
3] Ku. Jyoti d/o Sukhdeo Sahare,
Age 26 years, Occu: Nil.
4] Ku. Kalyani d/o Sukhdeo Sahare,
Age 24 years, Occu: Nil.
Respondent Nos. 1 to 4, R/o Azad Chowk,
Ward No.4, Sindewahi,
Tahsil Sindewahi, District - Chandrapur.
5] Sumit s/o Ashok Merugwar,
Age 26 years, Occu: Driver
R/o Near Temple, Patideo Mohalla,
Sindewahi, Tah. Sindewahi,
District- Chandrapur. [Ori. Res. No.1]
::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 17:53:09 :::
FA392.odt 2
6] Ashok s/o Baliram Merugwar,
Aged about 64 years, Occu: Owner of
offending vehicle.
R/o Near Temple, Patideo Mohalla,
Sindewahi, Tah. Sindewahi,
District- Chandrapur. [Ori. Res. No.2]
... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri A.P. Bhuibhar, Advocate h/f Shri R.D. Bhuibhar,
Advocate for Appellant.
Shri P.R.Agrawal, Advocate for Respondent Nos. 1 to 4.
Shri R.M. Tahaliyani, Advocate for Respondent Nos. 5 and 6.
-------------------------------------------------------------------------------------------
CORAM : S.M. MODAK, J.
RESERVED ON : 03.05.2021.
PRONOUNCED ON : 07.05.2021.
ORAL JUDGMENT
1] Heard learned Advocate Shri A.P. Bhuibhar holding
for learned Advocate Shri R.D. Bhuibhar for the appellant, learned
Advocate Shri P.R. Agrawal for respondent Nos. 1 to 4/original
claimants and learned Advocate Shri R.M. Tahaliyani for
respondent Nos. 5 and 6.
2] The issue involved in this appeal is whether the driver
/respondent/ claimant No.1 was negligent in driving a truck on
the fateful day, and whether the amount of income of the deceased
fixed at Rs.10,000/- per month is proper? The Motor Accident
Claims Tribunal, Chandrapur (hereinafter referred to as 'Tribunal')
held the driver responsible and quantified the income of the
deceased Vinod to Rs. 10,000/- per month.
3] These issues were decided by the Tribunal,
Chandrapur in Motor Accident Claim Petition (MACP) No.
138/2013 as per the judgment dated 31.10.2018. In fact, the
claimants [the legal representatives of the deceased Vinod] have
filed Civil Application (CAF) No. 294/2021 for withdrawal of the
amount. The appeal is preferred by the Insurance Company/
Original Respondent No.3. The Truck bearing registration No. MH-
34-AB-2676 was owned by respondent No.2. In this appeal, the
Insurance Company has deposited Rs. 21,11,021/-. So also, the
statutory deposit of Rs. 25,000/- is also deposited. This Court on
16.02.2021 observed as under :-
"the challenge is only to the quantum of
compensation, the parties are put to notice that
endeavor will be made to dispose of the appeal at
the stage of admission".
This was clarified on 02.03.2021. The appeal was
already admitted. Hence, the word " finally at the stage of
admission" was deleted.
4] On this background, I have heard learned Advocates
who have agreed to hear the appeal on the basis of record and
proceedings. The following points arise for my determination:-
1) Whether the Tribunal was right in holding
respondent No.1/Driver of the truck
rash and negligent? .... In the affirmative.
2) Whether the income of the deceased
Vinod at Rs. 10,000/- per month
arrived at by the Tribunal is proper ? ... In the affirmative.
3) Whether compensation is excessive? ... No.
4) Whether the impugned judgment requires
interference ? ... No.
5) What order ? ... As per final order.
Point No.1
The claimants are the father, mother and two
daughters of the deceased Vinod. On the fateful day on 31.5.2013
deceased Vinod Sukhdev Sahare alongwith his friend, Tejas Abhay
Kekre attended a marriage reception dinner of Rakesh Thakare.
The two friends, after dinner went for eating Kharra (Pan). Both
were sitting on a bench in front of the flower shop of Prashant
Bankar. It was at about 10.00 p.m., respondent No.1 came
alongwith his truck and dashed the shop of Prashant Bankar, and
also two friends sitting on the bench. Both were injured and died.
5] The Sukhdev father of the deceased/respondent No.1
has not seen the accident. He learnt about the same. He admits
about the same in a cross-examination. Learned Advocate Shri A.P.
Bhuibhar is right in that behalf. Ravindra Sahare, cousin brother of
the deceased is another witness. The spot is situated at a distance
of 100 to 150 meters from his house. He went to the spot running
when he heard loud noise. However, in cross-examination, he says
that he had seen the accident, as he was standing near the Pan
Shop.
6] The First Information Report is lodged by Ravindra
Namdeo Sahare i.e. the same witness. It is at Exhibit 33. On
getting knowledge about the accident, he went to the spot. This
portion from the F.I.R. is brought to my notice by the learned
Advocate Shri A.P. Bhuibhar. So it is also clear that he had not seen
the accident.
7] The crime details form at Exhibit 34 is filed. The
learned Advocate Shri A.P. Bhuibhar, vehemently argued that the
two witnesses have not seen the accident and there is no evidence
about rash and negligent driving of the driver. Whereas according
to learned Advocate Shri P.R. Agrawal in the claim petition, test is
of the preponderance of probabilities. Only summary inquiry is
contemplated. The Tribunal while discussing this issue has
elaborately considered the situation at the spot. The Tribunal has
also opined about the duty of the Driver to drive the vehicle on a
road and not in such a manner, so as to climb on the footpath. The
Tribunal observed the extent of damage caused by the vehicle.
[Para Nos. 14 and 15]. The suggestion was given to these
witnesses that deceased Vinod and his friend were walking on the
road in a drunken condition. It was denied. The Post Mortem
Report at Exhibit 36 is on record. The Doctor has opined
hemorrhagic shock as cause of death.
8] Even though it may be true that both these witnesses
have not witnessed the incident, I do not think that the Tribunal
has to be blamed. It is pertinent to note that the deceased was not
driving a vehicle but he was sitting on a bench. The respondent
No.1/Driver ought to have taken care and how he could drive the
vehicle in such a manner so as to hit the persons sitting on a
Bench near a Floor Shop near the road. It is possible only when,
the driver of respondent No.1 has lost control of the vehicle. It
may be due to driving vehicle in an excessive speed. It is said that
"circumstances speak for themselves". It means the impact was so
severe that Doctors did not get a chance to treat the deceased -
Vinod.
9] There is no case put up that the wrong vehicle is
involved. If it is so then does not require evidence of a person who
had seen the accident. The other circumstances i.e. extent of
damage caused [as evidenced in the spot panchanama], the
nature of injuries caused to the deceased, instant death, the
deceased was not driving any vehicle but sitting and the truck
being a heavy vehicle cumulatively suggest that it was respondent
No.1, who was rash and negligent. The argument advanced by
learned Advocate Shri A.P. Bhuibhar cannot be accepted. This
Court can certainly understand his zeal to argue for protecting the
interest of his client. But his argument is not sufficient to overlook
the circumstances mentioned above and to give a finding in his
favour. So point No. 1 is answered in the affirmative.
Point No.2
10] There are two sources of income of the deceased
pleaded by the claimants. They are from agricultural income and
milk business income. The Claim Tribunal has quantified income
from the milk business to the tune of Rs. 5,000/- per month (Para
26) and Rs.5,000/- from agricultural income (Para 24). There is
emphasis by learned advocate Shri A.P. Bhuibhar that there is no
evidence about the number of buffalos and cows and there is no
evidence of how the deceased has earned Rs.5000/- from the
agricultural business. The land stands in the name of the father
and comparatively, he was young to work. My attention is also
invited to observation by the Tribunal to the effect "the applicants
have also not been able to place on record any documents
regarding four buffalos and two jersey cows owned by Vinod"
[Para-26]
11] Whereas according to the learned Advocate Shri P.R.
Agrawal, the income from both the businesses were quantified by
the Tribunal on the lower side. Hon'ble Supreme Court and High
Courts have quantified the income as elaborated in the following
judgments :-
a] United India Insurance Co. Ltd. Nagpur V/s Shriram
Shankarraoji Deshmukh and others in First Appeal
No. 547/2009 decided by this Court on 09.09.2019.
b] Neeta w/o Kallappa Kadolkar and others V/s
Divisional Manager, Maharashtra State Road
Transport Corporation, Kolhapur, reported in (2015)
3 SCC 590.
c] Sushila wd/o Subhash Mendhe and another V/s
National Insurance Company Limited and others
reported in 2019 (1) ALL MR 658.
12] Whereas the learned Advocate Shri A.P. Bhuibhar
tried to distinguish facts of those cases from the facts of the
present case. In the case of Neeta w/o Kallappa Kadolkar (supra),
the Hon'ble Supreme Court was pleased to fix the income of the
deceased at Rs.12,000/- per month [from Carpentery and
Agricultural business]. There was no salary certificate. However,
on the basis of notification under the Minimum Wages Act, the
income from the skilled work of Carpentery was considered.
Whereas in the case of Sushila wd/o Subhash Mendhe and
another (supra), this Court considers the observation of Hon'ble
Supreme Court in Para-11. In certain cases, documentary proof
about salary may not be available. And still, when the employer is
deposing, his evidence cannot be discarded merely because
documentary proof of salary is not available. This Court,
considered Rs.9,000/- per month as a income of the deceased. He
was working with Sub Contractor [Rs. 300/- per month] [Para-10]
13] Whereas, in the case of Shriram Shankarraoji
Deshmukh (supra), this Court considered the yearly income of the
deceased to Rs. 1,50,000/- from the Milk Business.
14] The proof about exact income will be available when
the deceased is getting a salary. If he is self-employed or doing
some business, the proof about exact income can be in the form of
the books of accounts, income tax return, etc. Every time it is not
possible that the person is maintaining the account and paying
income tax. There are two aspects, One is whether there is
evidence to show the source of income and Second what is
evidence about exact income.
15] In this case, there is evidence of Sukhdev father of the
deceased and a witness Shankar Meshram [who is purchasing
milk daily from the deceased]. The father has described the
agricultural lands cultivated and paddy crop being taken by the
deceased. One 7/12 extract bearing Survey No. 547 and
Jamabandi Patrak [Form 8-A] in the name of deceased Vinod and
his father Sukhdev at Exhibit 44 is filed. Two separate lands are
shown in it. In addition to that the copy of the sale deed executed
by the deceased, thereby purchasing land for Rs.1,15,000/- is filed
at Exhibits 45 and 46. Whereas the notebook maintained by the
deceased to show the Milk sold every day at Exhibit 47 is tendered
in evidence.
16] It is true that there is no evidence as to how many
bags of paddy was cultivated. The form 8-A also shows the name
of the deceased alongwith his father. From this, it is very clear that
the deceased was owning agricultural land from which it is
possible to cultivate paddy. The sale-deed also denotes
consideration of the land is Rs.1,50,000/-. Both these
circumstances indicate that the deceased was an agriculturist. So
it is possible for him to cultivate and earn agricultural income.
Because it is difficult for non-agricultural person to cultivate and
earn from agricultural land. The Tribunal has considered
Rs. 5,000/- per month towards Agricultural Income. I do not think
that this is unreasonable and ultimately it is a guesswork one can
even say that he was earning Rs. 10,000/- per month. But in view
of the evidence about agricultural land, the interference about
earning is proper.
17] This is also true for the Milk business. There is no
reason to disbelieve the evidence. There is evidence of the father
and witness Shankar Mershram. He was running 'Shankar Tea
Stall' and purchasing 10 Liter Milk everyday @ Rs.35/- per Liter. It
may be true that the deceased was not issuing any bill but as said
above, evidence of two witnesses is sufficient to believe the source
of income from the Milk business. Not only that the notebook also
mentions the daily sale of Milk from 01.04.2013 up to 24.04.2013.
It is in the handwriting of the deceased. The buffalos and cows are
sold by the father of the deceased after the death. Here also, the
Tribunal has fixed the minimum income of Rs. 5,000/- per month.
I do not think it is unreasonable.
So I find no fault in fixing the monthly income of the
deceased to the tune of Rs. 10,000/- per month. Issue No.2 is
answered in the affirmative.
Future Prospect
18] The age of the deceased was 27 years old. There is
leaving certificate at Exhibit 42 on record. His date of birth is
05.08.1986 and the accident took place on 31.05.2013. It means
at the time accident deceased was aged 27 years old. As held in
the case of Kirti and another V/s Oriental Insurance Company
Ltd., reported in 2021 (2) SCC 166 future prospect can be granted
even in case of involving notional income. The principle of future
prospect as enunciated in National Insurance Company V/s
Pranay Sethi, 2017 (16) SCC 680 was made applicable to earning
deceased who is unable to prove actual income though employed.
The Tribunal has granted 40% of income towards future prospect.
So it comes to Rs. 4,000/- per month the logic is correct.
Deduction towards Personal Expenses.
19] The deceased was a bachelor, the parents and two
sisters were other family members. The Tribunal has presumed
that the deceased would spent 50% of the income towards his
personal expenses. It means there will be a loss of dependency to
the tune of 50%. It is correct.
Multiplier
20] The Tribunal applied the multiplier of 17 on the basis
of judgment in the case of Sarla Verma V/s Delhi Transport
Corporation reported in 2009 (5) Mh.L.J. 775. It is correct.
Loss of Consortium
21] The Tribunal has granted Rs. 40,000/- on account of
loss of filial consortium in accordance with the ruling in Megma
General Insurance Company V/s Nanu Ram Alias Chuhru Ram,
Civil Appeal No. 9581 of 2018 dated 18.09.2018. Whereas
according to Shri P.R. Agrawal, the amount of consortium should
be per person and not a lump sum of Rs.40,000/-. This was
elaborated in the case of New India Assurance Company V/s Smt.
Somwati and others [Civil Appeal No. 3093/2020] by Hon'ble
Supreme Court. Accordingly, the order granting compensation
towards loss of consortium to every claimant was upheld. Loss of
consortium includes spousal consortium, parental consortium, and
filial consortium. In this case, only compensation towards loss of
filial consortium is granted. It means a loss to parents on account
of death of the child is not granted. In fact, in the case of Magma
General Insurance Company even compensation on account of loss
to the sister of the deceased was included in loss of filial
consortium. So in this case, every claimant is entitled to Rs.
40,000/- each. To that extent, the order requires modification. The
amount towards funeral expenses is confirmed. In view of this, the
claimants are entitled to the compensation at modified rate as
follows :-
Monthly income of deceased at the Rs. 10,000/-
time of death.
Income for the purpose of assessment Rs. 10,000/- x 12
= 1,20,000/-
(+) 40% addition towards future Rs. 48,000/-
prospects.
Total Salary Rs. 1,68,000/-
(-) 50% deduction. Rs. 84,000/-
Salary for multiplier Rs. 84,000/-
(x) "17" multiplier Rs. 84,000/- x 17=
Rs. 14,28,000/-
(Compensation towards loss
of dependency)
Loss of Consortium : Rs. 1,60,000/-
(+) Rs. 40,000/- for each claimant
(+) Loss of estate Rs. 15,000/-
(+) Funeral expenses Rs. 15,000/-
Total compensation payable to Rs. 16,18,000/-
(14,28,000/- + Rs. 1,60,000/-
claimants + Rs. 15,000/- + Rs. 15,000/-)
In nutshell, the claimants are entitled to receive
Rs. 16,18,000/-.
22. This Court, certainly enhance the amount of
compensation, because the Court has to take grant just amount of
compensation. It is the duty of the Tribunal. There is no need to
file cross-objection, because the life of the deceased is important.
No amount of money can compensate it. So the technicalities does
not govern the field. This is elaborated by Hon'ble Supreme Court
in the case of Surekha w/o Rajendra Nakhate and others V/s
Santosh s/o Namdeo Jadhav and others reported in 2020 ACJ
2156. The Insurance Company has deposited Rs. 21,11,021/- on
08.05.2019 and Rs. 25,000/- on 22.02.2019, the amount needs to
be disbursed to respondent Nos. 1 to 4 as directed in the
proportion mentioned in the direction No.3 of the operative part
of the judgment. The appellant needs to deposit the amount which
is enhanced by this Court and after deposit, it can be disbursed to
respondent Nos. 1 to 4 in the manner mentioned by this Court in
the judgment. Hence, I answered point No.3 and Point No.4 in the
negative and pass the following order :-
ORDER
1) The appeal is dismissed.
2) The judgment of the Motor Accident Claims Tribunal,
Chandrapur dated 31.10.2018 passed in M.A.C.P. No.
138/2013 is modified as follows :-
(i) The appellant and present respondent Nos. 5 and 6 /
original respondents are directed to pay Rs.16,18,000/-
(Rs. Sixteen Lakhs Eighteen Thousand Only) towards the
compensation jointly and severally alongwith the interest
@ Rs. 8% per annum from the date of filing of petition till
realization.
(ii) The amount be apportioned amongst the respondent
Nos. 1 to 4 as follows :-
Respondent Father Rs. 4,15,000/-
No.1
Respondent Mother Rs. 7,40,000/-
No.2
Respondent Sisters Rs. 2,31,500/- each
(iii) Amount already deposited be adjusted. Appellant to give
details [principal amount and interest] to Respondent Nos.
1 to 4.
(iv) The appellant is directed to deposit the amount enhanced
by this Court along with interest @ 8% from date of petition
till realisation and then it be disbursed to respondent Nos. 1
to 4.
(v) Cost of Respondent Nos. 1 to 4 be paid by appellant
and Respondent Nos. 5 and 6.
3) The amount of Rs. 21,11,021/- and Rs. 25,000/- be
disbursed to the respondent Nos. 1 to 4 in the same
proportion as mentioned in direction No.3 of the judgment
of the Tribunal. Nazar to transfer that amount in the bank
account of respective respondents and make fixed deposit as
mentioned therein.
4) Civil Application stands disposed of.
5) The respondent Nos. 1 to 4 are directed to pay deficit court
fee.
(S.M.Modak,J)
rkn
