Bombay High Court
Mr. Mulchand Dhanji Shah And Anr vs Mr. Noordam Iraj Ahmed And Ors on 10 January, 2022
Bench: N. J. Jamadar
FA-1005-2019-J.DOC
3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1005 OF 2019
Digitally
signed by
SHRADDHA
SHRADDHA KAMLESH 1. Mulchand Dhanji Shah
KAMLESH TALEKAR
TALEKAR Date:
Adult, Indian Inhabitant, Age : 62 yrs.
2022.01.10
14:50:56 Father of Deceased, Occ. : Retired,
+0530
But looking after the business of
Deceased
2. Mrs. Ranjanben Mulchand Shah,
Adult, Indian Inhabitant, Age : 60 yrs.
Mother of Deceased, Occ : Housewife,
Both was having address at B-312,
Anant, 46, M.M. Malviya Road,
Opp. Tel. Exchange, Mulund (W), ... Appellant
Mumbai - 400 080. (Orig. Applicants)
Versus
1. Mr. Noordam Iraj Ahmed
Owner of the Truck No. GJ-15X-8541
Residing at Near Railway Gate, St.
Bhilad,
Taluka - Umargaon, District : Valsad ...Respondent No.1
Gujurat (Opp. Party No.1)
2. Mr. Skraj Dehri, S. Yadav
(Driver of Truck No. GJ.15X-8541,
Age : 45 years, residing at
Dahaliwadi, Taluka - Umargaon, ..Respondent No.2
District : Valsad Gujurat (Opp. Party No.2)
3. The Oriental Insurance Company
Limited,
Divisional offce at Jogeshwari
Branch, 103/104,
Paizen Apartment, S.V. Road,
Jogeshwari, Mumbai-400 102 and
Regional Offce No.2,
Oriental House, 7, J. Tata Road,
Mumbai - 400 020.
Policy No. 122201/31/2004/1487 ..Respondent No.3
Shraddha Talekar, PS. 1/13
FA-1005-2019-J.DOC
Valid upto : 21.08.2003 to 20.08.2004 (Opp. Party No.3)
Vehicle No. GJ.15X-8541
***
Mr.Gaurav Parkar, Advocate for appellant.
Mr.Saumen S. Vidyarthi, Advocate for respondent No.3.
***
CORAM : N.J. JAMADAR, J.
Reserved for Order on : 2nd DECEMBER 2021.
Pronounced on : 10th JANUARY 2022.
(THOUGH VIDEO CONFERENCE)
JUDGMENT :
1. This appeal is directed against a judgment and award in
Application No.288 of 2005 dated 27th February 2013, passed by
learned Member, Motor Accident Claims Tribunal, Mumbai
(Tribunal'), whereby the compensation of Rs. 3,20,000/- was
awarded under section 166 of the Motor Vehicles Act, 1988 ('MV
Act') in respect of the death of Digesh Mulchand Shah, the
deceased son of the appellants-original applicants. (The parties
hereinafter are referred to in the capacity, they were arrayed
before the learned Member, Tribunal).
2. Shorn of unnecessary details, the background facts
leading to this appeal can be stated as under :
Digesh, the deceased son of the applicants, then 24 years
of age, was on his way to Mumbai in a car, alongwith a friend.
When they reached village Waliv near Vasai, a truck bearing No.
GJ-15-X-8541 ('offending vehicle'), owned by opponent No.1,
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driven by opponent No.2, and insured with opponent No.3,
came in a high speed and gave dash to the deceased's car. The
deceased and his friend sustained injuries in the accident. The
deceased was pronounced dead on admission at Agarwal
Hospital. The deceased was dealing in a business and used to
earn Rs.2,00,000/-per annum. The applicants were totally
dependent on the income of the deceased. Hence, the applicants
preferred application for compensation under section 166 of the
M.V. Act.
3. The opponent Nos.1 and 2 did not appear, despite service
of notice. Hence, the application proceeded ex-parte against
opponent Nos.1 and 2. The opponent No.3-insurer resisted the
application by fling written statement (Exh.13). The material
averments in the application adverse to the interest of the
insurer were denied. It was contended that the driver of the
offending vehicle was not at fault and the impact occurred on
account of the negligence on the part of the driver of the car.
4. The learned Member of the Tribunal recorded the evidence
of Mulchand Shah (AW-1), the applicant No.1. After appraisal of
the oral evidence and the documents tendered for perusal, the
Tribunal returned the fnding that the accident occurred due to
rash and negligent driving of the offending vehicle by the
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opponent No.2 and the deceased died on account of the injuries
sustained therein. The Tribunal assessed the loss of
dependency, by reckoning the notional income of the deceased
at sum of Rs.3,000/- per moth. Deducting ½ towards personal
and living expenses, and applying the multiplier of '17', the loss
of dependency was determined at Rs.3,06,000/-. Sums of
Rs.4,000/-, towards funeral expenses, and Rs.10,000/-, towards
loss of love and affection were added, to award, total
compensation of Rs.3,20,000/-.
5. Being aggrieved by and dissatisfed with the quantum of
compensation, the applicants are in appeal.
6. I have heard Mr.Gaurav Parkar, the learned counsel for the
appellants and Mr. Saumen Vidyarthi, the learned counsel for
respondent No.3-insurer. With the assistance of the learned
counsels for the parties, I have perused the material on record.
7. Mr.Parkar, the learned counsel for the appellants
canvassed a three-pronged submission. Firstly, the Tribunal
committed an error in assessing the income of the deceased on
notional basis. In the face of the uncontroverted facts that the
deceased was dealing in a business and was an income-tax
assessee, the income of the deceased could not have been
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assessed on notional basis. Even the notional income was
reckoned at a much lower threshold of Rs.3,000/- per month.
Secondly, no addition was made towards future prospects.
Considering the fact that the deceased was only 24 years of age,
it was incumbent upon the Tribunal to add at least 50% of the
established/notional income towards future prospects. Thirdly,
the Tribunal wrongly applied the multiplier of '17' instead of '18'.
8. Mr. Parkar further urged that in the face of the material on
record and the attendant circumstances, the income of the
deceased ought to have been assessed at Rs.10,000/- per
month, in the minimum, for the purpose of computation of the
loss of dependency. It was further submitted that appropriate
amount is required to be awarded under the conventional heads
of funeral expenses, loss of estate and flial consortium. Thus,
the impugned judgment and award warrants interference.
9. Per contra, Mr.Vidyarthi, the learned counsel for
respondent No.3 stoutly submitted that the Tribunal has
ascribed justifable reasons for assessing the income of the
deceased on notional basis. The applicants had not placed on
the record of the Tribunal any document to establish the fact
that the deceased was dealing in any business. On the one
hand, the nature of the business was not indicated. On the
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other hand, the mode of ownership, namely whether it was a
proprietary frm, partnership or company, was also in the
corridor of uncertainty. In this view of the matter, the learned
Member of the Tribunal was well within her rights in awarding
compensation on the basis of notional income. Mr. Vidyarthi,
however, fairly submitted that multiplier of '18' instead of '17',
having regard to the age of the deceased, ought to have been
applied.
10. To begin with, it is necessary to note that the fnding of the
Tribunal that the accident occurred due to negligence on the
part of the opponent/respondent No.2-driver and on account of
the injuries sustained in the said accident the deceased met
death, has attained fnality. The only question which crops up
for consideration is the justness of the compensation awarded
by the Tribunal. In the backdrop of the object of the provisions
contained in section 166 of the M.V. Act, the Tribunal and
Courts are expected to determine the compensation so as to
place the dependents in the same position as they would have
been, had they not lost the breadwinner, in the accident. Thus,
the endeavour to ascertain as to what was the loss of
dependency.
11. Undoubtedly, in the case at hand, the Tribunal
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approached the task of determining just and fair compensation
by resorting to the multiplier method. In the process, the
multiplicand was assessed as Rs.18,000/- per annum (after
deducting 1½ towards personal and living expenses) and the
multiplier of '17' was applied. Whether the ascertainment of
multiplicand and application of multiplier are justifable is the
question which comes to the fore in this appeal.
12. The Tribunal was of the view that the applicants failed to
adduce any evidence to show the nature of the business, the
deceased was allegedly dealing in, what was its ownership
structure; whether a proprietary or a partnership frm, and had
the deceased obtained any license to deal in the business. Thus,
the learned Member thought it appropriate to reckon notional
income at Rs.3,000/- per month.
13. Mr.Parkar assailed the aforesaid approach of the Tribunal.
Inviting the attention of the Court to the fact that the claim of
the applicants that the deceased was dealing in the business
went uncontroverted and that the applicants had fled the
copies of the income tax returns alongwith the application itself,
Mr.Parkar would urge that the Tribunal took a very hyper-
technical view of the matter.
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14. On the aspect of the income-tax returns, the learned
Member, specifcally recorded in the impugned judgment that
the applicants had produced invisible photostat copy of the form
No.2D of the year 2001-2002. Neither original nor true or
certifed copy was placed on record. No other document was
produced to substantiate the claim that the deceased was
paying income tax. Thus, the Tribunal was not persuaded to
take into account the said document.
15. It would be contextually relevant to note that the
applicants claimed that the deceased was dealing in the
business of paper as a sole proprietor thereof. Mr.Mulchand
(AW-1) attempted to correct himself by affrming that the said
business was carried on under the name and style of Jainum
Credit Company. Mr. Mulchand (AW-1) conceded that he could
not produce any statement of account maintained with any
bank in the name of the deceased.
16. Indeed the applicants could not produce documentary
evidence of unimpeachable character to demonstrate that the
deceased was dealing in the business and was an income-tax
assessee. Nonetheless, the nature of the proceedings under
section 166 cannot be lost sight of. The purpose of the
proceeding is to award just compensation under the statutory
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provisions. Strict rules of evidence are not required to be
adhered to.
17. In the case at hand, the learned Member of the Tribunal
ought to have considered the nature of the avocation which the
deceased was stated to be dealing in, and the situation in life of
the deceased and the applicants. The deceased was a 24 years
young man. The claim of the applicants that they were
dependent on him could not be impeached. The applicants made
an effort to substantiate their claim that the deceased was
dealing in a business and earned income, by placing a copy of
Form 2D.
18. The aspect of fling of a copy of the income-tax return,
reflecting the income of the deceased for the year 2000-2001,
was also adverted to in the written submissions on behalf of the
insurer. It was claimed that the income reported for the years
2000-2001 was Rs.48,251/- per annum. No income-tax return
was fled for the year ending 31st March 2004. Thus, after
deducting 50% towards personal and living expenses, the
annual dependency would be Rs.24,000/- per annum, was the
submission on behalf of the insurer.
19. In the backdrop of aforesaid nature of the material
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brought on record, the Tribunal had no other go but to resort to
guess-work for assessing the income on notional basis. However,
determination of the notional income at Rs.3,000/- per annum,
in the backdrop of the attendant circumstances, to my mind,
was on a much lower side. By any standard, a person who found
himself in the similar situation as the deceased, in the year
2004, would have earned more than Rs.100/- per day.
20. Mr.Parkar was justifed in placing reliance on the
judgment of the Supreme Court in the case of Kirti and Ors. Vs.
Oriental Insurance Co. Ltd. 1. In the said case, the Supreme
Court held that failure of the claimants to produce evidence in
support of the income of the deceased does not justify adoption
of the lowest tier of minimum wage while computing the income.
The observations of the Supreme Court in paragraph No.12 are
relevant and, hence, extracted below :
"11.............From the statement of witnesses,
documentary evidence on record and circumstances of
the accident, it is apparent that Vinod was
comparatively more educationally qualifed and skilled.
Further, he maintained a reasonable standard of living
for his family as evidenced by his use of a motorcycle
for commuting. Preserving the existing standard of
living of a deceased's family is a fundamental
endeavour of motor accident compensation law. Thus,
at the very least, the minimum wage of Rs 6197 as
applicable to skilled workers during April 2014 in the
State of Haryana ought to be applied in his case."
1 (2021) 2 SCC 166
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21. On the aforesaid touchstone, if the notional income of the
deceased was to be computed, in the face of the material to
indicate that the deceased had reported the income of
Rs.48,000/- for the years 2000-2001, on a conservative
estimate, notional income ought to have been assessed at
Rs.60,000/- per annum. Deducing ½ towards the personal and
living expenses, the loss of dependency would come to
Rs.30,000/- per annum.
22. In view of the pronouncement of the Constitution Bench of
the Supreme Court in the case of National Insurance Company
Limited Vs. Pranay Sethi & Others 2, in case of a self-employed
deceased, who was below 40 years of age, an addition of 40% of
the established income is required to be made towards future
prospects. In the case of Hem Raj Vs. Oriental Insurance Co.
Ltd. & Ors. 3, it has been laid down that future prospects ought
to be allowed for those with notional income as well. Thus, a
sum of Rs.12,000/- per annum is required to be added towards
the future prospects.
23. The multiplicand would thus be Rs.42,000/-. Since the
deceased was 24 years of age, multiplier of '18' was required to
2 (2017) 16 SCC 680
3 (2018) 15 SCC 654
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be applied. Thus, computation of loss of dependency would be
Rs.7,56,000/-.
24. In view of the pronouncement of the Supreme Court in the
case of Pranay Sethi (Supra), a sum of Rs.15,000/- is required to
be added towards loss of estate, Rs.15,000/- towards funeral
expenses, and Rs.40,000/- towards flial consortium, to each of
the applicants.
25. The applicants are, thus, entitled to the compensation
under the following heads :
(i) Loss of dependency : Rs.7,56,000/-
(ii) Funeral expenses : Rs.15,000/-
(iii) Loss of estate : Rs.15,000/-
(iv) Filial consortium : Rs.80,000/-
-----------------------
Total : Rs.8,66,000/-
26. For the foregoing reasons, the appeal deserves to be partly
allowed by modifying the impugned award.
27. Hence, the following order :
ORDER
(i) The appeal stands partly allowed.
(ii) The opponent Nos.1 to 3 -respondent Nos.1 to 3
do jointly and severally pay Rs.8,66,000/- alongwith
interest @ 7.5 % per annum from the date of the
application till realization, to the applicants.
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(iii) The amount deposited by the
opponent/respondent Nos.1 to 3, or any of them,
shall be deducted from the amount of
compensation, as awarded by this order.
(iv) Parties shall bear their respective costs
throughout.
(iv) Award be drawn accordingly.
[N. J. JAMADAR, J.]
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