Bombay High Court
Deenbandhu Singh Shivsaran Singh ... vs Bharat Tarachand Bhalgat And Anr on 18 August, 2023
Bench: Abhay Ahuja
2023:BHC-AS:23477
1-FA-2363-2005.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2363 OF 2005
1. Deenbandhu Singh Shivsaran Singh,
aged about 53 years,
2. Smt. Muglawati Deenbandhu Singh,
aged about 50 years,
residing at R.M. Road, Oshwara,
Jogeshwari (West) Mumbai.
C/o. No.2/8 Shivsharan Singh
(Ram naresh), Chawl, Mumbai-400102. ...APPELLANTS
V/s.
1. Bharat Tarachand Bhaglat,
residing at Suraj Niwas, Bothegaon Phata,
MIDC, Ahmednagar (Maharashtra)
2. The New India Assurance Co. ltd.,
having their registered office at New India
Assurance Building, Fort, Mumbai.
Insurance Cover Note No.679496
Renewal Policy No.: 31/00673/117
Ahmednagar V/T 25/09/98. ...RESPONDENTS
Mr. T.J. Mendon, Advocate for the Appellants.
Mr. Ketan Joshi h/f Mr. Shubham Misar, Advocate for the Respondent
No.2.
CORAM : ABHAY AHUJA, J.
RESERVED ON : 28th JUNE, 2023
PRONOUNCED ON : 18th AUGUST, 2023
JUDGMENT :
1. This appeal has been filed by parents of the deceased, who, died
in motor vehicle accident on 2nd May, 1998.
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2. Earlier the appellants had filed claim application under Section
166 of the Motor Vehicles Act, 1988 seeking a compensation of
Rs.10,00,000/-. However, the Motor Accident Claims Tribunal, Mumbai
(the "MACT, Mumbai") only partly allowed the claim holding that the
appellants were entitled to recover and get Rs.2,00,000/- inclusive of
the No Fault Liability amount of Rs. 50,000/- together with interest @
7.5% p.a from November, 2003 till realization. Aggrieved by the same
this appeal has been preferred under Section 173 of the Motor Vehicles
Act, 1988 ( the "MV Act").
3. The brief facts are that the son of the appellants, who was
studying M.B.A course at Lonir, Dist. Ahmednagar and had completed
first year of M.B.A. course, on 2nd May, 1998, while he was coming
home in an auto rickshaw along with his friend met with an accident in
which he sustained serious injuries. Sujeet Singh, son of the Appellants,
was traveling in auto-rickshaw No. MH-16-B-2112 belonging to
Respondent No. 1 and insured with Respondent No. 2 when the said
auto-rickshaw in which Sujeet was travelling while passing in front of
Advani Company met with an accident and turned turtle due to rash
and negligent driving of auto-rickshaw driver. Due to the said accident
Sujeet Singh sustained very serious injuries, was taken to a hospital at
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Ahmednagar and thereafter brought to K.E.M Hospital, Mumbai but
unfortunately he died at the K.E.M Hospital on 25 th May, 1998 as a
result of the injuries. The matter was reported to the police and a case
was filed against the auto-rickshaw driver. It was contended that the
deceased had a bright career and after completing the M.B.A. course
would have earned easily Rs.3,00,000/- to Rs.4,00,000/- per year and
that his age was 22 years and the claim for compensation of
Rs.10,00,000/- was justified.
4. It is submitted that inspite of due and proper service, owner of
the auto rickshaw being Respondent No.1 herein, remained absent and
the claim before the Tribunal went ex-parte against him. The Insurance
Company being Respondent No.2 herein, had filed written statement
before the Tribunal and objected to the claim and denied the liability.
5. The Tribunal considered the evidence of Appellant No.1, who is
the father of the deceased and the claimant's witness Pramol Saxena,
who was with the deceased at the time of accident being eye-witness,
documentary evidence such as FIR, spot panchnama, post-mortem
notes, cause of death certificate and observed that the negligence of the
driver in the motor vehicle accident was established and proved.
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6. With respect to the evidence regarding the income and future
expected earnings of the deceased, the Tribunal despite the evidence
that the deceased was a bright student and could have reached the post
of Executive and despite the evidence on record in the shape of the
witness Nitin Singh about the fact that he was M.B.A from Banaras
Hindu University and got the appointment as Senior Officer with a
monthly salary of Rs.15,200/- and observing that, there was no
evidence to the fact that the deceased was the only son of the
applicants and that the father of the deceased was working as Senior
Pharmacist in K.E.M Hospital, Mumbai, which aspect would have to be
considered while ascertaining the dependency and future loss caused to
the Appellants and considering the uncertainty of life and the then
condition for getting jobs and the saturation in the certain filed, held
that the say of the claimant that the deceased would have earned
Rs.15,000/- per month cannot be the basis to come to the conclusion
about the dependency of the appellants. Further, observing that there
was no evidence to establish that the deceased was the only son, on the
basis of the submission on behalf of the Insurance Company that there
was no question of applying any particular multiplier and there was no
expected future income of the deceased, the Tribunal denied the claim
that the deceased would have been in a position to earn ample amount
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of pay in a month and that the appellants would be entitled to claim of
Rs.10,00,000/- as compensation. The Tribunal observed that the
deceased was unmarried and considering future uncertainty of life and
age of the appellants and the fact that the deceased had not completed
his M.B.A course held that there was no question of considering any
specific monthly income of the deceased and the future loss caused to
the appellants. The Tribunal concluded that since the appellants, who,
at the time of filing the claim petition were of 53 to 50 years of the age
and having lost their son who was 22 years taking education in M.B.A
course, instead of applying any particular multiplier, and the expected
income, it would be just and proper to award lump sum compensation
of Rs.2,00,000/- including the No Fault Liability. The Tribunal went on
to add that even-though the Appellants had lost their young son, the
young son having a bright career could not be expected to support
them after his marriage even if he would have survived. The Tribunal
has held the owner of the vehicle as well as Insurance Company jointly
and severally liable to pay the compensation to the Appellants as well
as interest @ 7.5% p.a. from November-2003.
7. I have heard Mr. Mendon, learned Counsel for the Appellants and
Mr. Ketan Joshi, learned Counsel for Respondent No.2 and with their
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able assistance. I have perused the records and papers and considered
the rival contentions.
8. Mr. Mendon, learned Counsel for the appellant would submit
that, the Appeal has been filed by the parents of the deceased for
enhancement of compensation. Learned Counsel would submit that
the Tribunal failed to appreciate that the deceased was a bright student
and was enterprising and could have earned substantially as done by
his classmates in the same category had he lived. Drawing the
attention of this Court to the record and proceedings, Mr. Mendon,
would refer to the deposition witness of PW-3 viz, Mr. Nitin Singh, who
passed the MBA examination from Banaras Hindu University in the
year 2000 and got appointment as senior officer in Indorama Synthetics
India Limited at Bombay, got a monthly salary of Rs. 15,200/- at the
initial stage and also produced the appointment letter. It can be seen
from the said deposition that Mr. Nitin Singh was the nephew of the
deceased and passed out the MBA around the same time as the
deceased would have passed out i.e. in the year 2000. It is also
observed from the deposition that the salary of Mr.Nitin Singh was
revisable every year and his salary at the time of giving evidence was
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Rs. 17,200/-. Referring to this evidence Mr. Mendon would submit that
the Tribunal ought to have considered this evidence and at least could
have considered Rs.15,200/- as the deceased's potential earning
capacity. In support, Mr. Mendon relies upon the decisions of the
Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Deo
Patodi and Ors.1 and also the decision in the case of S. Vasanti and
another Vs. Adhiparasakthi Engineering College and another 2 in
support of his contentions and submits that the income of the similarly
placed persons as the deceased ought to be considered by the Tribunal
while determining deceased potential earning capacity.
9. Learned Counsel for the Appellants would further submit that the
compensation is required to be calculated considering the age of the
deceased. He would submit that the Tribunal has grossly erred in
ignoring that the deceased was 22 years of age and had a bright career.
Learned Counsel refers to the decision of the Hon'ble Supreme Court in
the case of Sarla Verma & Ors Vs. Delhi Transport Corporation and Anr.3
and in particular to paragraph 18 of the said decision to emphasise this
point. He further refers to paragraph 42 of the said decision and
1 2009 ACJ 2359
2 2023 ACJ 100
3 (2009) 6 SCC 121
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submits that considering the age of the deceased the operative
multiplier would be 18, which would need to be considered for
computing the compensation. Learned Counsel also refers to the
constitution Bench's decision of the Hon'ble Supreme Court in the case
of National Insurance Co. Ltd. Vs. National Insurance Company Limited
Vs. Pranay Sethi and Ors.(supra) and in particular to paragraph 61 of
the judgment to submit that as declared by the Hon'ble Supreme Court
multiplier has to be applied as per the age of the deceased and
accordingly the compensation has to be worked out.
10. Learned Counsel further submits that it is the mandate of Section
168 that compensation is required to be determined by the Tribunal or
the Court which is just reasonable and proper. Learned Counsel submits
that there is no embargo or restriction on the powers of the Tribunal or
the Court to grant an amount more than the amount claimed. Learned
Counsel relies upon the decision of the Hon'ble Supreme Court in the
case of A. P. S.R.T.C Vs. M. Ramadevi and Ors. 4. Learned Counsel also
refers to the case of Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmedabad
Municipal Transport Service5 in support of his contentions.
4 2008 (3) SCC 379
5 2013 ACJ 2733
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11. Learned Counsel for the Appellants submits that since it has been
proved that the deceased classmate had received an income of Rs.
15,200/- per month, the same can be considered as the minim. Learned
Counsel has submitted the following calculation for computation of the
compensation that the Appellants claimed aught to be awarded to
them:-
"Age of deceased 22 years
Income per month Rs. 17,200.00
uture Prospect 40% Rs. 6,080.00
Rs. 21,280.00
Claimants are in Numbers
Personal Expenses ½ Rs. 10,640.00
Dependency
Multiplier for age 22 is 18
Calculation of Compensation
(10,640 X 12 X 13)= Rs.22,98,240.00
Loss OF Consortium Rs.40,000/- with 10%
increase for every 3 years for 4 claimants Rs. 88,000.00
Funeral Expenses 15000/- with 10%
Increase for every 3 years Rs. 20,000.00
Loss of Estate Rs. 15,000/- with
10% increase for every 3 years. Rs. 20,000.00
Rs.24,26,260.00"
12. With respect to the interest to be awarded to the Appellants,
learned Counsel draws the attention of this Court to Section 171 of the
MV Act and submits that simple interest at the rate from the date of
making the claim should be awarded to the Appellants and not what
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the Tribunal has done. Learned Counsel submits that the claimants
would be entitled to received compensation as calculated above along
with interest at least at the rate of 9% p.a from the date of application
till realisation of the compensation and not from November 2003.
13. On the other hand, although Mr.Joshi does not dispute that rash
and negligent driving of the driver of the said auto rickshaw led to the
death of Mr.Sujeet Singh, however, with respect to quantum, learned
Counsel would submit that since the deceased was a student who had
not completed his course, no income can be anticipated, and therefore,
the Tribunal did not consider the claim of the Appellants as proposed.
14. There is no dispute that the deceased was traveling in the auto-
rickshaw, which met with an accident, which was caused due to the
negligence of the driver of the auto rickshaw. There is also an eye
witness to the same. The only issue that arises is with respect to
quantum of compensation and primarily with respect to the income of
the deceased. There is no dispute that the deceased was 22 years old
and had completed the first year of the MBA course. The evidence of
Mr. Nitin Singh, is not in dispute. He was a colleague and nephew of
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the deceased in the MBA course at Banaras Hindu University, got an
appointment letter as senior officer in Indorama Synthetics India
Limited at a monthly salary of Rs.15,200/- which was revisable
upwards. This evidence has neither been disputed nor been
controverted on behalf of the insurance company. Respondent No.1
though served is neither represented nor is present. It is gathered from
the Tribunal order that even before the Tribunal the Respondent No.1-
owner of the vehicle was not represented and the matter was heard ex-
parte against him. Despite clear and uncontroverted evidence that Mr.
Nitin Singh was appointed at a salary of Rs. 15,200/-, the Tribunal has
completely ignored the same on the ground that there was no evidence
to the fact that the deceased was the only son of the Applicants. In my
view, the Tribunal has grossly erred in failing to consider this vital
evidence for deciding the compensation that would be payable to the
Appellants. The Tribunal has completely misdirected itself towards
considerations such as uncertainty of life, the condition of getting jobs
and saturation in the field for none of which the Tribunal has cited any
instances or adduced any evidence to reject the claim of the Appellants.
Also, despite the clear mandate of the Hon'ble Supreme Court in the
case of Sarla Verma & Ors Vs. Delhi Transport Corporation and Anr.
(supra) and National Insurance Company Limited Vs. Pranay Sethi and
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Ors.(supra), as will be elucidated later, the Tribunal has failed to apply
multiplier considering the age of the deceased and has on irrelevant
considerations ordered a lump sum compensation of Rs. 2,00,000/-.
15. There is no dispute that the Appellants are the legal
representatives of the deceased and as such entitled to be awarded
compensation under the MV Act. The Hon'ble Supreme Court in the
case of Oriental Insurance Co. Ltd. Vs. Deo Patodi and Ors. (supra) and
also in the case of S. Vasanti and another Vs. Adhiparasakthi
Engineering College and another(supra) has clearly observed that when
the deceased or his classmates who had been pursuing the same
education and started earning then the income that they earned at the
time of appointment can be considered as the income of the deceased.
Paragraphs 10 and 11 of the decision in the case of S. Vasanti and
another Vs. Adhiparasakthi Engineering College and another(supra) is
usefully quoted as under:-
"10. A perusal of the affidavit filed by the appellant
No.1 before the Tribunal would reveal that she had
specifically stated that two of her son's classmates were
gainfully employed with well known companies in India
and were drawing monthly income of Rs.39,869/- and
Rs.44,588 respectively. It will be relevant to note that
neither the Tribunal nor the High Court has adverted to
these averments made by appellant no.1.
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11. It could thus be seen that the deceased-S.
Sathyanarayan was 23 years of age at the time of
accident. He was a qualified Engineering graduate and
was pursuing an MBA degree at SRM University to
further his professional capabilities. In view of the
specific averments made in the affidavit as to the
employment prospects of the classmates of the
deceased-S. Sathiyanarayan and also his young age at
the time of accident, we are of the considered view that
the Tribunal and the High Court have erred in not giving
due weightage to the same. Had the deceased-S.
Sathiyanarayan not met with the unfortunate accident,
he would have surely drawn a salary equivalent to that
of his classmates or at least an amount near the said
amount. Furthermore, the deceased was the only issue
of the appellants. Since no parent should have to suffer
through the death of their children, much less their only
child, we are of the considered view that the monthly
income as calculated by the High Court is inadequate."
16. In this view of the matter, the PW-3 viz. Mr. Nitin Singh having
been examined and having stated that after completing MBA, he was
recruited as a senior officer at Indorama Synthetics India Ltd and was
appointed on a salary of Rs. 15,200/- per month, in my view
Rs.15,200/- ought to have been considered as the income of the
deceased.
17. Further, it would also be pertinent to refer the Section 168 of the
MV Act, which mandates that the amount of compensation that should
be determined should be just. Section 168 of the M. V. Act is quoted as
under :
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"168. Award of the Claims Tribunal. -- (1) On receipt of an
application for compensation made under section 166, the
Claims Tribunal shall, after giving notice of the application to
the insurer and after giving the parties (including the
insurer) an opportunity of being heard, hold an inquiry into
the claim or, as the case may be, each of the claims and,
subject to the provisions of section 162 may make an award
determining the amount of compensation which appears to it
to be just and specifying the person or persons to whom
compensation shall be paid and in making the award the
Claims Tribunal shall specify the amount which shall be paid
by the insurer or owner or driver of the vehicle involved in
the accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for
compensation under section 140 in respect of the death or
permanent disablement of any person, such claim and any
other claim (whether made in such application or otherwise)
for compensation in respect of such death or permanent
disablement shall be disposed of in accordance with the
provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the
award to the parties concerned expeditiously and in any case
within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person
who is required to pay any amount in terms of such award
shall, within thirty days of the date of announcing the award
by the Claims Tribunal, deposit the entire amount awarded in
such manner as the Claims Tribunal may direct."
17.A Also in this regard the decision of the Hon'ble Supreme
Court in the case of A. P. S. R. T. C. vs. M. Ramadevi and Ors. (supra) is
also pertinent. Paragraphs 8 and 9 are usefully quoted as under:-
"8. Learned counsel for the respondents on the other
hand submitted that there is no embargo on the
Tribunal or the High Court awarding compensation
exceeding the amount claimed. It was also submitted
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that the interest was reduced to 9% from 12% as fixed
by the Tribunal. It was, therefore, submitted that there
was no infirmity in the High Courts order.
9. In Nagappa vs. Gurdial Singh and Ors (2003 (2)
SCC 274) para 21 as follows:
c1. For the reasons discussed above, in our view, under
the MV Act, there is no restriction that the
Tribunal/court cannot award compensation amount
exceeding the claimed amount. The function of the
Tribunal/court is to award just compensation which is
reasonable on the basis of evidence produced on record.
Further, in such cases there is no question of claim
becoming time-barred or it cannot be contended that by
enhancing the claim there would be change of cause of
action. It is also to be stated that as provided under sub-
section (6) of Section 158 can be treated as an
application for compensation under the MV Act. If
required, in appropriate cases, the court may permit
amendment to the claim petition."
18. Further the decision in the case of Sanobanu Nazirbhai Mirza &
Ors. vs. Ahmedabad Municipal Transport Service (supra) is also
relevant. Paragraphs 8 and 9 whereof are usefully quoted as under:-
"8. In view of the aforesaid fact, we have to hold that it
would be just and proper for this court to take a sum of
Rs.5000/- as the monthly income of the deceased
having regard to the nature of job that the deceased was
performing as a polisher, which is a skilled job, wherein
the annual income would come to Rs.60,000/-. This
Court in judgment of Santosh Devi V. National Insurance
Co. Ltd.,2012 ACJ 1428 (SC), has held that an addition
of 30% increase must be applied for increase in total
income of the deceased over a period of time if he had
been alive. Further, in the recent decision in Rajesh v.
Rajbir Singh, 2013 ACJ 1403 (SC), this Court while
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referring to the case of Santosh Devi (supra) held that in
the case of self-employed persons or persons with fixed
wages, in case the deceased victim was below 40 years,
there must be an addition of 50% to the actual income
of the deceased while computing future prospects of the
deceased. Keeping in view the five dependants of the
deceased in the case on hand, 1/5th amount is to be
deducted for personal expenses. Having regard to the
age of the deceased as 25, as mentioned in the post
mortem report, which age is taken by both the Tribunal
as well as the High Court, and keeping in mind the life
expectancy of the deceased, multiplier of 20 must be
applied to the multiplicand for the purpose of
quantifying loss of dependancy. Further, following the
decision of this Court in Rajesh V. Rajbir Singh (supra),
Rs.1,00,000/- must be added under the head of loss of
consortium and Rs.1,00,000 under the head of loss of
care and guidance for minor children. Further, it was
held by this Court in the case referred to supra that Rs.
25,000/- must be awarded for funeral expenses as this
Court has made observations in the case referred to
supra that the Tribunals have been frugal in awarding
the compensation under the head 'funeral expenses' and
hence, we award Rs.25,000 under the head of funeral
expenses to the claimants/legal representatives. Hence,
the total compensation has to be assessed under the
various heads as follows :
Sl.No. Heads Calculations
(i) Income Rs.5,000 p.m.
(ii) 50 percent of above to be Rs.7,500 p.m.
added as future prospects
[Rs.5,000 + Rs.2,500]
(iii) 1/5th of (ii) to be deducted as Rs.6,000 p.m.
per personal expenses of the
deceased [Rs.7,500 -
Rs.1,500]
(iv) Compensation after multiplier Rs. 14,40,000
of 20 is applied [Rs.6,000 x 12
x 20]
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(v) Loss of consortium Rs. 1,00,000
(vi) Loss of care and guidance for Rs. 1,00,000
minor children
(vii) Funeral and obsequies Rs. 25,000
expenses
(viii) Pain, loss and suffering Rs. 25,000
(ix) Medical expenses Rs. 3,000
(x) Attendant charges and Rs. 3,000
transportation expenses
Total compensation awarded Rs.16,96,000
The amount of Rs.16,96,000/-as calculated above,
under the various heads of losses, should be awarded in
favour of appellants-claimants, though there is no
specific mention regarding enhancing of compensation
as in the appeal it has been basically requested by the
appellants to set aside the judgment and order passed
by the High Court in the appeal filed by the respondent.
We must follow the legal principles of Nagappa Vs.
Gurudayal Singh & Ors. 2003 ACJ 12 (SC) at para 7,
wherein with respect to the provisions of the M.V. Act,
this Court has observed as under:
"(7) .....There is no restriction that compensation could
be awarded only up to the amount claimed by the
claimant. In an appropriate case, where from the
evidence brought on record if the Tribunal/court
considers that the claimant is entitled to get more
compensation than claimed, the Tribunal may pass such
award. The only embargo is -- it should be "just"
compensation, that is to say, it should be neither
arbitrary, fanciful nor unjustifiable from the evidence.
This would be clear by reference to the relevant
provisions of the MV Act. Section 166 provides that an
application for compensation arising out of an accident
involving the death of, or bodily injury to, persons
arising out of the use of motor vehicles, or damages to
any property of a third party so arising, or both, could
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be made (a) by the person who has sustained the injury;
or (b) by the owner of the property; or (c) where death
has resulted from the accident, by all or any of the legal
representatives of the deceased; or (d) by any agent
duly authorised by the person injured or all or any of
the legal representatives of the deceased, as the case
may be."
9. In view of the aforesaid decision of this Court, we
are of the view that the legal representatives of the
deceased are entitled to the compensation as mentioned
under the various heads in the table as provided above
in this judgment even though certain claims were not
preferred by them as we are of the view that they are
legally and legitimately entitled for the said claims.
Accordingly we award the compensation, more than
what was claimed by them as it is the statutory duty of
the Tribunal and the appellate court to award just and
reasonable compensation to the legal representatives of
the deceased to mitigate their hardship and agony as
held by this Court in a catena of cases. Therefore, this
Court has awarded just and reasonable compensation in
favour of the appellants as they filed application
claiming compensation under Section 166 of the M.V.
Act. Keeping in view the aforesaid relevant facts and
legal evidence on record and in the absence of rebuttal
evidence adduced by the respondent, we determine just
and reasonable compensation by awarding a total sum
of Rs. 16,96,000/- with interest @ 7.5% from the date
of filing the claim petition till the date payment is made
to the appellants."
19. Therefore, in my view, there is no embargo or restriction on this
Court to grant more than the amount claimed by the Appellants and
that just, reasonable and proper compensation is to be awarded.
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20. The Hon'ble Supreme Court in the case of Sarla Verma & Ors Vs.
Delhi Transport Corporation and Anr. (supra) has held that the
compensation is required to be calculated considering the age of the
deceased. Paragraph 18 of the said decision is usefully quoted as
under:-
"18. Basically only three facts needs to be
established by the claimants for assessing compensation
in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependents.
The issues to be determined by the Tribunal to arrive at
the loss of dependency are:
(i) additions/deductions to be made for arriving at
the income;
(ii) the deduction to be made towards the personal
living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the
age of the deceased.
If these determinants are standardised, there will be
uniformity and consistency in the decisions. There will
be lesser need for detailed evidence. It will also be
easier for the insurance companies to settle accident
claims without delay"
21. Therefore, it is clear from the above that the compensation is to
be decided on the basis of the age of the deceased, the income of the
deceased and the number of dependents and the loss of dependency is
to be determined on the basis of the additional deductions to be made
for arriving at the income, the deduction to be made towards the
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personal living expenses of the deceased and the multiplier to be
applied with reference to the age of the deceased. Paragraph 42 of the
decision in the case of Sarla Verma & Ors Vs. Delhi Transport
Corporation and Anr.(supra) which refers to the application of
multiplier that is to be used is usefully quoted as under:-
"42. 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 ((1994)
2 SCC 176), Trilok Chandra ((1996) 4 SCC 362) and
Charlie ((2005) 10 SCC 720), 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
five years, that is M-17 for 26 to 30 years, M-16 for 31
to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45
years, and M-13 for 46 to 50 years, then reduced by two
units for every five years, that is, M-11 for 51 to 55
years, M-9 to 56 to 60 years, M-7 for 61 to 65 years and
M-5 for 66 to 70 years".
22. The aforesaid has been confirmed by the constitution Bench of
the Hon'ble Supreme Court in the case of National Insurance Company
Limited Vs. Pranay Sethi and Ors.(supra) . Paragraph 61 of the said
decision is usefully quoted as under:-
"61. In view of the aforesaid analysis, we proceed to
record our conclusions:-
(i) The two-Judge Bench in Santosh Devi, 2012 ACJ
1428 (SC), should have been well advised to refer the
matter to a larger Bench as it was taking a different
view than what has been stated in Sarla Verma, 2009
ACJ 1298 (SC), a judgment by a coordinate Bench. It is
because a coordinate Bench of the same strength cannot
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take a contrary view than what has been held by
another coordinate Bench.
(ii) As Rajesh, 2013 ACJ, 1403 (SC), has not taken note
of the decision in Reshma Kumari, 2013 ACJ 1253 (SC),
which was delivered at earlier point of time, the
decision in Rajesh is not a binding precedent.
(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
towards 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.
(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."
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23. It is therefore, quite clear that multiplier has to be applied and
that too to compute the compensation as per the age of the deceased.
24. Mr.Joshi, learned Counsel for Respondent No.2-Insurance
Company has also tendered the calculations on behalf of the Insurance
Company. Learned Counsel would submit that as far as the submissions
on behalf of the Appellant-Claimant with respect to the working of the
compensation are concerned, except with respect to the heads
pertaining to "Loss of Estate" and "Funeral Expenses", the Insurance
Company should not have any particular objection. However, with
respect to those two heads, learned Counsel would submit that the
computation of loss of estate should be Rs. 16,500/-, and funeral
expenses should be Rs. 16,500/-, on the basis of the decision of the
Hon'ble Supreme Court in the case of National Insurance Company
Limited Vs. Pranay Sethi and Ors.6 Learned counsel would therefore,
submit that the amounts of Rs. 20,000/- each as proposed against the
aforesaid two heads may not be appropriate.
25. Mr. Mendon, learned Counsel for the Appellant strongly opposes
the submission and submits that the same is not in line with the
6 2017 ACJ 2700
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decision in the case of N. Jayasree and Others Vs. Cholamandalam MS
General Ins. Co. Ltd.7.
26. I have perused the decision of the Hon'ble Supreme Court in the
case of N. Jayasree and others (supra). Paragraphs No. 34 and 35 of the
said decision are usefully quoted as under:-
"34. A three-Judge Bench of this court in United India
Insurance Co. Ltd v. Satinder Kaur, 2020 ACJ 2131 (SC),
after considering Pranay Sethi, has awarded loss of
spousal consortium at the rate of Rs.40,000 and loss of
parental consortium to each child at the rate of
Rs.40,000/-. The compensation under these heads also
needs to be increased by 10 per cent. Thus, loss of
spousal consortium is awarded at Rs.44,000, and loss of
parental consortium is awarded to the two children at
the rate of Rs.44,000 each; total : Rs.88,000.
35. Thus, the appellants are entitled to compensation
as under:
(i) Towards loss of dependency Rs. 84,16,815
(ii) Loss of estate Rs. 16,500
(iii) Funeral expenses Rs. 16,500
(iv) Loss of spousal consortium Rs. 44,000
(v) Loss of parental consortium Rs. 88,000
---------------------
Total Rs.85,81,815"
27. It is observed from the above quoted paragraphs that although
the Hon'ble Supreme Court awarded loss of spousal consortium as well
as parental consortium at the rate of Rs. 40,000/- each, the
7 (2021) ACJ 2685
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compensation with respect to loss of estate and funeral expenses was
Rs. 16,500/- each and not raised to Rs. 20,000/- as claimed by Mr.
Mendon. I am, therefore, not inclined to accept the arguments of Mr.
Mendon in this regard and the amount towards loss of estate and
funeral expenses be taken as Rs. 16,500/- each.
28. Mr. Joshi has also raised an objection that in the event the
compensation amount is enhanced by this Court, pursuant to Section 7
of the Maharashtra Court Fees Act-1959, the Appellants would need to
pay a deficit Court Fees. That to my mind is a consequence in law
which the Appellants would have to follow.
29. Mr. Mendon had drawn the attention of this Court to Section 171
of the Motor Vehicles Act to submit that interest should be paid from
the date of the claim and not from November 2003. In this regard,
Section 171 of the MV Act is usefully quoted as under:-
"171. Award of interest where any claim is allowed ----
Where any Claims Tribunal allows a claim for
compensation made under this Act, such Tribunal may
direct that in addition to the amount of compensation
simple interest shall also be paid at such rate and from
such date not earlier than the date of making the claim
as it may specify in this behalf."
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30. It is clear from the above provision that the Court can direct in
addition to the amount of compensation simple interest at such rate
and from such date not earlier than the date of making the claim as it
may specify in this behalf. This means that the Court has discretion to
award the simple interest on the compensation not earlier that the date
of the claim. Awarding interest from the date when the matter was
posted for hearing without written statement may cause injustice to the
already delayed claim. I am, therefore, of the view that, interest be
awarded from the date of the claim application. The Tribunal,
therefore, in my view, has erred in awarding interest at the rate of 7.5%
from November 2003. With respect to the rate of interest that has been
awarded by the Tribunal, I am not inclined to interfere with the said
rate as 7.5 % is a rate which is more than the bank interest rate
available as on date and therefore, no interference is required with
respect to the rate of the interest awarded to the Appellants.
31. In view of the above discussion, this Court is of the view that the
Appellants are entitled to total compensation of Rs.24,19,240/- as per
the following calculation:-
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Sr Particulars Amount
No.
1 Monthly Income Rs.15,200/-
2 Future Prospects (40% of Rs.15200/-) Rs. 15,200/- + Rs.6,080 =
Rs.21,280/-
3 Deduction of personal expenses (50% of Rs Rs. 10,640/-
21,280/-), since the deceased was bachelor
4 Compensation on Dependency Rs.10,640 x 12 x 18 =
(Multiplier of 18) Rs 22,98,240/-
5 Loss of Estate Rs.16,500/-
6 Funeral Expenses Rs.16,500/-
7 Loss of Consortium Rs. 44,000/- x 2
(As there are 2 Applicants) = Rs.88,000/-
TOTAL COMPENSATION (4+5+6+7) Rs.24,19,240/-
COMPENSATION AWARDED BY LD. MACT Rs.2,00,000/-
MUMBAI
Rs.22,19,240/-
32. (a) The judgment and award dated 18 th July 2005 of the
M.A.C.T. is hereby accordingly modified.
(b) As, admittedly, Rs.2,00,000/- awarded by the Tribunal
including NFL has already been withdrawn by the
Appellants, let the balance of the compensation of Rs.
22,19,240/- be paid by the Respondent No.2-Insurance
Company to the Appellants in equal proportion together
with interest @ 7.5% p.a. from the date of the Claim
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Petition till the payment and/or realisation, subject to
payment of deficit Court Fees, within a period of six
weeks.
(c) The modified award be drawn up accordingly.
33. Appeal is allowed in the above terms. Parties to bear their own
costs.
(ABHAY AHUJA, J.)
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