Bombay High Court
Suresh Devrao Gayakwad And Ors vs Sunil Murlidhar Bhosale And Ors on 19 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:18400-DB
First Appeal No.2080/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2080 OF 2020
1. Suresh Devrao Gayakwad,
Age 52 years, Occ. Labour,
R/o Ganori, Tq. Phulambri,
Dist. Aurangabad
2. Sangita Suresh Gayakwad,
Age 42 years, Occ. Household,
R/o Ganori, Tq. Phulambri,
Dist. Aurangabad
3. Kiran Suresh Gaikwad,
Age 20 years, Occ. Education,
R/o Ganori, Tq. Phulambri,
Dist. Aurangabad
4. Suvarna Rameshwar Salunke,
Age 27 years, Occ. Household,
R/o Shirodi (Bk.), Tq. Phulambri,
Dist. Aurangabad ... APPELLANTS
(Original Claimants)
VERSUS
1. Sunil Murlidhar Bhosale,
Age 43 years, Occ. Driver,
R/o Plot No.12, Flat No.3,
Eden Plaza, Opp. of Sahara Vaibhav
Jatvada Road, Harsul,
At Post Tq. Dist. Aurangabad
Mob. No. 9403534185
2. Sunil Ramrao Chavan,
Age major, Occ. Owner,
R/o E, H.No.62/6, Mayur Nagar,
Hudco, N-11, Opp. SPI Sainiki School,
Aurangabad
Mob. No. 9890239555
R-1 & R-2 are serving at
New High School, Kingaon,
Tq. Phulambri, Dist. Aurangabad
First Appeal No.2080/2020
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3. The New India Assurance Co. Ltd.,
Through its Branch Manager,
Branch office at Adalat Road,
Aurangabad ... RESPONDENTS
(Original Respondents)
.......
Mr. S.B. Rajebhosale, Advocate for appellants
Mr B.V. Dhage, Advocate for respondents No.1 and 2
Mr. S.R. Bodade, Advocate for respondent No.3
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 26th July, 2024
Date of pronouncing judgment : 19th August, 2024
JUDGMENT (PER R.G. AVACHAT, J.) :
This is an appeal under Section 173 of the Motor
Vehicles Act, 1988 (MV Act for short). The appellants are the
original petitioners/ claimants in Motor Accident Claim Petition
(MACP), No.603/2018. The appellants claim to be legal
representatives of Kalyan (deceased). The appellants No.1
and 2 were the parents while appellants No.3 and 4 were
unmarried brother and married sister respectively of deceased
Kalyan.
2. It was the case of the appellants that, deceased
Kalyan was 22 years of age. He was serving with Aakar Tools
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Ltd., Unit-II, C-5/6, MIDC Industrial Area, Waluj, Aurangabad at
a monthly salary of Rs.24,100/-.
3. On 23/5/2018 by 8.00 p.m., deceased Kalyan along
with his colleague (deceased Amol Chavan) were returning on
a motorbike from their work place after completing their duty.
Amol was riding the motorbike while the deceased Kalyan was
a pillion rider. A Swift car bearing Registration No.MH-20/CH-
6671 knocked them down. The car was driven in rash and
negligent manner by respondent No.1. The car belonged to
respondent No.2. The respondent No.3 Insurance Company
had granted the car insurance cover for a period from
27/3/2018 to 26/3/2019.
4. The appellants (original claimants) made a claim
for Rs.6 Crores, as compensation.
5. The claim was resisted by the respondents on
many grounds. The respondent No.3 Insurance Company had
raised the defence of a contributory negligence on the part of
motorbike rider.
6. The appellants- petitioners to the claim petition
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adduced the evidence. The Tribunal, on appreciation of the
same, granted the petitioners compensation amounting to
Rs.13,90,800/- with interest @ 9% p.a. from the date of filing of
the petition till realization of the amount of compensation. The
amount of compensation was even directed to be apportioned
in terms of clause (3) and (4) of the operative part of the
award. The amount of compensation was directed to be paid
by the respondents No.1 to 3 jointly and severally.
7. Being aggrieved and dissatisfied with the quantum
of compensation awarded under the impugned award, the
appellants (original petitioners) have preferred this appeal.
8. Heard. The learned Advocate for the appellants
would submit that, the deceased Kalyan was serving at a
monthly pay of Rs.24,100/-. He died bachelor. He was the
sole bread winner in the family of the appellants. The
deceased was a graduate. He knew technical know-how. He
had bright future. A salary certificate (Exh.39) issued by the
employer was produced in evidence. A witness was also
examined in proof of the same. The Tribunal ought to have
relied on the said evidence and granted compensation with
addition of 50% therein towards future prospects. According to
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learned Advocate, the Tribunal did not award compensation
under other conventional heads, such as loss of consortium,
medical expenses, transportation expenses etc. He relied on
the following authorities :
(1) The New India Assurance Co. Ltd. Vs. Shweta Dilip
Mehta & ors. [ 2010 (2) ALL MR 222 ]
(2) Sanubanu Nazirbhai Mirza & ors. Vs. Ahmedabad
Municipal Transport Service [ 2013 AIR (SCW) 5800 ]
(3) National Insurance Company Limited Vs. Pranay Sethi
AIR 2017 SC 5157
(4) Royal Sundaram Alliance Insurance Company Ltd. Vs.
Smt. Varsha Rajendra Pache & ors.
(2018) 2 ALL MR 852 ]
9. The learned Advocate put on record his written
arguments besides the abovesaid authorities.
10. The learned Advocate for the Insurance
Companies too placed on record his written submissions.
11. The learned Advocate for the Insurance Company
would submit that, the Tribunal has granted just and
reasonable amount of compensation. The deceased died
bachelor. The appellants did not place on record appointment
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order of the deceased or any other document in the nature of
Bank Passbook or salary slip indicating the so called employer
was depositing/ transmitting the alleged quantum of salary to
the Bank Account of the deceased every month. According to
learned Advocate, the Tribunal has, therefore, rightly
considered the annual income of the deceased notionally.
Since the deceased died bachelor, 50% of his income has
been deducted towards personal and living expenses. The
Tribunal also granted 40% addition towards future prospects.
The learned Advocate ultimately submitted for dismissal of the
appeal.
12. Before the Tribunal, a defence of contributory
negligence was raised by the Insurance Company. It has been
answered in the negative by the Tribunal and the respondent
Insurance Company has not preferred appeal against the
award or Cross-Objection, therefore, the said defence no
longer subsists for us to address.
13. The question in this appeal is, as to quantum of
compensation. The tribunal granted the compensation
assuming notional income of the deceased at Rs.9000/- per
month. The F.I.R. lodged by father of the deceased contained
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averments that both the deceased were on their way back
home after duty with Aakar Tools Ltd., Unit-II, C-5/6, MIDC
Industrial Area, Waluj, Aurangabad, was over. The deceased
was riding pillion. The Tribunal granted the compensation
under various heads as under :
Sr. Compensation under Head Awarded by
No. Tribunal
A Total income per year of the deceased Rs.9000 x Rs.1,08,000/-
Kalyan Gayakwad 12 =
B 40% to be added in total income per year Rs.1,08,000 Rs.1,51,200/-
of the deceased towards future prospects + 43,200/- =
C 50% deductions towards personal and 1,51,000 / 2 Rs.75,600/-
living expenses of deceased as he was = 75,600/-
Bachelor
D Pecuniary loss after applying multiplier of 75,600 x 18 Rs.13,60,000/-
18 as the deceased was above 22 years old =
E Add " Funeral expenses Rs.15,000/-
F Add: Loss of Estate Rs.15,000/-
Total sum payable to the claimants Rs.13,90,800/-
14. The learned Advocate contended that, in view of
directions of the Constitution Bench judgment of the Apex
Court in case of National Insurance Company Ltd. Vs. Pranay
Sethi (supra), the Tribunal ought to have added 50% of the
annual income of the deceased towards future prospects. He
would further submit that, considering the number of
dependents, deduction towards personal and living expenses
of the deceased ought to have been one third and not one half.
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Relying on the judgment of Division Bench of this Court in case
of New India Assurance Co. Ltd. Vs. Shweta Mehta (supra), he
would submit that, loss of future income as a head of
compensation applies to all persons, whether earning or not at
the time. He would further submit that, the Tribunal/ Court has
every jurisdiction to grant compensation in excess of what has
been urged for in the petition when it finds the grant of excess
compensation would be just and reasonable. Turning to the
income of the deceased, and particularly the document at
Exh.58, he would submit that, the employer of the deceased
had issued the appellant salary details which were as under :
Basic salary ... Rs. 9,176=00
Other Allowance ... Rs.12,000=00
Conveyance allowance ... Rs. 2,924=00
-------------------------------------------------
Total salary ... Rs.24,100=00 p.m. Total Gross
--------------------------------------------------
15. According to him, an employee of the very
Company was examined in proof of the said salary certificate,
issued on 13/8/2018.
16. The Tribunal, in our view, assigned good reasons
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for not relying on the said certificate. The Tribunal observed
that the said certificate was issued three months after the
death of Kalyan. It was issued on the request of the
appellants. Neither the Bank Passbook of the deceased nor
any other document was tendered in evidence to indicate the
employer of the deceased would transfer each month's salary
amount to the Bank Account of the deceased. No appointment
letter, attendance register etc. were produced in evidence.
17. In our view, the Tribunal rightly did not rely on the
salary certificate (Exh.58). We, therefore, called upon learned
Advocate for the appellant and offered him opportunity to
produce such documents as an additional evidence in appeal.
He expressed his inability. According to him, the employer
now may not issue such document. By passage of time, the
documents may have not been in existence. Then he would
submit that, the deceased was working as a contract labour.
18. When the F.I.R. recites that both the deceased
were returning from their work place after having completed
duty with Aakar Tools Ltd., Unit-II, C-5/6, MIDC Industrial Area,
Waluj, Aurangabad and one of the appellant testified the same
on oath, we do not find any reason to disbelieve their case that
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the deceased was really in employment with the said
Company. The question is, the quantum of salary of the
deceased. At the cost of repetition, it is stated that, the same
has rightly been discarded by the Tribunal. We, therefore, now
propose to have recourse to rates of basic pay and special
allowance for the period 1/1/2018 to 30/6/2018 (Revised
Minimum Wages - Maharashtra which are as under.
The Rates of Basic Pay &Special Allowances for the period (01-
01-2018 to 30-06-2018)
(REVISED MINIMUM WAGES - MAHARASHTRA)
BASIC Special Min. wage Min. wage Semi Min. wage Min. wage
Allowan Unskilled skilled skilled Highly skilled
-ces
Sr. Nature of Mode Un- Semi- Skilled Highly Per Per day Per Per Per Per Per Per
No. Industries skilled skilled skilled month month day month day month day
2 Automobile P.M. 4800 5100 5500 0 + 4200 9000 346.154 9300 357.69 9700 373.08 0 0
repairing
The same are produced on record and marked as Exhibit 'X'
for identification. As per Item No.2 therein, the minimum
wages for a skilled labour in Automobile repairing industry
were Rs.9700/- per month. We, therefore, propose to take
Rs.9700/- as monthly income/ salary of the deceased, instead
of Rs.9000/- and propose to work out the compensation.
19. The directions given by the Constitution Bench of
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the Apex Court in the case of Pranay Sethi (supra) were as
under :
(i) . . . . . . . . . . . . . . . . . . . . . . .
(ii) . . . . . . . . . . . . . . . . . . . . .. .
(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 for 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
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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.
20. In paragraph No.39 of the judgment in case of
Pranay Sethi (supra), following are the observations of the
Apex Court :-
39. Before we proceed to analyse the principle for
addition of future prospects, we think it seemly to
clear the maze which is vividly reflectible from
Sarla Verma, Reshma Kumari, Rajesh and Munna
Lal Jain. Three aspects need to be clarified. The
first one pertains to deduction towards personal and
living expenses. In paragraphs 30, 31 and 32, Sarla
Verma lays down:-
"30. Though in some cases the deduction to be
made towards personal and living expenses is
calculated on the basis of units indicated in
Trilok Chandra4, the general practice is to
apply standardised deductions. Having
considered several subsequent decisions of this
(2003) 3 SLR (R) 601 Court, we are of the
view that where the deceased was married, the
deduction towards personal and living expenses
of the deceased, should be one-third (1/3rd)
where the number of dependent family
members is 2 to 3, one-fourth (1/4th) where the
number of dependent family members is 4 to 6,
and one-fifth (1/5th) where the number of
dependent family members exceeds six.
31. Where the deceased was a bachelor and the
claimants are the parents, the deduction follows
a different principle. In regard to bachelors,
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normally, 50% is deducted as personal and
living expenses, because it is assumed that a
bachelor would tend to spend more on himself.
Even otherwise, there is also the possibility of
his getting married in a short time, in which
event the contribution to the parent(s) and
siblings is likely to be cut drastically. Further,
subject to evidence to the contrary, the father is
likely to have his own income and will not be
considered as a dependant and the mother alone
will be considered as a dependant. In the
absence of evidence to the contrary, brothers
and sisters will not be considered as
dependants, because they will either be
independent and earning, or married, or be
dependent on the father.
32. Thus even if the deceased is survived by
parents and siblings, only the mother would be
considered to be a dependant, and 50% would
be treated as the personal and living expenses
of the bachelor and 50% as the contribution to
the family. However, where the family of the
bachelor is large and dependent on the income
of the deceased, as in a case where he has a
widowed mother and large number of younger
non- earning sisters or brothers, his personal
and living expenses may be restricted to one-
third and contribution to the family will be
taken as two-third."
21. In view of the aforesaid legal position, we do find
the Trial Court to have rightly deducted 50% of the income of
the deceased towards his personal and living expenses. In
this case, the claimants were parents and younger brother of
the deceased. The deceased died bachelor is undisputed. The
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father (appellant No.1) was just 52 years of age. He might
have been earning. We do not propose to give further reasons
in view of the aforesaid observations of the Apex Court. From
reading of the impugned judgment and award, what can be
seen to have been missed out is non-grant of compensation on
the ground of consortium. The appellants No.1 and 2 being
parents of the deceased, are entitled to Rs.40,000/- each
under this head. A sum of Rs.15,000/- towards funeral
expenses and loss of estate has rightly been granted. Now the
amount of compensation is worked out considering the
monthly income of the deceased to be Rs.9700/- per month, as
under :-
Rs.9700 x 12 = Rs.1,16,400/-
+ 40% - rs.46,560/- = Rs. 1,62,960/-
minus 50% - Rs.81,480/- = Rs. 81,480/- x 18
= Rs.14,66,640/-
+ Loss of Consortium Rs. 40,000/- x 2 =Rs. 80,000/-
Total sum payable to the claimants:- Rs.15,46,640/-
minus amount awarded by Tribunal =Rs.13,90,800/-
(if already paid)
= Rs. 1,55,840/-
22. The amount which is in excess of the one awarded
by the Tribunal be paid to the appellants No.1 to 3 in the ratio
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of 5 : 3 : 2 with interest @ 9% p.a. from the date of claim
petition to the date of realization.
Appellant No.4 is married sister of the deceased.
No amount of enhanced compensation is, therefore, directed
to be paid to her.
23. The First Appeal is partly allowed in above terms.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
