Bombay High Court
V. Jaya Lakshmi And Anr vs P.R. Bafna And Ors on 11 January, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
2024:BHC-AS:1805
First Appeal No. 1693 of 2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1693 OF 2013
1. V. JAYA LAKSHMI )
An Adult, Indian Inhabitant, )
Residing at Flat No.A-5, State Bank of India )
Officer's Complex, Rajendra Nagar, )
Opp. Rajendra Nagar Telephone Exchange, )
P.S.Kadam Kaun, District - Patna, U.P. )
)
2. V. L. N. Ganapathy )
An Adult, Indian Inhabitant )
Residing at Flat No.A-5, State Bank of India )
Officer's Complex, Rajendra Nagar, )
Opp. Rajendra Nagar Telephone Exchange, )
P.S.Kadam Kaun, District - Patna, U.P. )
Representing through their Power of Attorney )
Holder Nikhil Bhat, Aged 30 years, )
Occupation : Service, Residing at 4, Vasant )
Vihar Apartment, Ideal Colony, Paud Road, )
Pune. )... APPELLANTS
Versus
1. P. R. BAFNA )
An Adult, Indian Inhabitant, )
Occupation : Business, Residing at A/21-3, )
Siddharth Apartment, Shankar Sheth Road, )
Pune. )
)
2. MANIK BAPUJI SHEJWAL )
Age Adult, Occupation : Service, )
R/o.175, Bhekrai Nagar, Hadapsar, Pune )
)
3. THE ORIENTAL INSURANCE CO. LTD. )
821/A-2, Oswal Badhu Building, )
Opp. 7 Loves Hotel, J.N.Road, Pune. )...RESPONDENTS
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First Appeal No. 1693 of 2013.doc
CORAM : ABHAY AHUJA, J.
RESERVED ON : 17th AUGUST, 2023
PRONOUNCED ON : 11th JANUARY, 2024
JUDGMENT :
1. This Appeal has been filed by the Original Claimants under section
173 of the Motor Vehicles Act, 1988 (the "M.V. Act") challenging the
judgment and award dated 28th June, 2010 passed by the Motor Accident
Claims Tribunal, Pune (the "Tribunal") in Motor Accident Claim Petition
No.660 of 1999 partly allowing the Claim Petition of the Appellants
directing the Respondents No.1 and 3 to jointly and severally pay a
compensation amount of Rs.2,29,266/- (inclusive of N.F.L.) to the
Appellants along with proportionate costs and interest @ 7% p.a. from the
date of the petition till realization of the entire amount. The Appeal was
admitted by an order of this Court dated June 13, 2019.
2. The challenge in this appeal is to the contributory negligence
attributed to the deceased and also to the quantum of compensation with
respect to the last drawn salary of the deceased as well as the multiplier
applied, future prospects, loss of consortium etc. in addition to the
deduction due to contributory negligence.
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3. The relevant facts are that on 30th June, 1998 at around 9:30 a.m.,
Ravi Kishore (the deceased), being the son of the Appellants was going on
a Hero Honda motorcycle bearing registration No. BR-1K/2059 and when
he reached Bhosari, M.I.D.C., T Block, 131, Dist. Pune, one tanker bearing
registration No. MH-12/7903 came from the opposite direction in high
speed without following traffic rules and gave a dash to the motorcycle of
the deceased in which he was dragged by the said vehicle. The deceased
sustained multiple injuries and he was admitted to Lokmanya Hospital for
treatment. However the same day he succumbed to his injuries.
4. It is the case of the Appellants that the deceased was aged 25 years
at the time of the accident, was highly qualified and having a bright future
and was getting a salary of Rs.19,120/- and was the only son of the
Appellants and therefore the Appellants filed a claim petition seeking
compensation of Rs.27,00,000/-.
5. The claim was contested by the Respondent No.3 insurance
company by filing their Written Statement denying liability stating that the
Appellants have not produced on record the driving license of the
deceased as well as of the driver of the offending vehicle. The Respondent
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No.3 alleged that this was a case of contributory negligence and prayed
for dismissal of the claim.
6. On the issue whether the driver of the offending tanker vehicle
drove it in a rash and negligent manner at the time of the accident and
whether the deceased died in the accident due to such driving, the
Tribunal held that from a perusal of the spot panchnama it clearly
reflected that the accident was not caused due to the sole negligence of
the tanker driver and held that the negligence on the part of the deceased
and driver of tanker was 50%:50%.
7. On the issue of compensation, after noting that the Appellants claim
that the deceased was qualified and had completed his M.B.A. and had
taken admission for a computer software course at NIIT, and at the time of
the accident he was working as marketing executive at Softcell Trade and
Technologies Ltd. and as per evidence led by Appellant No.2 his total gross
emoluments were Rs.5614/- per month and he was getting Rs.4934/- in
hand. That to prove the income of the deceased, the Appellants examined
the Corporate Head of the said company Raghunath Pandurang Gavade,
being AW2, who deposed before the Tribunal that the deceased had drawn
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last salary of Rs.7000/- per month. However, the Tribunal recording that
no salary certificate was produced on record, held that the income of the
deceased was Rs.5494/- per month and after deducting 50% of the
amount of Rs.5494/- towards personal expenses as the deceased was a
bachelor, computed the amount to Rs.2747/-. The Tribunal applied the
multiplier of 13 to the said amount and calculated the dependency
compensation to be Rs.4,28,532/-, plus loss of estate of Rs.10,000/- and
funeral expenses of Rs.5000/- totaling to Rs.4,43,532/- less deduction of
50% towards contributory negligence and awarded the Appellants a total
compensation of Rs.2,29,266/- along with interest at the rate of 7% p.a.
from the date of the petition till its realization. The Tribunal held that
since the driver of the offending vehicle was holding a valid and effective
license, the Respondent No.3 Insurance company would be jointly and
severally liable along with the Respondent No.1 owner to make payment
of the compensation.
8. Accordingly, the Tribunal directed the Respondents No.1 and 3 to
jointly and severally pay a compensation amount of Rs.2,29,266/-
(inclusive of N.F.L.) to the Appellants along with proportionate costs and
interest @ 7% p.a. from the date of the petition till realization of the
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entire amount of compensation to be divided as follows, an amount of
Rs.1.5 lakhs along with proportionate cost and interest to be paid to the
Appellant No.1 and remaining amount along with proportionate cost and
interest to be paid to Appellant No.2.
9. The Respondents No.1 to 3 have not challenged the award.
10. However the Original Claimants being aggrieved and dissatisfied by
the Impugned Judgment and Award only partly allowing the Claim
Petition of the Appellants as noted above have preferred this appeal.
11. On the issue of contributory negligence of the deceased, learned
Counsel for the Appellants has submitted that there was no material in the
spot panchnama indicating that there was contributory negligence on
behalf of the deceased or that he was rash and negligent. Learned
Counsel has relied on the decision in the case of Ashvinbhai Jayantilal
Modi v. Ramkaran Ramchandra Sharma and Another1 submitting that in a
similar case where the offending truck hit the deceased from behind and
he was dragged by the offending truck up to a distance of about 25 ft, the
Hon'ble Supreme Court held that to be able to create this kind of
1 (2015) 2 SCC 180
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enormous effect on the two wheeler of the deceased, the offending truck
must have been traveling at a fairly high speed and that its driver did not
have sufficient control over his vehicle. The Court further held that the
driver of the offending truck should have been aware that that he was
driving the heavy motor vehicle and taken sufficient caution. That there
was no direct evidence to show negligence on the part of the deceased and
the Hon'ble Supreme Court set aside the contributory negligence
apportioned to the deceased. Learned Counsel has also relied on the
decision in the case of Pramodkumar Rasikbhai Jhaveri v. Karmasey
Kunvargi Tak and Others2 in which the Hon'ble Supreme Court held that
the question of contributory negligence arises when there has been some
act or omission to the claimant's part, which has materially contributed to
the damage caused, and is of such a nature that it may properly described
as "negligence". Negligence ordinarily means breach of a legal duty to
care, but when used in the expression "contributory negligence" it does
not mean breach of any duty. It only means failure by a person to use
reasonable care for the safety of either himself or his property, so that he
becomes blameworthy in part as an "author of his own wrong".
2 2002 ACJ 1720.
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12. On the issue of enhancement of compensation, Learned Counsel for
the Appellants submitted that the salary certificate of the deceased dated
23rd January, 1999 indicating the deceased's three months gross salary
which was produced on record would clearly suggest that the monthly last
drawn salary of the deceased was about Rs.7000/-per month which has
been confirmed in the AW2's deposition. The learned Counsel for the
Appellants has relied on the decisions of the Hon'ble Supreme Court in the
cases of National Insurance Company Limited v. Pranay Sethi & Ors. 3 and
M.K. Gopinath v. J. Krishna and Ors.4 and has also tendered a Chart for
Enhancement of Claim across the Bar with respect to increasing the
annual salary after deduction to be increased from Rs.2747/- per month
(50% of Rs.5494/-) to Rs.6373/- per month, future prospects of 50% of
the monthly salary to be added, loss of estate to be enhanced from
Rs.10,000/- to Rs.16,500/-, to add loss of consortium of Rs.44,000/-, to
enhance funeral expenses from Rs.5000/- to Rs.16,500/-, to add medical
expenses of Rs.71,390/- and to apply multiplier of 18 and not 13 as
applied by the Tribunal and enhance the rate of interest from 7% p.a. to
10 % p.a.
3 (2017) 16 SCC 680.
4 (2015) 11 SCC 235.
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13. The learned Counsel for the Respondent No.3 on the other hand
defended the judgment and award of the Tribunal and submitted that this
appeal ought to be dismissed.
14. I have heard learned counsel for the Appellants and learned counsel
for the Respondent No. 3. I have also perused the papers and proceedings
in the matter and considered the rival submissions.
15. On the issue of contributory negligence of the deceased, it is clear
from the principles laid down by the Hon'ble Supreme Court in the case of
Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and Others
(supra) in which the Hon'ble Supreme Court held that "contributory
negligence" only means failure by a person to use reasonable care for the
safety of either himself or his property, so that he becomes blameworthy in
part as an "author of his own wrong". Further in the case of Meera Devi
and Another vs. Himachal Pradesh Road Transport Corporation and
Others5, the Hon'ble Supreme Court has observed that to prove the
contributory negligence, there must be cogent evidence. The word 'cogent'
means clear, logical and convincing.
5 (2014) 4 SCC 511
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16. I have examined the decision of the Tribunal, post mortem report,
cause of death certificate of deceased and the police papers including Spot
Panchnama in the matter. The Spot Panchnama records that at the scene
of the accident, the offending tanker was standing at the spot of the
accident with its front part facing south. It was moving from north to the
south. The offending tanker was standing on the north left side of the road
and below its rear right wheel the deceased's motorcycle was lying on the
right side with its front head pump and meter broken. The jerking of the
deceased was caught in the right tyre and the motorcycle of the deceased
was blown 14 feet away.
17. The Tribunal in its Judgment and Award held that a minute perusal
of the Spot Panchnama clearly showed that the deceased came under rear
wheel of the tanker and there is a turn on the spot and that it clearly
establishes that the offending tanker might have passed its major portion
on that road after the turn, the deceased might have dashed to its back
side tyre. If the situation on the road is considered, it also appears that the
tanker was coming from the northern side and proceeding towards the
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southern side. At the same time the deceased was proceeding from south
to north. The Tribunal therefore held that perusal of the Spot Panchnama
clearly reflects that the accident was not caused due to the sole negligence
on the tanker driver and that the deceased was equally liable for the
accident.
18. However, it stands to reason that if the major part of the tanker of
the body of the offending tanker had already crossed while turning, how
the deceased would have anticipated that the rear right wheel would have
dragged him along with his vehicle. As can be visualized from the fact of
the mangled remains and the damage to the motorcycle as mentioned in
the Spot Panchnama, there was damage to the motorcycle and the
deceased was dragged to a distance of 14 ft. by the offending tanker. In
such circumstances, it was in my view not possible for the deceased to use
reasonable care or safety for himself. Therefore he could not have been
held to be blameworthy or the author of his own wrong. There is no
cogent evidence to prove the contributory negligence or that he was rash
and negligent. Also as held by the Hon'ble Supreme Court in the case of
Ashvinbhai Jayantilal Modi v. Ramkaran Ramchandra Sharma and
Another(supra), the driver of the offending tanker should have been aware
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that he was driving the heavy motor vehicle and taken sufficient caution.
As in the said case even in the facts of the case at hand there is no direct
evidence to show negligence on the part of the deceased.
19. In the light of the above discussion, I am, therefore, of the view
that, the finding of the Tribunal with respect to the attribution of
contributory negligence of accident to the extent of 50% to the deceased,
deserves to be set aside and is hereby set aside. This Court is of the view
that the accident was caused due to the rash and negligent driving of the
offending tanker driver.
20. On the issue of quantum of compensation, I have examined the
Salary Certificate dated January 23, 1999 admittedly containing the
deceased's three months gross salary which was produced on record and
also the Examination-in-chief of Mr. Raghunath Pandurang Gavade, AW2,
who was working as Corporate Head in the company in which the
deceased was employed and his Cross-examination by Advocate for
Respondent No.3. From the same, it emerges that the monthly last drawn
gross salary of the deceased was about Rs.7000/-per month which has
been confirmed in the AW2's deposition and not Rs.5494/- per month as
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held by the Tribunal. The Tribunal also erroneously held that the
multiplier to be applied in this case was 13.
21. On the issue of the multiplier to be applied, as per the decision of
the Hon'ble Supreme Court in the case of Sarla Verma v. Delhi Transport
Corporation and others6 this Court is of the view that the correct multiplier
to be applied in the present case would be 18 and not 13 as held by the
Tribunal as the deceased was 25 years old at the time of the accident.
22. The Hon'ble Supreme Court in the case of National Insurance
Company Limited v Pranay Sethi and Ors. (supra) has clearly laid down
the law with respect to future prospects and held that 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, that the
conventional heads with respect to loss of estate, loss of consortium and
funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs 15,000/-
respectively and that the said amounts should be enhanced at the rate of
10% in every three years. Paragraph 61 of the said decision is usefully
quoted as under:-
6 2009 ACJ 1298 (Supreme Court).
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"61. In view of the aforesaid analysis, we proceed to record our
conclusions:-
(i) The two-Judge Bench in Santosh Devi 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, a judgment
by a coordinate Bench. It is because a coordinate Bench of the same
strength cannot take a contrary view than what has been held by
another coordinate Bench.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari,
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 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.
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. In Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru
Ram & Ors.7 the Hon'ble Supreme Court has observed that filial
consortium is the right of the parents to compensation in the case of an
accidental death of a child as the same causes great shock and agony to
the parents. It has also been observed that the Motor Vehicles Act is a
beneficial legislation aimed at providing relief to the victims or their
families, in cases of genuine claims. In case where a parent has lost their
minor child, or unmarried son or daughter, the parents are entitled to be
awarded loss of consortium under the head of Filial Consortium.
24. Ergo and in the light of the principles laid down by the Hon'ble
Supreme Court as above, this Court is of the view that the Appellants are
entitled to compensation as per the following computation:
Sr. No. Particulars Amount
1. Annual Salary after deduction Rs.76,476/-
(Rs.6373/- x 12)
2. Less personal and living expenditure Rs.38,238/-
(50% of annual salary after
deduction)
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3. Add future prospects (50% of annual Rs.38,238/-
salary after deduction)
5. Total (1-2+3x4) Rs.13,76,568/-
6. Add Loss of estate Rs.16,500/-
7. Add Loss of consortium Rs.44,000/-
8. Add Funeral expenses Rs.16,500/-
9. Add Medical expenses Rs.71,390/-
10. TOTAL COMPENSATION Rs.15,24,958/-
(7+8+9+10)
25. In the light of the above, the Appellants are entitled to a total
compensation of Rs.15,24,958/- inclusive of amount of compensation
under 'no-fault' liability along with interest thereon at the rate of 7% per
annum to be paid by the Respondents No.1 and 3 jointly and severally,
from the date of filing of the petition till realization, to be distributed to
the Appellants in the manner and proportion as mentioned in the
judgment and award dated 28 th June, 2010 of the Motor Accident Claims
Tribunal, Pune in Motor Accident Claim Petition No.660 of 1999, less the
amount already withdrawn, if any.
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26. The judgment and award dated 28 th June, 2010 of the Motor
Accident Claims Tribunal, Pune in Motor Accident Claim Petition No.660
of 1999 be modified to the above extent.
27. The appeal of the Appellants is allowed as above. No order as to
costs.
(ABHAY AHUJA, J.)
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