Case: NAMRATA ANIL YADAV AND ORS Vs. BHUPENDRA MANOHAR BHOIR AND ORS


Decision:
1[ds]17. The evidence of AW-2, Vikas Kisan Kauthale, shows that he has a travel business and on 1st February 2011 he was coming from Pune in his Sumo car just behind the deceaseds car. On 1st February 2011, at about 11.50 PM, the deceased was driving his Motor Car. AW-2 was driving his Sumo car, which was just behind the motor car of the deceased. It is further deposed by AW-2 that the deceased was driving very slowly and with moderate speed. Said motor tempo bearing No. MH-08 H-3533 was going with high and excessive speed and in a rash and negligent manner and suddenly the Tempo stopped in the middle of the road due to a speed breaker, took a right turn without any warning signal or turning indicator, and dashed into a tree on the other side of the road. Due to the sudden stoppage of tempo, the motor car of the deceased collided with the Tempo. As a result of the said accident, the deceased sustained a head injury as well as other grievous injuries. He was taken to Shivaji Hospital by the Police, but due to his grievous injuries, he died on 2nd February 2011. AW-2 further deposed that, due to said accident, he stopped his Sumo car on the side of the road and rushed to the spot and pulled out the injured from the car with the help of other people gathered there. At that time, the deceased was alive and told the persons gathered there to take him to a private hospital. Within a few minutes, the police arrived on the scene and took the injured person. AW-2 deposed that at that time he gave his mobile number to police. He had taken the cell number of the father of the deceased from the cell phone of the deceased. AW-2 had called the deceaseds father from AW-2s cell phone. He deposed that the police never called him for giving a statement.18. The evidence of AW-2 is not shaken in the cross-examination conducted on behalf of the Respondent No.2.A perusal of the cross-examination of AW-2 shows that except for bare denials, nothing is extracted and therefore, the evidence of AW-2 has not been shaken in the cross-examination and nothing is brought on record in his cross-examination to discredit this witness.19. As far as the evidence of AW-3, Amit Nair, is concerned, he has deposed that he was driving his motorcycle behind the motor car of the deceased on the left side of the road. The deceased was going at a very slow and moderate speed with full care and caution behind the said Tempo, which was being driven at a high and excessive speed and in a rash and negligent manner. AW-3 has also deposed that suddenly the Tempo stopped in the middle of the road due to a speed breaker and took right turn without any warning signal or turning indicator and dashed into a tree on the other side of the road. Due to this, the motor car of the deceased collided with the motor tempo and as a result the said accident took place. After the said accident, AW-3 immediately stopped his motorcycle on the side of the road and rushed to the spot. He also helped to pull out the deceased from the car with the help of others. The deceased was alive at that time. AW-3 and told the people gathered there to take him to any nearby private hospital. After few minutes, the police arrived over and took the injured to the hospital. Police took the mobile number of AW-3, but never called him for giving a statement. His cross-examination is on the lines similar to that of AW-2. Thus, it is clear that the evidence of AW-3 has also remained unshaken in the cross-examination.20. An analysis of the evidence of AW-2 and AW-3 shows that they are strangers to each other. Neither was connected with the deceased or his family. Both are chance witnesses and can safely be said to be independent witnesses. Importantly, they are the eye witnesses to the incident. The evidence of each is consistent with that of the other and nothing adverse has been brought in their cross-examination. Their evidence has remained intact.The contents of spot panchnama dated 2nd February 2011 (Exhibit 32) clearly corroborates the deposition of AW-2 and AW-3 regarding the manner in which the accident in question had taken place.23. The contention raised by the learned counsel appearing for the Respondent No.2 that the names of AW-2 and AW-3 are not appearing in the police record and therefore, they cannot be termed as eye witnesses is entirely without merit. Although it has come in the evidence of AW-2 and AW-3 that there were many persons gathered at the spot of incident, the police papers produced on record do not show the same. Both AW-2 and AW-3 have specifically deposed that they had given their cell numbers to the police but the police had never contacted them. We have already observed that AW-2 and AW-3 were not known to the deceased or his family members and that they are just chance witnesses and independent witnesses. It is also significant to note that inspite of service, the owner of the offending Tempo, i.e. Opponent No.1/Respondent No.1, failed to appear before the learned Tribunal as well as in this Court.24. It is further significant to note that Respondent No.2, i.e. Opponent No.2-Insurance Company, has examined the driver of the offending truck, Babu Pandhari Pidge, as witness No.1 for Opponent No.2. His evidence shows that his duty hours were from 9.00 a.m. to 10.00 p.m. He was residing at Kongaon at the house of the owner of the Tempo. On 1st February 2011, after loading goods in the Tempo at Kongaon, Bhiwandi, he proceeded in the Tempo towards Sanpada, Vashi, where the tempo was unloaded. Thereafter, the Tempo driver began the return journey to Kongaon, Bhiwandi to the house of owner of the tempo. The accident took place between 11.00 p.m. and 11.30 p.m. Pidge deposed that at the spot of the incident there were two speed breakers at a distance of 100 ft on the road and speed of the Tempo was 30-35 kms. per hour. After the Tempo crossed the first speed breaker and as it was about to cross the second speed breaker, the deceaseds car came from behind at great speed and dashed the tempo from behind. This caused the Tempo to dash against the divider and it then went off the road and dashed into the tree. He further deposed that, thereafter, the driver-side door of the Tempo was flung open due to the force of the impact and he fell out of the Tempo and sustained a head injury. He was taken to a hotel near the spot of the incident and owner of the Tempo, Bhupendra Bhoir, was informed about the accident. The owner of the Tempo came to the scene and Pidge was taken to the hospital. At that time, Pidge was unconscious. On the next day, in the evening, he was taken to the police station to record his statement. In the cross-examination, he admitted that his duty hours were 9.00 a.m. to 10.00 p.m. and the accident took place at about 11.00 p.m. to 11.30 p.m. He further admitted that he had not produced any record to show that he sustained any injuries on account of the accident.25. Pidge was cross examined on various aspects, including the following: (1) that as everybody in the vicinity was knowing the owner of the Tempo, the owner got the crime falsely registered against the driver of the car with the help of police; (2) the driver of the Tempo and the owner of the Tempo failed to give any assistance to the accident victim and left the spot; (3) the incident took place at about 11.50 p.m., and as he was late he was driving in excessive speed; and (4) there were three labourers also riding in the Tempo.26. Thus, the examination in chief and cross examination of the driver of the offending Tempo clearly establish the following aspects:I. The duty hours of the tempo driver were from 9.00 a.m. to 10.00 p.m.II. On the day of the incident, i.e. on 1st February 2011, after loading the goods in the Tempo, the Tempo driver took the tempo from Kongaon, Bhiwandi to Sanpada, Vashi and unloaded the same at Sanpada and thereafter the Tempo was returning to Kongaon, Bhiwandi. The loading and unloading was done by three labourers. The Tempo driver was working from 9.00 am till the accident took place at about 11.50 p.m., i.e. beyond his duty hours.III. Although the owner of the tempo came to the spot of the accident, he as well as the driver of the offending Tempo had not taken care to take the deceased to a hospital.IV. Although three labourers were in the Tempo, they were not examined and they are not even referred to in the police record.27. All the above factors, read with the evidence of AW-2 and AW-3, clearly show that the preponderance of probability is that the accident had taken place as the Tempo was driven at high speed; that, perhaps due to the speed breaker, the Tempo suddenly stopped without any warning; and that due to the sudden stoppage of the Tempo, the car driven by the deceased collided with the Tempo.28. It is significant to note that although several persons had gathered at the spot of the incident, the Respondent No.2-Insurance Company only examined the driver of the vehicle, who is clearly an interested witness.29. The record before us indicates a very strange set of facts. The FIR in question was not lodged by the driver or the owner of the vehicle. It was lodged by one Pramod Vitthal Megal, i.e. a constable of the Shil-Daighar police station. The police failed to record the statement of the persons who were present at the time of the incident. AW-2 and AW-3 have specifically deposed that they were at the spot when the accident took place. They gave their contact numbers to the police. However, police never called them. The police did not record their statements. The spot panchnama also shows that the Panchas, too, were not eye-witnesses to the accident. PC Vitthal Megals statement at Exhibit 30 is the basis on which the FIR was registered. In this, Megal claims that he was on patrolling duty with one police constable Shri Patil, and while they were proceeding towards Desai Naka by Sheel-Kalyan Road, they saw the car of the deceased colliding with the Tempo from behind, when the speed of the offending Tempo was reduced at or near the speed breaker at the accident spot. But this statement of PC Mengal is in direct conflict with the station diary.30. Three aspects emerge from this: first, that the version of the police constable Megal is entirely contradicted by the polices own document, the station diary and in unworthy of credence. Second, that there is some substance to the contention that the FIR was got up or engineered at the instance of the vehicle owner for reasons that are immediately obvious. Third, that the only two parties affected by this finding, viz., the insurer and the vehicle owner have not even in arguments before us (let alone in any formal Cross Objections) assailed this finding. We are not assessing the FIR in this judgment. Yet, it is now clear that the only purpose of introducing this factual element (about PC Megal being on patrol duty) was to raise the claim of negligence on the part of the deceased, the victim of the accident. That this was the intent behind the FIR is evident from the last line of the impugned order emphasized above, viz., the rejection of the submission that the accident was solely due to the negligence of the deceased.31. The Supreme Court in the case of Dulcina Fernandes vs Joaquim Xavier Cruz (2013) 10 SCC 646 as well as in Bimla Devi vs Himachal RTC (2009) 13 SCC 530  held that the Claimants are not in a position to establish conclusively by strict proof the manner in which accident had taken place. The Claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. What is necessary is to take holistic view of the matter. The plea of negligence is required to be decided by the learned Tribunal on the touchstone of the preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt.32. We are satisfied that there is high probability that the accident had taken place solely due to rash and negligent driving of the driver of the offending Tempo. We are recording this finding in view of following aspects:-I. The evidence of eye witnesses i.e. Vikas Kisan Kauthale (AW-2), Amit Venugopal Nayar (AW-3) clearly shows that the deceased was going very slowly and with moderate speed and said motor Tempo was going with high and excessive speed and with rash and negligent manner and suddenly the motor Tempo stopped on the middle of the road, due to speed breaker and took right turn without any signal and dashed on tree on the other side of the road. Due to this, motor car of the deceased collided and suddenly dashed on the motor Tempo due to sudden stoppage of Tempo.II. Contents of Spot panchnama (Exhibit 32) corroborate with the evidence of AW-2 and AW-3.III. Although owner of the offending Tempo and the driver were available, the FIR by taking false contention that the accident took place due to negligence of the deceased was lodged by the police constable Pramod Vithal Mengal.IV. The learned Tribunal by giving cogent reasons have come to the conclusion that said police constable Pramod Vithal Mengal was not the eye witness and false FIR was lodged by the police.V. There are strong reasons to believe that as the owner and driver of the offending Tempo are the local residents, due to pressure of local people false FIR was lodged against the deceased for helping the said owner and the driver.VI. The contents of FIR, spot panchnama and other police record clearly show that false record is created to support the contention that the accident had taken place due to the negligence of the deceased.VII. The evidence of the driver of the offending Tempo namely Babu Pandhari Pidge show that there were three labourers in the offending Tempo. They were not examined.VIII. The Respondent No.2 failed to examine any independent witness. The Respondent No.2 only examined driver of the offending vehicle. However, he is interested witness and his evidence is not trustworthy.Thus, we hold that the accident had taken place solely due to rash and negligent driving of the Tempo driver.33. It is to be noted that the learned Tribunal has recorded contradictory findings. The learned Tribunal has specifically accepted the evidence of AW-2 and AW-3 and accepted their version regarding manner in which the accident had taken place. The learned Tribunal specifically recorded finding that the police constable who lodged the FIR against the deceased was not the eye witness and false FIR was lodged. While recording this finding the learned Tribunal has made specific reference to the evidence of AW-2 and AW-3. In this background, the learned Tribunal recorded finding of 60% contributory negligence of the deceased and 40% of the driver of the offending Tempo on the basis of spot panchnama (Exhibit 32). The learned Tribunal accepted the evidence of AW-2 and AW-3 and they have deposed in detail about the manner in which accident had taken place. Their evidence clearly show that the accident had taken place solely due to rash and negligent driving of the driver of the offending Tempo. We have already discussed hereinabove that the situation as emerging from spot panchnama is consistent with the evidence of AW-2 and AW-3. Thus, the accident had taken place entirely due to rash and negligent driving of the driver of the offending Tempo. The finding recorded by the learned Tribunal regarding contributory negligence is contrary to the evidence on record.34. As learned Tribunal has recorded finding regarding contributory negligence, we deem it appropriate to make reference to the legal position concerning the same.34.1 In Pramodkumar Rasikbhai Jhaveri vs Karmasey Kunvargi Tak & Ors, (2002) 6 Supreme Court Cases 455  the Supreme Court has held that contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be 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 the 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. In paragraph 9 and 10 of Pramodkumar Rasikbhai Jhaveri vs Karmasey Kunvargi Tak & Ors (Supra) it has been held as follows:9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendants negligence is decided. The standard of a reasonable man is as relevant in the case of plaintiffs contributory negligence as in the case of defendants negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 73 ALJR 403  is worthy of quoting:A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property.10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling Vs. Cooper [1931] A.C. 1 at page 9, Lord Hailsham said:Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances.34.3 In Mohammed Siddhique & Anr vs National Insurance Company Ltd & Ors AIR 2020 Supreme Court 520:AIR Online 2020 SC 29 , the Supreme Court was considering the effect of violation of traffic rules by the driver of the vehicle who suffered the accident and whether he will be guilty of contributory negligence. The relevant portion of the said judgment is reproduced hereinbelow for ready reference:13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 128 194-C inserted by the Amendment Act Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.14. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.35. Following principles are emerging from the above judgments of the Supreme Court.(i) The contributory negligence arises when there is some act or omission on the claimants/deceaseds part, which has materially contributed to the damage caused. It means failure by a person to use reasonable care for the safety of either himself or his property.(ii) A finding of contributory negligence is to be arrived at by appreciating the evidence on record regarding the aspect whether the claimant or deceased contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case.(iii) If one party places another in a situation of danger by his negligence, which compels that other party to act quickly in order to extricate himself, failure of taking those quick actions does not amount to contributory negligence.(iv) Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence, unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances.36. We have already recorded a finding by appreciating the evidence on record that the accident had taken place entirely due to rash and negligent driving of the driver of the offending Tempo. Even if the evidence on record is analysed in the light of above principles, then also, it is clear that this is not a case where deceased had contributed to the accident. The evidence of AW-2 and AW-3 i.e. eye witnesses of the accident, which has been accepted by the learned Tribunal and which has been discussed in detail by us in earlier part of this Judgment clearly show that the accident had taken place entirely due to rash and negligent driving of the driver of the offending Tempo. In this case, there is no negligence which can be attributed to the deceased due to which the accident had taken place. Therefore, there is no question of contributory negligence.37. As we have come to the conclusion that the accident had taken place solely due to rash and negligent driving of the driver of the offending Tempo, the finding recorded by the learned Tribunal that the accident took place due to contributory negligence of the deceased and the driver of the offending Tempo and the proportion of the negligence of the deceased and the driver of the offending Tempo was respectively 60% and 40% is required to be quashed and set aside. In view of our finding that the accident had taken place entirely due to the negligence of the driver of the offending Tempo, the Claimants i.e. Appellants are entitled for the compensation to the extent of 100%.In the Appeal memo, grounds are raised regarding some of the aspects concerning quantum of compensation but during submission, no arguments were advanced with respect to the same. However, as noted above while preparing draft of this judgment, we noted some decisions on the question of contributory negligence and quantum of compensation. Therefore, for giving fair opportunity to both the parties, we again heard the matter on 17th March 2022, 24th March 2022 and 29th March 2022. The submissions made by both the parties were noted in the earlier part of this judgment. Before considering the said aspects, it is necessary to set out legal position as emerging from various judgments of the Supreme Court.39. The Supreme Court in the matter between United India Insurance Company vs Shila Datta & Ors (2011) 10 SCC 509 has held that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute. The said legal position is reiterated by Supreme Court in Dulcina Fernandes & Ors vs. Joaquin Xavier Cruz & Anr. (2013) 10 SCC 646 . The said principles are also applicable to the appeal challenging the award passed by the learned Tribunal. Thus as the present proceedings are not adversarial in nature but statutory determination of the compensation after due enquiry in accordance with the statute, we deem appropriate to examine the evidence on record for arriving at just compensation. However, we will also consider the submission of the Appellants that the Respondents have not filed their Appeal and therefore findings recorded by the learned Tribunal are binding on him and in any case should not be disturbed.40.2 The Supreme Court in the matter between Sarla Verma (SMT) & Ors vs Delhi Transport Corporation & Anr (2009) 6 SCC 121 ,  in paragraph No.18 held as follows:Basically only three facts need 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 of the age of the deceased.If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.40.3 The Supreme Court in the matter between United India Insurance Company Ltd vs Satinder Kaur alias Satwinder Kaur & Ors (2020) SCC OnLine SC 410 by making reference to various judgments of the Supreme Court reiterated the principles for assessment of compensation in case of death as involved by judicial dicta from paragraphs 33 to 66. The relevant paragraphs are reproduced hereinbelow:33. Relevant principles for assessment of compensation in cases of death as evolved by judicial dicta.36 In order to provide uniformity and consistency in awarding compensation, the following steps are required to be followed :–Step 1 (Ascertaining the multiplicand)The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.Step 2 (Ascertaining the multiplier)Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.Step 3 (Actual calculation)The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the loss of dependency to the family. Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs. 10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/-should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.(a) Deduction for personal and living expenses37. The personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the family. In Sarla Verma (supra) (paras 30, 31 and 32), this Court took the view that it was necessary to standardize the deductions to be made under the head personal and living expenses of the deceased.38. Accordingly, it was held that :where the deceased was married, the deduction towards personal and living expenses should be 1/3rd if the number of dependent family members is two to three;1/4th if the number of dependent family members is four to six; and1/5th if the number of dependent family members exceeds six.(b) Determination of Multiplier41. With respect to the multiplier, the Court in Sarla Verma (supra), prepared a chart for fixing the applicable multiplier in accordance with the age of the deceased, after considering the judgments in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas & Ors., U.P.S.R.T.C. & Ors. v. Trilok Chandra & Ors., and New India Assurance Co. Ltd. v. Charlie & Ors.42. The relevant extract from the said chart i.e. Column 4 has been set out hereinbelow for ready reference :–						Age of deceased			Multiplier (Column 4)							Upto 15 years			-							15 to 20 years			18							21 to 25 years			18							26 to 30 years			17							31 to 35 years			16							36 to 40 years			15							41 to 45 years			14							46 to 50 years			13							51 to 55 years			11							56 to 60 years			9							61 to 65 years			7							Above 65 years			5			(d) Future Prospects50. In the wake of increased inflation, rising consumer prices, and general standards of living, future prospects have to be taken into consideration, not only with respect to the status or educational qualifications of the deceased, but also other relevant factors such as higher salaries and perks which are being offered by private companies these days. The dearness allowance and perks from which the family would have derived monthly benefit, are required to be taken into consideration for determining the loss of dependency.59. In view of the aforesaid analysis, we proceed to record our conclusions:59.3. 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.59.4. 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.(e) Three Conventional Heads53. In Pranay Sethi (supra), the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. Loss of estate, loss of consortium and funeral expenses.54. The Court held that the conventional and traditional heads, cannot be determined on percentage basis, because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration. The Court held that 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 Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.41. We will apply the above principles to the facts of the present case.42. The evidence of Appellant No.3 i.e. Applicant No.3-father of the deceased shows that the deceased was serving as Senior Captain in Starship Maritime Services Pvt Ltd and he was earning US$ 10,500 per month i.e. Rs.5,00,000/- approximately per month. The said evidence is corroborated by AW-4- Sandesh Jivaji Desai (Exhibit 46), working in the said company since 2005 as Office Assistant. He has stated that the deceased was working for said Starship Maritime Services Pvt Ltd as a Senior Captain and he was drawing wages of about US $ 10,500 per month i.e. approximately Rs. 4,75,000 per month. In the cross-examination he stated that for the post of Senior Captain, Marine Rank Master work is available for four months in a year. On the basis of this evidence the learned Tribunal rightly arrived at the annual income of Rs.18,00,000/- by calculating income of Rs.4,53,000/- per month for four months and assuming the same to be the annual income. There is no illegality in the said findings.43. As held in Sarla Verma (Smt) & Ors Vs. Delhi RTC & Anr (supra) only three facts are required to be established by the claimants for assessing compensation in case of death. In this case, the said facts are established in the following manner:(i) Age of the deceased – 32 years,(ii) Income of the deceased – Rs.18,00,000/- per annum,(iii) Number of dependents – 4It is also significant to note that the learned advocate appearing for the Respondents has not raised any contention regarding the age of the deceased and the number of the dependents. However, he has raised contention regarding addition of income towards future prospects and regarding compensation towards loss of consortium, funeral expenses. We will consider the said submissions hereinafter.44. The learned Tribunal has arrived at total compensation of Rs.2,58,45,336/-, however awarded only Rs.1,03,38,134.40 due to finding of contributory negligence. The learned Tribunal has discussed the manner in which the said compensation was arrived at in paragraphs Nos. 27 to 29.This aspect is required to be considered as the appeal has been filed mainly with respect to the aspect of the contributory negligence. In this behalf, it is significant to note that the impugned judgment and award is dated 19th October 2016. The Respondents have not filed appeal challenging the award of compensation. Thus, there is substance in the contention of the learned Advocate for the Appellants that in his appeal i.e. appeal filed by the claimants, no adverse order can be passed against the Appellants-claimants. To support his submission that no adverse order be passed against the Appellants, he has rightly relied on the judgment in the matter of New India Assurance Co. Ltd v. Somwati & Ors (supra). Paragraphs 43 and 44 of the said judgment are reproduced hereinbelow for ready reference:43. We may also notice one more three-Judge Bench judgment of this Court in M.H. Uma Maheshwari v. United India Insurance Co Ltd. decided on 12-6-2020. In the above case, the Tribunal had granted the amount of rupees one lakh towards loss of consortium to the wife and rupees three lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the insurance company. The High Court held that by awarding the amount of rupees one lakh towards loss of consortium to the wife, the Tribunal had committed error while awarding rupees one lakh to the first appellant towards the head of loss of love and affection. Allowing the appeal filed by the claimant, this Court maintained the order of MACT.44. In the above judgment although rendered by the three-Judge Bench, there was no challenge to award of compensation of rupees one lakh towards the consortium and rupees three lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the insurance company. The Court did not pronounce on the correctness of the amount awarded under the head loss of love and affection.Thus as the Respondents have not filed any appeal, and the Appellants i.e. claimants have filed appeal mainly on the point of contributory negligence and in any case restricted their appeal regarding aspect of contributory negligence, the contentions raised by the Respondents cannot be considered.48. Apart from above aspect on merits also, it is significant to note that the deceased was serving as Senior Captain and due to the nature of his duties, i.e. Senior Captain, Marine Rank Master, he was to work only for four months in a year and therefore for all practical purposes, it has to be held that the deceased was having permanent job. Thus, the learned Tribunal has rightly added 50% income towards future prospects.