Case: National Insurance Company Limited Vs. Mrs.Jyoti Niranjan Vaswani & Others

Oral Judgment:By earlier order, we directed that the appeal shall be disposed of finally at the stage of admission. Accordingly, appeal is taken up for final hearing.2. By this appeal, the appellant who is the insurer has taken an exception to the Judgment and Award dated 20th December 2011 passed by the learned Chairman of Motor Accident Claims Tribunal, Mumbai. The Respondent nos.1 to 4 are the original claimants who filed a claim petition under section 166 of the Motor Vehicles Act,1988 (hereafter referred to as the said Act) claiming compensation on account of death of one Niranjan Vaswani in a motor accident. Respondent no.5 is the owner of the offending vehicle. We find that on application made by the appellant under section 170 of the said Act, the Tribunal had granted leave to defend the claim application to the appellant by taking up defences available to the respondent no.5. Therefore, it is not necessary to serve a notice of this appeal to the respondent no.5.3. The case made out in short in the claim petition is that the accident occurred on 23rd January 1999 when the deceased was proceeding to Nashik along with his relatives for performing religious ceremony. At that time, a truck admittedly insured with the Appellant came from the opposite direction and gave a dash to the car by which the deceased was travelling. The deceased sustained injuries and he died on the spot. The case of the original claimants is that the deceased was working in a shipping company and was earning income of US $ 23,544/- p.a. The case of the claimants is that the deceased was holding a certificate of competency as Master of a foreign going ship.4. The Tribunal after a contest, came to the conclusion that the income of the deceased at the time of his death was US $ 23,544/- p.a and by adopting exchange rate of Rs.42/- per US $ which was prevailing at the relevant time, the Tribunal came to the conclusion that the gross earnings of the deceased at the time of accident were Rs.9,88,848/- p. a. The Tribunal deducted 33% from the said amount on account of income tax, education cess and professional tax. Therefore, yearly income was taken at Rs.6,62,528/-. 1/4th amount was deducted on account of personal expenditure of the deceased. Therefore, yearly dependency was arrived at Rs.4,96,896/-. By applying multiplier of 16 and by adding a sum of Rs.1,00,000/- on account of loss of consortium and love and affection, compensation was fixed at Rs.80,50,336/-.5. The learned counsel for the appellant has submitted that there is a contributory negligence on the part of the driver of the vehicle by which the deceased was travelling. He submitted that there is no evidence adduced to prove that the annual income of the deceased was US $ 23,544/-. He submitted that Captain Lavji Mistry who was examined as a witness had no personal knowledge about the income of the deceased. He urged that there is no evidence on record to show that the said Mr.Lavji Mistry was in the employment of Mobil Shipping Company Limited with which the deceased was allegedly employed. He submitted that the contents of the certificate of income are not proved by examining the proper witness. Therefore, he submitted that it is the case of no evidence. As far as the age of the deceased is concerned, his submission is that the claimants have produced only a photo copy of passport but the original was not produced and therefore, there is no evidence on record to show that the age of the deceased at the time of death was 36 or 37 years.He submitted that even assuming that the age was 37 years, in view of the decision of the Apex Court in case of Sarla Verma and others Vs. Delhi Transport Corporation (2009) 6 SCC 121 ), the multiplicand ought to have been 15 but the Tribunal has adopted multiplier of 16. Lastly, he submitted that the claim application filed in the year 1999 remained pending till December 2011 as there was failure on the part of original claimants to serve notice to the insured. Even after issues were framed at the stage of recording evidence, number of adjournments were applied for by the claimants. He submitted that the interest could not have been granted from the date of filing of the claim application. He submitted that there was default on the part of the claimants in prosecuting the claim application and therefore, the insurer could not have been saddled with interest from the date of filing of the claim application. The learned counsel for the claimants (respondent nos.1 to 4) invited our attention to the affidavit dated 27th August 2012 filed by the first respondent in civil application for condonation of delay. He on instructions states that the claimants are abiding by the statements made therein and they are willing to accept a sum of Rs.67,25,290/- by way of total compensation together with interest at the rate of 7.5% p.a.6. We have carefully considered the submissions. As far as first submission about contributory negligence is concerned, we may note here that the appellant obtained a leave under section 170 of the said Act to contest the claim application on all grounds which are available to the insured. Written statement of the appellant contains mere denial. The Tribunal has relied upon the evidence of eye witness Deepak Agarwal who was examined in companion claim application. The learned Member of the Tribunal observed that the evidence of the said eye witness on the aspect of negligence of the driver of the truck has not been controverted in the cross examination. The Tribunal was dealing with the three claim petitions arising out of the same accident. Therefore, the Tribunal was relying upon the evidence of the eye witness who was examined in companion claim petition. It is well settled that the Tribunal is not bound by the strict rules of evidence. The Tribunal accepted the evidence of the said witness Deepak Agarwal. On the other hand, there was no effort made by the appellant to examine the driver of the offending truck or any other eye witness. Therefore, there is no reason to disturb the finding of the Tribunal that the accident occurred on account of negligence of the driver of the truck which was insured with the Appellant.7. Now turning to the second issue regarding the quantum of compensation based on the income of the deceased, in the claim application the claimants have specifically pleaded that the deceased was employed with Mobil Shipping Company Limited. The first respondent stepped into witness box by filing an affidavit in lieu of examination-in-chief. She reiterated in the examination-in-chief that the deceased was working as a Captain in the said Mobil Shipping Company Limited and his yearly income was US $ 23,544/-. Reliance was placed on various documents including a letter dated 2nd July 1998 signed by Mr.B.Kennady, Personal Coordinator of Mobil Shipping Company Limited which has been marked as Exh.27. It appears that after the evidence was closed, an application was made by the claimants for examining additional witness. The Tribunal permitted the claimants to examine Captain Lavji Mistry as a witness. His affidavit in lieu of examination-in-chief was filed. His oral testimony was also recorded. He stated that he was employed with the said Mobil Shipping Company as a General Manager during the period of 1995 to 2003 and presently he was working with some other company. He identified the signature of Mr.B.Kennady on the certificate dated 2nd July 1998. In the examination-in-chief recorded in the Court, he specifically deposed that he personally knew the signature of Mr.B.Kennady and that is how the certificate was exhibited as Exh.27.On perusal of the cross examination it appears that the Advocate for the appellant did not dispute that Captain Mistry was employed with the said company. Only suggestion given to the witness was that he was not the General Manager of the said company during the relevant period. He stated that he was not present when Mr.Kennady signed the said certificate. However, he identified the said signature of Mr.Kennady on the letter at Exhibit 27. Therefore, we find that no fault can be found with the learned Chairman of the Motor Accident Claim Tribunal, Mumbai when he marked the certificate as exhibit. We must note here that the Tribunal constituted under the said Act is not bound by the strict rules of evidence. We find that apart from the said certificate at Exh.27 which is on the letterhead of the company, there are large number of certificates filed on record on the letterhead of Mobil Shipping Company Limited showing the salary/income of the deceased right from 1986-1987. Therefore, it is not possible to accept the submission that the certificate at Exh.27 is not a genuine document. We find no fault with the Tribunal for placing reliance on the said certificate to arrive at conclusion that income of the deceased was US $23,544/- at the time of his death. Exchange rate of Rs.42/- per US $ has been taken by the Tribunal on which there is no specific challenge.8. As far as age of the deceased is concerned, in the examination-in-chief, the first respondent deposed that age of her husband was 36 years. Age of the first respondent in the affidavit filed in October 2009 is disclosed as 46 years. So her age at the time of accident was above 35 years. It is true that only a photo copy of the passport of the deceased was produced and not the original. The passport discloses that the date of birth of the deceased was 28th February 1962. A suggestion was given in the cross examination of the first respondent that the age of the deceased was more than 40 years. Considering the factual aspects, it can be safely said that the age of the deceased at the time of accident was above 36 years and not more than 40 years. Therefore, going by the decision of the Apex Court in case of Sarla Verma (supra), the appropriate multiplier will be 15. The Tribunal has committed an error by taking the multiplier at 16.9. As far as number of dependants are concerned, in the affidavit in lieu of examination-in-chief, the first respondent has stated that she herself being the widow, the second respondent being the minor daughter of the deceased and the third and fourth respondents being the parents of the deceased, were dependent on the deceased. The respective ages of the third and fourth respondents as disclosed from the claim application filed in the year 1999 were 72 and 61 respectively. There is absolutely no cross examination on this aspect set out in the affidavit. Had there been even a suggestion given that the father of the deceased was not dependent on the deceased, there would have been substance in the grievance made by the learned counsel for the appellant regarding non examination of the father of the deceased. The version in the affidavit in lieu of examination in chief that all four claimants were depending on the deceased has gone unchallenged. Therefore, in view of what is held in the case of Sarla Verma (supra) by the Apex Court, 1/4th amount will have to be deducted on account of personal expenditure for the purpose of calculating multiplicand. Therefore, the yearly dependency taken by the Tribunal cannot be faulted with.10. Now as regards interest, there cannot be any dispute about rate of interest at 7.5% p.a considering the fact that the claim petition is of 1999. Perusal of the Roznama shows that notices were issued to the opponents in the claim petition on 24th June 1999. At the stage of hearing of the application under section 140 of the said Act, the 5th respondent (owner of the vehicle) did not enter appearance and only the appellant insurer entered appearance. Issues were framed in April 2006. Thereafter, the petition remained pending for service of notice to the insured-owner of the vehicle. It is not the case that the respondent Nos.1 to 4 had not paid process fees. Notices were issued from time to time which were not served. We find that only on 12th November 2008, an application for adjournment was moved by the claimants to enable them to take steps. Thereafter, an application at Exh.13 was filed by the appellant on 18th June 2010 seeking leave under section 170(b) of the said Act. The application was allowed by order dated 5th October 2010. Therefore, the claimants cannot be blamed for delay up to the said date. Perusal of the Roznama shows that thereafter only on one or two occasions, an application for adjournment was made on behalf of the claimants. Another grievance made by the learned counsel for the appellant was that after the evidence was closed, an application was made by the claimants seeking permission to examine one more witness. We find that the application was made by the claimants seeking permission to examine Captain Lavji Mistry. At the stage when the case was at the stage of argument, an objection was raised by the Appellant regarding the proof of income of the deceased. The Tribunal accordingly allowed the application and that is how the said witness was examined by the claimants. We must note here that though leave under section 170 of the said Act was granted as aforesaid by order dated 5th October 2010, no additional or further written statement was filed by the appellant.11. Considering the aforesaid circumstances, it is obvious that the claimants cannot be blamed for delay in disposal of the claim petition. Therefore, objection regarding grant of interest from the date of claim application will have to be rejected.12. We have already found that the yearly dependency arrived at by the Tribunal at Rs.4,96,896/- on the basis of the yearly income of the deceased at US $ 23,544/- is appropriate. We may note that 33% deduction has been made on account of income tax, education cess and professional tax. If multiplier of 15 is applied, the compensation comes to Rs.74,53,440/-. By affidavit dated 27th August 2012 filed in the application for condonation of delay, the first to fourth respondents have confined their claim to a sum of Rs.67,25,290/- with interest thereon. Therefore, we will have to reduce the compensation to the said amount and to that extent, the appeal must succeed.

Decision:
1[ds]6. We have carefully considered the submissions. As far as first submission about contributory negligence is concerned, we may note here that the appellant obtained a leave under section 170 of the said Act to contest the claim application on all grounds which are available to the insured. Written statement of the appellant contains mere denial. The Tribunal has relied upon the evidence of eye witness Deepak Agarwal who was examined in companion claim application. The learned Member of the Tribunal observed that the evidence of the said eye witness on the aspect of negligence of the driver of the truck has not been controverted in the cross examination. The Tribunal was dealing with the three claim petitions arising out of the same accident. Therefore, the Tribunal was relying upon the evidence of the eye witness who was examined in companion claim petition. It is well settled that the Tribunal is not bound by the strict rules of evidence. The Tribunal accepted the evidence of the said witness Deepak Agarwal. On the other hand, there was no effort made by the appellant to examine the driver of the offending truck or any other eye witness. Therefore, there is no reason to disturb the finding of the Tribunal that the accident occurred on account of negligence of the driver of the truck which was insured with theperusal of the cross examination it appears that the Advocate for the appellant did not dispute that Captain Mistry was employed with the said company. Only suggestion given to the witness was that he was not the General Manager of the said company during the relevant period. He stated that he was not present when Mr.Kennady signed the said certificate. However, he identified the said signature of Mr.Kennady on the letter at Exhibit 27. Therefore, we find that no fault can be found with the learned Chairman of the Motor Accident Claim Tribunal, Mumbai when he marked the certificate as exhibit. We must note here that the Tribunal constituted under the said Act is not bound by the strict rules of evidence. We find that apart from the said certificate at Exh.27 which is on the letterhead of the company, there are large number of certificates filed on record on the letterhead of Mobil Shipping Company Limited showing the salary/income of the deceased right fromTherefore, it is not possible to accept the submission that the certificate at Exh.27 is not a genuine document. We find no fault with the Tribunal for placing reliance on the said certificate to arrive at conclusion that income of the deceased was US $23,544/at the time of his death. Exchange rate of Rs.42/per US $ has been taken by the Tribunal on which there is no specific challenge.8. As far as age of the deceased is concerned, in thethe first respondent deposed that age of her husband was 36 years. Age of the first respondent in the affidavit filed in October 2009 is disclosed as 46 years. So her age at the time of accident was above 35 years. It is true that only a photo copy of the passport of the deceased was produced and not the original. The passport discloses that the date of birth of the deceased was 28th February 1962. A suggestion was given in the cross examination of the first respondent that the age of the deceased was more than 40 years. Considering the factual aspects, it can be safely said that the age of the deceased at the time of accident was above 36 years and not more than 40 years. Therefore, going by the decision of the Apex Court in case of Sarla Verma (supra), the appropriate multiplier will be 15. The Tribunal has committed an error by taking the multiplier at 16.9. As far as number of dependants are concerned, in the affidavit in lieu ofthe first respondent has stated that she herself being the widow, the second respondent being the minor daughter of the deceased and the third and fourth respondents being the parents of the deceased, were dependent on the deceased. The respective ages of the third and fourth respondents as disclosed from the claim application filed in the year 1999 were 72 and 61 respectively. There is absolutely no cross examination on this aspect set out in the affidavit. Had there been even a suggestion given that the father of the deceased was not dependent on the deceased, there would have been substance in the grievance made by the learned counsel for the appellant regarding non examination of the father of the deceased. The version in the affidavit in lieu of examination in chief that all four claimants were depending on the deceased has gone unchallenged. Therefore, in view of what is held in the case of Sarla Verma (supra) by the Apex Court, 1/4th amount will have to be deducted on account of personal expenditure for the purpose of calculating multiplicand. Therefore, the yearly dependency taken by the Tribunal cannot be faulted with.10. Now as regards interest, there cannot be any dispute about rate of interest at 7.5% p.a considering the fact that the claim petition is of 1999. Perusal of the Roznama shows that notices were issued to the opponents in the claim petition on 24th June 1999. At the stage of hearing of the application under section 140 of the said Act, the 5th respondent (owner of the vehicle) did not enter appearance and only the appellant insurer entered appearance. Issues were framed in April 2006. Thereafter, the petition remained pending for service of notice to theof the vehicle. It is not the case that the respondent Nos.1 to 4 had not paid process fees. Notices were issued from time to time which were not served. We find that only on 12th November 2008, an application for adjournment was moved by the claimants to enable them to take steps. Thereafter, an application at Exh.13 was filed by the appellant on 18th June 2010 seeking leave under section 170(b) of the said Act. The application was allowed by order dated 5th October 2010. Therefore, the claimants cannot be blamed for delay up to the said date. Perusal of the Roznama shows that thereafter only on one or two occasions, an application for adjournment was made on behalf of the claimants. Another grievance made by the learned counsel for the appellant was that after the evidence was closed, an application was made by the claimants seeking permission to examine one more witness. We find that the application was made by the claimants seeking permission to examine Captain Lavji Mistry. At the stage when the case was at the stage of argument, an objection was raised by the Appellant regarding the proof of income of the deceased. The Tribunal accordingly allowed the application and that is how the said witness was examined by the claimants. We must note here that though leave under section 170 of the said Act was granted as aforesaid by order dated 5th October 2010, no additional or further written statement was filed by the appellant.11. Considering the aforesaid circumstances, it is obvious that the claimants cannot be blamed for delay in disposal of the claim petition. Therefore, objection regarding grant of interest from the date of claim application will have to be rejected.12. We have already found that the yearly dependency arrived at by the Tribunal at Rs.4,96,896/on the basis of the yearly income of the deceased at US $ 23,544/is appropriate. We may note that 33% deduction has been made on account of income tax, education cess and professional tax. If multiplier of 15 is applied, the compensation comes to Rs.By affidavit dated 27th August 2012 filed in the application for condonation of delay, the first to fourth respondents have confined their claim to a sum of Rs.67,25,290/with interest thereon. Therefore, we will have to reduce the compensation to the said amount and to that extent, the appeal must succeed.