Case: The New India Assurance Company Limited & Another Vs. Ashish Ravindra Kulkarni & Others

Oral Judgment: (R.M. Savant, J.)1. The learned counsel appearing for the Respondents Shri Vishwanath Talkute in the above First Appeal would submit that the instant First Appeal is a case wherein the son of the Respondent Nos.2 and 3 who was the only earning member died. The Respondent Nos.2 and 3 in the above First Appeal are today over 70 years of age and therefore the above First Appeal may be taken up for hearing at the stage of admission.2. Having regard to the said fact, we deemed it appropriate to hear the above First Appeal itself for final hearing rather than considering the above Civil Application No.3126 of 2018 for withdrawal of the amount and the above Civil Application No.2598 of 2016 for stay.3. The learned counsel for the Respondents Claimants Shri Vishwanath Talkute tenders a private paper book containing the Claim Petition No.129 of 2009, the Written Statement, depositions of PW1 and PW2, and the documents which have been exhibited in the Motor Accident Claims Tribunal, Pune.4. The above First Appeal is directed against the judgment and award dated 28/07/2015 passed by the Motor Accident Claim Tribunal, Pune. By the said judgment and award the Claim Petition, being MACP No.129 of 2009 came to be allowed and the amounts mentioned in the operative part of the said order under different heads came to be granted. The total compensation awarded to the Respondents-Claimants is Rs.2,50,60,000/-. The MACT Pune has in the operative part also directed as to how the amount is to be disbursed and kept in Fixed Deposits in favour of the respective Respondents-Claimants. The parties would be referred to as per their status in the above First Appeal, i.e. the Insurance Company as the Appellant and the original Claimants as the Respondents.5. The incident in question is dated 17/06/2008. On the said day, one of the Respondents Claimants herein i.e. Ashish Ravindra Kulkarni who is the son of the deceased was travelling with his father Ravindra, his mother and his brother Aniket in Indica Car bearing registration No.TN/10/T/6077. The family was travelling to Pondicherry from Chennai. At about 15.30 hours when the car reached on East Coast Road, Salavankuppan, opposite Tiger Caves, Tamilnadu, one Innova Car bearing registration No.PY/01/AC/4466 came from opposite direction in a very high and excessive speed. In view of the speed with which the Innova car was being driven, the driver lost the control and went to the wrong side of the road and gave a violent dash to Indica Car wherein the family of Respondent-Claimant Ashish Ravindra Kulkarni was travelling. Due to the said accident, all the family members sustained injuries on account of which Ravindra, Aniket and driver Selven died on the spot whereas Ravindras wife Shailaja died in the hospital after about 18 hours of the said accident. A C.R. was registered against the driver of the Innova car for the offences punishable under Sections 279, 337, 338, 304A of the Indian Penal Code. The said Innova car bearing No.PY/01/AC/4466 was insured with the Appellant herein i.e. the New India Assurance Co. Ltd. who was the Opponent No.3 in the said MACP No.129 of 2009. The Claim Petition being MACP No.129 of 2009 came to be filed in the MACT, Pune claiming compensation to the tune of Rs.2,10,00,000/- under different heads with 18% interest.6. It was the case of the Respondents Claimants in the said Claim Petition that the deceased Ravindra was working as a Chief Executive Officer in TATA Precision Industries, Singapore and was earning $ 11,153 Singapore dollars per month. It was their case that the entire family was dependent on the income of the deceased Ravindra and due to the death of Ravindra, his son Ashish Ravindra Kulkarni has been suffering mentally and physically and his future prospects were bleak. It was their case that the Respondents Claimant Nos.2 and 3 are the parents of the said Ravindra. They lost their only son in the said accident who was the sole earning member on account of which there was a great financial loss to them.7. It seems that before the Tribunal the driver of the Innova car was deleted and the owner who was the Opponent No.2 in the said MACP No.129 of 2009 in spite of the service did not appear.8. The Appellant herein i.e. the New India Assurance Company Ltd. who was the Opponent No.3 filed its written statement which was numbered as Exhibit 20. In the said written statement it was admitted by the Appellant Insurance Company that the Innova car was registered with it at the relevant time. The Appellant herein took a plea that the Petition filed in the MACT, Pune was not maintainable as the accident had taken place in Tamil Nadu. The Appellant herein therefore took a plea that the MACT, Pune did not have the jurisdiction and therefore the Claim Petition be dismissed for want of territorial jurisdiction. It was denied in the written statement that the accident had occurred on account of the rash and negligent driving of the Innova car. It was also denied that the Innova car came in a high and excessive speed and the driver lost the control. It was sought to be contended that the driver of the Innova car blew horn when he saw the Indica car coming from the opposite direction in a rash and negligent manner and therefore it was the case of the Appellant herein that the accident had occurred due to the contributory negligence of the driver of the Indica car. The Appellant herein in the said written statement denied that the deceased Ravindra was working as a Chief Executive Officer in TATA Precision Industries, Singapore and was earning $ 11,153 Singapore dollar per month. There was also a denial in respect of the family being dependent on him, and that the future prospects of the surviving son Ashish were bleak.9. It is on the basis of the pleadings of the parties that the MACT, Pune framed the following issues and answered the same as follows :Sr. No.IssuesFindings1Whether the applicants prove that on 17/06/2008 at about 03/30 p.m. on East Coast road, Salavankuppam, opposite Tiger Caves, Tamilnadu, impugned accident occurred due to rash and negligent driving of Innova Car bearing registration No.PY/01/AC/4466 by its driverYes2Whether the applicants prove that in the impugned accident, Ravindra Prabhakar Kulkarni diedYes3Does opponent No.3 prove that the tribunal has no jurisdiction to try and entertain the present claim petitionNo4Whether claim is bad for non-joinder of necessary partyNo5Whether the applicants are entitled for compensation If yes, what amount and from whomAs per final order6What orderAs per final order. 10. On behalf of the Respondents Claimants the evidence of Ashish Ravindra Kulkarni (PW1) and the representative of the TATA Precision Industries, Singapore Kirti Keshav Naik (PW2) was led. In so far as the Appellant Insurance Company is concerned, it did not step into the witness box. It is through the evidence of the said Kirti Naik (PW2) that the appointment letter of deceased Ravindra issued by the TATA Precision Industries, Singapore as also his salary slip were produced and therefore the said factum was got proved through the evidence of the said Kirti Naik.11. The MACT, Pune on the basis of the material which had come on record held that the income i.e. the basic salary of the said Ravindra would have to be calculated at $ 8000 Singapore dollars by excluding House Rent Allowance as also CPF i.e. festival allowance at $ 653 Singapore dollars. The MACT, Pune also deducted the amount of Rs.3,00,000/which was paid by the TATA Precision Industries, Singapore by way of compensation to the Respondents Claimants. The MACT also held that since the deceased Ravindra was working on temporary basis, no amount could be granted to the Respondents Claimants on account of loss of future prospects. The MACT also deemed it appropriate to grant interest at 6% p.a.. As indicated above, the amounts granted by the MACT are mentioned in the operative part of the impugned order and the total compensation granted is in the sum of Rs.2,50,60,000/. It is the said judgment and award of the MACT, Pune which is taken exception to by way of the above First Appeal.12. The challenge to the said judgment and order of the MACT, Pune is two fold, firstly based on the Grounds C, E and F which are appearing in the memo of above First Appeal and thereafter Grounds J, L and T. The said Grounds C, E, F, J, L and T are reproduced herein under for the sake of ready reference:C.That the learned Tribunal ought to have appreciated that the driver of Innova car bearing registration No.PY/01/AC/4466 was fully drunk and, therefore, ultimately he was charge sheeted under Section 185 of the Motor Vehicles Act along with Section 279 of the Indian Penal Code, which itself is a criminal act and as per the Division Bench judgment of this Honble Court the vicarious liability of master for an unauthorized and illegal act of the driver was discussed and ultimately it was held that the master is not vicariously liable for any illegal act of the driver, who carries passenger in goods carrier and thereafter even commits an offence during the course of such ride injuries were caused to the passengers the owner is not liable.E.The learned Tribunal ought to have appreciated the position of law that if the law does not require the insured to be vicariously liable for his criminal acts such as act contemplated under Section 185 of the Motor Vehicles Act, 1988 then the Insurance Company/Insured who is playing the role of indemnifier can be made liable to pay compensation by no stretch of imagination.F.The learned Tribunal ought to have appreciated the law laid down by this Honble Court in the judgment of Maimulna Begam vs. Taju reported in 1989(1) B.C.R. 673.J.The learned Tribunal ought to have appreciated that there was a report given by the Inspector of Police dated 15th September, 2008 thereby clearly stating that on 17th June 2008 at around 3.30 p.m. the opponent-namely Sivaguru was driving the Innova Car bearing No. PY/01/AC/4466 from Pondicherry to Chennai and he was fully drunk and after the medical test on the date of accident itself it was found that the driver was under the influence of alcohol to the extent that he was unable to appreciate the objects, walk or stand steadily and even to recollect the past events.L.As far as quantum of the Award is concerned, the learned Tribunal ought to have appreciated that the Claimants have not brought sufficient evidence on record to prove the salary of the deceased and they have failed to prove by leading cogent evidence when the deceased was earning 11,153 Singapore Dollars per month.T.The learned Tribunal ought to have appreciated that M. Kirti Naik, P.W.2, clearly admitted in her cross examination that Tata Precision Industries, Singapore has independent H.R. Department and also admitted that Tata Precision Industries Branch Singapore is having independent H.R. Branch and she is not aware about the financial and fiscal matters pertaining to it. The learned counsel for the Appellant Insurance Company Shri Ketan Joshi vehemently reiterated the aforesaid grounds during the course of his submissions before us. The learned counsel would submit that the Respondents Claimants in terms of the five judge bench judgment of the Apex in National Insurance Company Limited v/s. Pranay Sethi and Ors. reported in AIR 2017 SC 5157 . case would be entitled to only Rs.70,000/- under conventional heads i.e. for loss of consortium, funeral expenses and towards loss of care of minor children.In so far as Grounds C, E and F are concerned, it is pertinent to note that the Appellant Insurance Company has not pleaded the case sought to be urged by the said grounds in the written statement. As indicated above, the Appellant Insurance Company has not led any evidence in rebuttal. Hence in the absence of any pleadings to that effect in the written statement, the Appellant Insurance Company would not be entitled to raise the said grounds. In any event the said grounds do not fall within the statutory defences which are available to an insurer under Section 149 of the Motor Vehicles Act to the Insurer.In so far as Grounds J, L and T, which we have reproduced herein above, are concerned, it is pertinent to note that before the MACT, Pune the appointment letter as well as the salary slip of the deceased Ravindra were produced through the representative of the TATA Precision Industries, Singapore Kirti Naik (PW 2). In the absence of any contra material, the MACT was right in relying upon the said material to come to the conclusion as regards the income of the deceased Ravindra.We therefore do not find any merit in the challenge raised to the Award passed by the MACT, Pune on behalf of the Appellant Insurance Company.13. In so far as the Respondents herein i.e. the Claimants are concerned, they have also filed the above Cross Objection Stamp No.33774 of 2018. The said Cross Objection is revolving around the denial of future prospect, deduction of the House Rent Allowance and Festival Allowance, and the interest which has been granted at 6% p.a. which according to the Respondents Claimants is too meagre a rate of interest having regard to the fact that the said rate was not even the Bank rate at the relevant time.14. In so far as the aforesaid aspects are concerned, the relevant grounds in the Cross Objections are A, B, C, D, E, F, G and H which are produced herein under:AIt is submitted with respect that the Ld. Tribunal ought to have taken into consideration the allowances while calculating the income of the deceased. The Ld. Tribunal committed error in deducting the housing allowances and other allowances while calculating the Net Income. The Ld. Tribunal ought to have considered the salary of 11,153 Singapore Dollars.BIt is submitted with respect that the Ld. Tribunal committed a serious error in not granting and calculating compensation for loss of future prospects of the deceased.CIt is submitted with respect that the approach of the Ld. Tribunal in not granting compensation against the loss of future prospects in contrary to settled principles of law.DIt is submitted with respect that the Ld. Tribunal erred in observing that the deceased was not a permanent employee of Tata Precision, Singapore Branch.EIt is submitted with respect that the Ld. Tribunal ought to have considered the legal principle by which, given the age of the deceased, his future prospects should have been taken note of, and 50% should have been added under the head of future prospects to the actual salary.FIt is submitted with respect that the Ld. Tribunal ought to have granted Rs.1,00,000/- each as parental consortium of each of the parents.GIt is submitted with respect that the Ld. Tribunal ought to have granted Rs.1,00,000/- for loss of estate.HIt is submitted with respect that the Ld. Tribunal ought to have awarded interest @ 9% p.a. and erred in awarding a low rate of interest of 6% p.a. The learned counsel for Respondents herein i.e. the Claimants during the course of his submissions reiterated the said grounds and in support thereof relied upon the following judgments of the Apex Court in :1] National Insurance Company Limited v/s. Pranay Sethi and Ors. reported in AIR 2017 SC 5157. 2] National Insurance Co. Ltd. V/s Indira Srivastava and others reported in (2008) 2 SCC 763 3] Vimal Kanwar and others v/s. Kishore Dan and others reported in (2013) 7 SCC 476 4] Magma General Insurance Co. Ltd. V/s Nanu Ram and Ors. Reported in 2018 (11) SCALE 247. 15. In so far as future prospects are concerned, the same has been denied to the Respondents Claimants on the ground that the deceased Ravindra was not a permanent employee. It is required to be noted that the deceased Ravindra was engaged as a Chief Executive Officer with TATA Precision Industries, Singapore, and it is the case of the Respondents Claimants that the monthly salary of the deceased Ravindra was $ 11,153 Singapore dollars. The concept of temporary/permanent, in our view, cannot be made applicable to the Chief Executive Officer in a Company which is based abroad. In fact the concept may be alien to such company. It would therefore have to be held that the deceased Ravindra was a permanent employee of the said TATA Precision Industries, Singapore. In so far as the said aspect is concerned, a useful reference could be made to the judgment of the Apex Court in Pranay Sethis case (supra). The 5 Judge Bench of the Apex Court after referring to various judgments of the Apex Court has culled out its conclusions which are appearing in paragraph 61 of the said judgment which for the sake of ready reference are reproduced herein under :61. In view of the aforesaid analysis, we proceed to record our conclusions:(i) The two-Judge Bench in Santosh Devi (AIR 2012 SC 2185 ) 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 (AIR 2009 SC 3104 ), 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 (AIR 2013 SC (Supp) 474), 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 selfemployed 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 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.16. In our view, the Respondents Claimants would be entitled to future prospects in terms of clause (iii) of the said conclusions as the deceased Ravindra had a permanent job. Hence an amount of 30% of the amount calculated as the total income of the deceased by applying concerned multiplier would have to be added to the compensation. The said 30% amount towards loss of future prospects would come to Rs.12,04,524/-.17. In so far as the deductions of the amounts of House Rent Allowance and Festival Allowance are concerned, in our view, the said deductions are also not permissible. A useful reference could be made to the judgment of the Apex Court in Indira Srivastava and otherss case (supra) wherein the Apex Court has held that the benefits meant for family, as distinguished from personal benefits like conveyance allowance, etc. also form part of income. Hence the amounts paid by way of House Rent Allowance and Festival Allowance would have to be taken into consideration whilst calculating the total income of the deceased Ravindra.18. In so far as deduction of Rs.3,00,000/- which amount has been granted by the employer TATA Precision Industries, Singapore to the Respondents Claimants is concerned, the said deduction is not permissible. A useful reference could be made to the judgment of the Apex Court in Vimal Kanwars case (supra) wherein the Apex Court in the context of the salary receivable by the dependent claimant upon compassionate appointment due to victims death held that it does not come within the periphery of Motor Vehicles Act to be termed as pecuniary advantage.19. In so far as the amounts to be awarded under conventional heads i.e. for loss of consortium, funeral expenses and towards loss of care and guidance for minor children are concerned, the Apex Court in Pranay Sethis case (supra) in paragraph 54 held that the 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 judgment in Pranay Sethis case (supra) in so far as the said aspect is concerned was considered by the Apex Court in Magma General Insurance Co. Ltd.s case (supra). The Apex Court in the said case observed that the Motor Vehicles Act is a beneficial legislation and, 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. Parental Consortium is awarded to the children who loose their parents in motor vehicle accidents under the Act. The amount of compensation to be awarded as consortium will be governed by the principles as laid down in Pranay Sethis case (supra). The Apex Court in the said case awarded an amount of Rs.40,000/- each for loss of Filial Consortium apart from a ;sum of Rs.50,000/- each for the loss of love and affection. In view of the fact that the judgment in Magma General Insurance Co. Ltds case (supra) has considered the judgment in Pranay Sethis case (supra), we propose to follow the said judgment in the matter of awarding the sums on account of conventional heads. In view thereof the amount of Rs.3,00,000/- granted as compensation for loss of love and affection to the Respondents Claimants would have to be brought down to Rs.1,50,000/- i.e. Rs.50,000/- to each of the Respondents Claimants. In view of the special facts and circumstances of the case where the body of the deceased was brought by Air to Pune, we deem it appropriate to maintain the amount of Rs.1,00,000/- granted for funeral expenses. We also deem it appropriate to award Rs.15,000/- towards loss of estate, and Rs.1,20,000/- i.e. Rs.40,000/- to Ashish i.e. the Respondent No.1 towards Parental Consortium and Rs.80,000/- to the parents i.e. the Respondent Nos.2 and 3 towards Filial Consortium.20. Lastly coming to the rate at which the interest has been granted by the MACT, Pune, as indicated herein above, the interest to the Respondents Claimants had been granted at the rate of 6% p.a. We deem it appropriate to enhance it to 7.5% p.a.21. In that view of the matter, the above First Appeal filed by the Appellant Insurance Company is accordingly dismissed save and except to the extent of modification in respect of the amount towards loss of love and affection.

Decision:
1[ds]In so far as Grounds C, E and F are concerned, it is pertinent to note that the AppellantInsurance Company has not pleaded the case sought to be urged by the said grounds in the written statement. As indicated above, the AppellantInsurance Company has not led any evidence in rebuttal. Hence in the absence of any pleadings to that effect in the written statement, the AppellantInsurance Company would not be entitled to raise the said grounds. In any event the said grounds do not fall within the statutory defences which are available to an insurer under Section 149 of the Motor Vehicles Act to the Insurer.In so far as Grounds J, L and T, which we have reproduced herein above, are concerned, it is pertinent to note that before the MACT, Pune the appointment letter as well as the salary slip of the deceased Ravindra were produced through the representative of the TATA Precision Industries, SingaporeKirti Naik (PW 2). In the absence of any contra material, the MACT was right in relying upon the said material to come to the conclusion as regards the income of the deceased Ravindra.We therefore do not find any merit in the challenge raised to the Award passed by the MACT, Pune on behalf of the Appellant5. In so far as future prospects are concerned, the same has been denied to the RespondentsClaimants on the ground that the deceased Ravindra was not a permanent employee. It is required to be noted that the deceased Ravindra was engaged as a Chief Executive Officer with TATA Precision Industries, Singapore, and it is the case of the RespondentsClaimants that the monthly salary of the deceased Ravindra was $ 11,153 Singapore dollars. The concept of temporary/permanent, in our view, cannot be made applicable to the Chief Executive Officer in a Company which is based abroad. In fact the concept may be alien to such company. It would therefore have to be held that the deceased Ravindra was a permanent employee of the said TATA Precision Industries, Singapore. In so far as the said aspect is concerned, a useful reference could be made to the judgment of the Apex Court in Pranay Sethis case (supra).In our view, the RespondentsClaimants would be entitled to future prospects in terms of clause (iii) of the said conclusions as the deceased Ravindra had a permanent job. Hence an amount of 30% of the amount calculated as the total income of the deceased by applying concerned multiplier would have to be added to the compensation. The said 30% amount towards loss of future prospects would come to Rs.12,04,524/-.In so far as the deductions of the amounts of House Rent Allowance and Festival Allowance are concerned, in our view, the said deductions are also not permissible. A useful reference could be made to the judgment of the Apex Court in Indira Srivastava and otherss case (supra) wherein the Apex Court has held that the benefits meant for family, as distinguished from personal benefits like conveyance allowance, etc. also form part of income. Hence the amounts paid by way of House Rent Allowance and Festival Allowance would have to be taken into consideration whilst calculating the total income of the deceasedview of the fact that the judgment in Magma General Insurance Co. Ltds case (supra) has considered the judgment in Pranay Sethis case (supra), we propose to follow the said judgment in the matter of awarding the sums on account of conventional heads. In view thereof the amount of Rs.3,00,000/- granted as compensation for loss of love and affection to the RespondentsClaimants would have to be brought down to Rs.1,50,000/- i.e. Rs.50,000/- to each of the RespondentsClaimants. In view of the special facts and circumstances of the case where the body of the deceased was brought by Air to Pune, we deem it appropriate to maintain the amount of Rs.1,00,000/- granted for funeral expenses. We also deem it appropriate to award Rs.15,000/- towards loss of estate, and Rs.1,20,000/- i.e. Rs.40,000/- to Ashish i.e. the Respondent No.1 towards Parental Consortium and Rs.80,000/- to the parents i.e. the Respondent Nos.2 and 3 towards Filial Consortium.20. Lastly coming to the rate at which the interest has been granted by the MACT, Pune, as indicated herein above, the interest to the RespondentsClaimants had been granted at the rate of 6% p.a. We deem it appropriate to enhance it to 7.5% p.a.21. In that view of the matter, the above First Appeal filed by the AppellantInsurance Company is accordingly dismissed save and except to the extent of modification in respect of the amount towards loss of love and affection.