[CASE NUMBER] 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR FIRST APPEAL NO.535 OF 2008 [ENTITY] s/o [ENTITY], Aged about 65 years, Occupation-Nil, Resident of 29, Samarth Nagar, Wardha Road, Nagpur. (Dead) L.Rs. of Appellant. 1-a] [ENTITY] s/o Late [ENTITY], Aged about 38 years, Occupation-Business, Resident of Flat No.404, 'Krishna Pride', 17, Navneet Society, Narendra Nagar, Nagpur. 1-b] Mrs. [ENTITY] w/o [ENTITY], Aged about 60 years, Occupation-Business, Resident of 71, Pandey Layout, Purshottam Apartment, Nagpur. 1-c] Mrs. [ENTITY] w/o [ENTITY], Aged about 62 years, Occupation-Household, Resident of Jammu & Kashmir Colony, Rudrapur Road, Jamunangar (Haryana) APPELLANTS VERSUS 1] Smt. [ENTITY] w/o [ENTITY], Adult, Occupation-Business, Resident of No.2/227, [ENTITY], [ENTITY], Post- Kumarapalayam Tiruchengode Taluka, Namakkal District (Tamil Nadu). Uploaded on - 12/09/2017 Downloaded on - 13/09/2017 00:34:54 [CASE NUMBER] 2 2] United India Insurance Company Limited, Ambika House, 19, Dharampeth Extension, Shankar Nagar, Nagpur-440 010. RESPONDENTS Shri [ENTITY], Advocate for Appellants, Shri [ENTITY], Advocate for Respondent no.2. None appeared for Respondent no.1 though duly served. CORAM : KUM. [ENTITY], J. DATED : AUGUST 31, 2017. [ENTITY]
This appeal questions the legality, correctness and propriety of the Award dated 29.4.2006 passed by the Motor Accident Claims Tribunal, Nagpur in [CASE NUMBER].
2] The facts giving rise to the present appeal may be stated in nutshell as under :
(i) Appellants are the legal representatives of deceased appellant [ENTITY]. [ENTITY] and his wife Mrs. [ENTITY] filed claim petition under [SECTION] of the [ACT], as their two sons [ENTITY] and [ENTITY] died in a vehicular accident. Mrs. [ENTITY] died during the pendency of petition and her name came to be deleted from the petition.
[ENTITY] died during the pendency of appeal and the legal representatives of [ENTITY] have been substituted vide order dated 10.12.2015.
(ii) According to appellants, [ENTITY] and [ENTITY] were doing the work of repairing of the truck. On 16.3.2001 at about 4.30 am, truck was parked by the side of the road on [CASE NUMBER] at Jasapur, Tahsil and District-Nagpur. That time, [ENTITY] and [ENTITY] were repairing Truck No.MHG-7793. According to appellants, Truck No.TN-28/R-3767 came in a high speed and dashed against stationary truck which was being repaired by [ENTITY] and [ENTITY]. The impact was so severe that [ENTITY] and [ENTITY] received multiple injuries and died.
(iii) It was the case of claimants that [ENTITY] was aged about 31 years. He was working as a mechanic with Punjab Engineering Works, Nagpur and earning Rs.4,000/- to Rs.4,500/- per month. Due to untimely death of the son, parents claimed compensation to the tune of Rs.5,00,000/-. It was contended that parents were dependents on the son and considering the loss caused to them, they were entitled to the compensation towards loss of dependency and other consequential benefits. 3] Claim Petition proceeded without reply against respondent no.1.
4] Respondent no.2-Insurance Company filed written statement (Exh.15) and resisted the claim. The defence of insurance company was that Truck No.TN-28/R-2767 was not involved in the accident. According to insurance company, driver of stationary truck has not taken all necessary precautions. At the time of occurrence of accident, it was dark. The indicators of the stationary truck were not on and the driver of the truck passing through the road was not aware that the truck was parked at a particular spot. The contention is that due to negligence on the part of driver of stationary truck accident took place. A plea of contributory negligence is raised by the insurance company. It is submitted that the driver, owner and the insurer of the stationary truck have not been joined as parties and the petition suffers from non-joinder of necessary parties. 5] Based on the rival pleadings, tribunal framed issues at Exh.18. Claimants examined AW-1 [ENTITY] (since deceased) and AW-2 [ENTITY] in support of their claim. Respondent no.2/insurer did not lead the oral evidence. Considering the oral and documentary evidence, tribunal came to the conclusion that drivers of both the trucks were negligent and due to their negligence, accident occurred. The tribunal awarded compensation to the tune of Rs.68,600/- inclusive of no fault liability amount with interest at the rate of 7.5% per annum from the date of presentation of petition i.e. 16.7.2001 till its realization holding both the respondents jointly and severally liable to pay the same. Being dissatisfied with the quantum of compensation awarded by the tribunal, claimants have preferred this appeal.
6] Heard Shri [ENTITY], learned counsel for appellants and Shri [ENTITY], learned counsel for respondent no.2-Insurance Company. None appeared for respondent no.1 though duly served.
7] On going through the rival contentions of the parties, pleadings raised in the petition and reply, reasons recorded by the tribunal and the impugned judgment and award, following points arise for determination in the present appeal :
(i) Whether appellants prove that compensation awarded by the tribunal is inadequate and not just, fair and reasonable compensation.?
(ii) Whether accident was the result of contributory negligence, as stated by the insurer.?
(iii) Whether interference is warranted in the judgment and award passed by the tribunal.?
8] Needless to state that basically three factors are to be established by the claimants for assessing compensation in case of death viz. (i) age of deceased, (ii) income of deceased and (iii) number of dependents. The issue regarding loss of dependency is required to be determined on the basis of (i) additions/deductions to be made for arriving at the income, (ii) deductions to be made towards the personal living expenses of the deceased and (iii) multiplier to be applied with reference to age of the deceased.
9] So far as occurrence of accident is concerned, it can be seen from the evidence of AW-1 [ENTITY] that he had not personally seen the accident. However, claimants placed reliance on the police papers. FIR (Exh.22) clearly indicates that offence was registered against the driver of Truck No.TN-28/R-2767. So far as the stationary truck is concerned, crime was not registered against the driver of stationary truck. From spot panchanama (Exh.23) drawn on 16.3.2001 betweem 9.50 hours to 10.45 hours, it can be seen that the offending truck was on the wrong side of the road. Insurer has come with a defence that indicators of stationary truck were not on and, therefore, driver of the truck in motion was not aware that truck was parked by the side of the road. The submission is that driver of stationary truck was equally responsible for accident, as he did not put the indicators on while parking the truck to the side of road. From the spot panchanama, it is difficult to infer that at the time of occurrence of accident indicators were not on. The driver of offending truck has not been examined to prove the factum of contributory negligence. Non-examination of driver of the truck in motion negatives the defence of contributory negligence raised by insurance company. On the basis of police papers and in the absence of evidence of contributory negligence, this court finds that the claimants could establish that accident occurred due to rash and negligent driving of Truck No.TN-28/R-2767 by its driver. 10] The next question relates to quantum of compensation and the extent of liability of the respondents to pay the same. It is stated by AW-1 [ENTITY] in his evidence that his son [ENTITY] was motor mechanic and doing job of repairing of heavy motor vehicles on contract basis with Punjab Engineering Works, Nagpur. He stated that [ENTITY] was earning Rs.4,000/- to Rs.4,500/- per month. Salary certificate (Article 'C') was produced by the witness in support of his evidence. 11] The claimants examined AW-2 [ENTITY], the owner of garage where [ENTITY] was working as a mechanic. According to [ENTITY], [ENTITY] was working as a mechanic in his garage on contract basis and he was paid Rs.4,000/- to Rs.4,500/- per month. He stated that [ENTITY] used to do the work of repairing of engine of heavy vehicles. He stated that till his death, [ENTITY] was attached to his garage and on the basis of the record, he issued salary certificate (Exh.30). The salary certificate indicates that [ENTITY] was getting Rs.4,000/- to Rs.4,500/- per month.
12] The tribunal discarded the salary certificate on the ground that wage register, attendance register, muster roll and the relevant record, on the basis of which, salary certificate came to be issued, were not produced by AW-2 [ENTITY]. The tribunal observed that in the absence of cogent proof about the employment and the salary, it will be unsafe to rely upon the testimony of AW-2 [ENTITY] and salary certificate (Exh.30). The notional income of the deceased was, therefore, considered as Rs.2,000/- per month by the tribunal and based on the notional income, loss of dependency came to be arrived at.
13] Learned counsel for appellants seriously assailed the reasons recorded by the tribunal and submitted that evidence of [ENTITY] has remained unshaken in the cross- examination. It is submitted that from the evidence of [ENTITY], it is crystal clear that [ENTITY] was working as a motor mechanic and earning Rs.4,000/- to Rs.4,500/- per month. Learned counsel submitted that award of compensation by the tribunal must be just, reasonable and fair and it is the duty of the tribunal to fix a just compensation. The submission is that the tribunal ought not to have succumbed to the technicalities particularly when the rules of evidence are not strictly applicable to the claim petition. Learned counsel submitted that there was no reason to discard the unshattered testimony of [ENTITY] corroborated by father of the deceased and the salary certificate. On the law relating to award of compensation by the tribunal and the duty of the courts to determine just and fair compensation, learned counsel placed reliance on :
[i] [ENTITY] .vs. [ENTITY] (Mrs) and others [(1994 2 SCC 176] [ii] [PRECEDENT] [ENTITY] (Smt) and others .vs. Delhi Transport Corporation and another [(2009) 6 SCC 121] [iv] [ENTITY] and others .vs. [ENTITY] and others [(2013) 9 SCC 54] [v] [PRECEDENT] [vi] [ENTITY] and others .vs. [ENTITY] and others [2014 (1) Mh.L.J. 79] [vii] [PRECEDENT] On going through the above referred judgments, it can be seen that the law laid down by the Hon'ble Supreme Court in [ENTITY] (supra) and the well settled steps that is Step 1 (Ascertaining the multiplicand), Step 2 (Ascertaining the multiplier) and Step 3 (Actual calculation) still hold the field.
15] In the present case, from the evidence of AW-2 [ENTITY], it has been established that monthly income of [ENTITY] was Rs.4,000/- to Rs.4,500/-. Based on the evidence of father of the deceased and [ENTITY], monthly income of [ENTITY] needs to be considered as Rs.4,000/- per month and not Rs.2,000/- notional income as taken by the tribunal.
16] So far as determination of future prospects as a criteria is concerned, as there was divergence of views, matter was referred before the Larger Bench of the Hon'ble Supreme Court and in case of [PRECEDENT], the Larger Bench of the Hon'ble Supreme Court observed that the standards fixed in [ENTITY] case on the aspect of deduction for personal living expenses in paras 30, 31 and 32 must ordinarily be followed unless a case for departure in the circumstances noted in the preceding paragraphs is made out. In para 43 conclusions have been sculled out as follows :
43.1. In the applications for compensation made under [SECTION] of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in [ENTITY] read with para 42 of that judgment.
43.2. In cases where the age of the deceased is up to 15 years, irrespective of [SECTION] or Section 163-A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in [SECTION] of the table in [ENTITY] should be followed.
43.3. As a result of the above, while considering the claim applications made under [SECTION] in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act.
43.4. The Claims Tribunals shall follow the steps and guidelines stated in para 19 of [ENTITY] for determination of compensation in cases of death.
43.5. While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the Judgment in [ENTITY].
43.6. Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paras 30, 31 and 32 of the judgment in [ENTITY] subject to the observations made by us in para 41 above.
43.7. The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration.
17] In the case on hand, it is not in dispute that [ENTITY] was a bachelor. The claimants were the parents. In regard to bachelor, normally 50% is deducted as personal and living expenses, because it is assumed that bachelor would tend to spend more on himself. It is not in serious dispute that deceased was 31 years old. As he was below 40 years, 50% of actual salary of the deceased towards future prospects is to be taken in the instant case. This would bring actual income of the deceased to Rs.4,000/- + Rs.2,000/- = Rs.6,000/- per month. Considering 50% personal expenses, in view of case of [ENTITY], actual income of the deceased would come to Rs.3,000 x 12 = 36,000/- per annum. So far as multiplier is concerned, as deceased was 31 years old at the time of accident, in view of second schedule and the guidelines in case of [ENTITY], multiplier of 16, if applied, would be appropriate. This brings the loss of dependency to Rs.36,000 x 16 = Rs.5,76,000/-.
18] In the backdrop of the judgments relied upon by the learned counsel for appellants for loss of love and affection, parents were entitled to an amount of Rs.1,00,000/-. Funeral expenditure sanctioned by the Hon'ble Apex Court is also Rs.25,000/-. The grant of amount at lesser rate by the Tribunal, in the present case and applying the multiplier of 5 is thus unsustainable in law. 19] In the light of the above, this court, on evaluation of the evidence and material placed on record, finds that appellants would be entitled to receive compensation as follows :
(1) Monthly net income Rs.4,000/- (2) 50% future prospects Rs.2,000/- Rs.6,000/- (3) 50% deduction towards personal living expenses (-) Rs.3,000/- Rs.3,000x12 Rs.36,000x16. (4) Total loss of dependency Rs.5,76,000/- (5) Loss of love and affection Rs.1,00,000/- (6) Funeral expenses Rs. 25,000/-
Total amount of Rs.7,01,000/- Compensation : 20] The Hon'ble Supreme Court has clarified that
interest which is to be calculated on the amount of compensation is 9% from the date of filing of the application under [SECTION] of the [ACT]. Accordingly appellants are entitled to receive total compensation as stated above along with interest at the rate of 9% per annum from the date of application that is 16.7.2001 till its actual realization.
21] [CASE NUMBER] is allowed in the above terms. No costs.
([ENTITY] [ENTITY], J.) [ENTITY], PA