1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 241 OF 2007 Oriental Insurance Company Ltd., Insurer of Vehicle bearing Registration number GA-02-C-8130 Sadachar Building, Zadgaon Naka Ratnagiri 415612 ... Appellant V e r s u s 1. Smt. Jagubai Godso alias Ghodse alias Godve widow of Raghunath alias Raghu Godse alias Ghodse alias Godve, Aged 34 years, widow. 2. Master Mahendra Godse alias Ghodse alias Godve, Son of Raghunath alias Raghu Godse alias Ghodse alias Godve, Minor, ages 17 years, student. 3. Master Jeetendra Godse alias Ghodse alias Godve Son of Raghunath alias Raghu Godse alias Ghodse alias Godve, Minor, ages 13 years, Above minors represented by their natural Guardian Smt. Jagubai Godse alias Ghoodse alias Govde, Respondent No.1. All above Respondents No. 1 to 3 are Residents of House No. 10, Saivera, Velsao Pale, Cansaulim, Goa – 403 712. 2 4. Shri Gopal Lamani Son of Tukaram Lamani, Major in age, driver of Vehicle Bearing Registration No. GA-02-C-8130 Resident of House No.18, housing colony, Zuarinagar, Birla Goa. 5. Shri Tukaram Lamani Son of Heeru Lamani Owner of vehicle bearing registration number GA-02- C-8130, resident of house No.18, Housing Colony, Zuari Nagar, Birla Goa. ... Respondents. Mr. Santosh H. Bharne, Advocate for the Appellant. Mr. S. S. Kakodkar, Advocate for the Respondent Nos. 1 to 3. CORAM : A. S. OKA & F. M. REIS, JJ. DATED : 16TH JUNE, 2010. ORAL JUDGMENT ( Per A. S. OKA, J ) 1. The insurer of the vehicle involved in the accident has preferred this First Appeal for challenging the Judgment and Award dated 8th May, 2007 passed by the learned Presiding Officer of the Motor Accidents Claims Tribunal, Margao Goa, in a Claim Petition No. 3 198/2002 filed by the first to third Respondents under Section 166 of the Motor Vehicles Act, 1988 ( hereinafter referred to as “the said Act” ). 2. The case made out by the first to third Respondents/Claimants was that the deceased Raghunath alias Raghu Godse alias Ghodse alias Godve was riding his motorcycle on 9th May, 2002. He was proceeding from Margao towards Zuarinagar via Margao- Cortalim road. At about 10.15 p.m., a Tata sumo which was driven by the 4th Respondent and owned by the 5th Respondent came from the opposite direction and gave a dash to the motorcycle of the deceased. Due to the impact of the accident, the deceased sustained injuries and he succumbed to the injuries. The Appellant is the insurer of the Tata sumo vehicle involved in the accident. The 4th and 5th Respondents ( the Respondent Nos. 1 and 2 in the Claim Petition ) filed their written statement contesting the claim of the first to third Respondents. The case made out in the written statement was that there was no negligence on the part of the 4th Respondent and the accident occurred due to the fault of the deceased. There was a written statement filed by the Appellant dealing with the merits of the Claim Petition in which a contention was 4 raised that there was no negligence on the part of the driver of the Tata sumo vehicle. By the impugned judgment and award, the learned Presiding Officer of the Tribunal has held that the accident occurred due to the negligence on the part of the 4th Respondent who was driving the Tata sumo vehicle. The total compensation of Rs.13,11,400/- was granted by the Tribunal along with interest at the rate of 9% per annum from the date of the filing of the Claim Petition. 3. The learned Counsel appearing for the Appellant pointed out that after recording of the evidence of the first to third Respondents, the evidence of original claimants was concluded. The Appellant found that the 4th and 5th Respondents did not come forward to contest the Claim Petition and, therefore, on 25th April, 2007 an application was made by the Appellant at Exhibit D-46 by invoking clause (b) of the Section 170 of the said Act seeking leave to defend the Claim Petition. He pointed out that the said application was disposed of by an order dated 8th May, 2007 and the prayer made by the Appellant was rejected. He submitted that the order was passed on the said application on the very same day on which the judgment in Claim Petition was pronounced and, therefore, 5 there was no opportunity to the Appellant to challenge the erroneous order passed on the application at Exhibit D-46. He submitted that the roznama of the proceedings shows that 4th and 5th Respondents ( the driver and owner of the Tata sumo ) did not appear when the Claim Petition was set down for recording of their evidence. He placed reliance on decision of a judgment of Gujarat High Court in the case of Oriental Insurance Co. Ltd., V/s Rani Ben and others ( 2008 ACJ 2436 ). He submitted that this was a case where the leave ought to have been granted under Section 170(b) of the said Act. He submitted that his application for grant of leave has been erroneously rejected and hence an Appeal under Section 173 of the said Act at the instance of the Appellant is maintainable. He submitted that even if the leave is granted, this is a case where the Appellant does not desire to lead any further evidence and, therefore, the Appeal be heard on merits. Coming to the quantum of compensation, he invited the attention of the Court to the Saral form of income tax of the deceased filed for the assessment year 2001-2002 ( financial year 2000-2001 ) which discloses that the income of the deceased from salary was Rs.95,403/-. He submitted that for the assessment year 2002-2003 the claimants did not produce the 6 copy of the return but only a copy of Form – 16 issued under the Income Tax Rules has been produced. He invited our attention to the cross examination of the first Respondent in which she has admitted that the gross salary payable to the deceased for the month of April, 2002 was Rs. 8572.30 and the net salary was Rs.4592.30. He pointed out that in the cross examination the pay slip of the deceased issued by the employer for the month of April, 2002 was produced by the Appellant and that the widow of the deceased admitted the same. He pointed out that the widow admitted that for the month of March, 2002, the gross salary of her deceased husband was Rs.7,563.90 and net salary was Rs. 3,370.90. He placed reliance on the decision of the Apex Court in the case of Asha and others V/s United India Insurance Co. Ltd., & Anr. {( 2008) 2 SCC 774 }. He submitted that for the purposes of adopting proper multiplier, the net salary is required to be considered after deducting all the deductions made by the employer. He submitted that the net salary will have to be taken on the basis of the salary slip for the month of April, 2002, in as much as the accident occurred on 9th May, 2002. He submitted that the income shown in Form – 16 cannot be taken into consideration in as much as the admitted income of the deceased for 7 the months of March and April, 2002 is not consistent with the figure mentioned in the Form – 16. Inviting our attention to the impugned judgment and award, he submitted that the learned Presiding Officer of the Tribunal has committed a gross error by taking the income at Rs. 14,000/- per month for the purpose of calculating the multiplicand. He submitted that apart from the fact that the income taken is on the higher side, a sum of Rs. 50,000/- towards the pain and suffering could not have been granted by the Tribunal. 4. Learned Counsel appearing for the first to third Respondents ( original claimants ) submitted that the 4th and 5th Respondents had contested the Claim Petition and, therefore, there was no occasion for the Tribunal to grant leave under clause (b) of Section 170 of the said Act. He submitted that three witnesses examined by the first to third Respondents were cross examined by the 4th and 5th Respondents and, therefore, clause (b) of Section 170 was not attracted. He placed reliance on a decision of the Apex Court in the case of National Insurance Co. Ltd., V/s Indira Srivastava and others ( 2008 AIR SCW 143 ) and submitted that in view of the said decision, what is held by the Apex 8 Court in the earlier decision in the case of Asha and others ( supra ) cannot be read as a binding precedent. He submitted that the income of Rs.14,000/- per month is taken on the basis of Form – 16 supplied by the employer of the deceased. He submitted that the Tribunal was justified by taking into consideration the future prospects of the increase in the earnings of the deceased. He submitted that no interference is called for. 5. We have given careful consideration to the submissions. The first controversy which is required to be decided is as regards the rejection of the application made by the Appellant under Section 170(b) of the said Act. As far as grant of leave under Section 170 of the said Act is concerned, the Apex Court in a recent decision in the case of National Insurance Co. Ltd. V/s Meghji Naran Soratiya and others {(2009) 12 SCC 796 } has laid down the law governing disposal of the application. The Apex Court noted that in practice virtually in all Claim Petitions, insurer is impleaded as a party Respondent along with the driver and owner of the offending vehicle. The Apex Court also noted that in practice the insurers file their reply in all Claim Petitions. The said practice is noted in paragraph 10 of the said decision. In 9 paragraphs 10 to 12 of the said decision, the Apex Court held thus :- “ 10. But in practice, virtually in all claim petitions, the insurer is impleaded as a party-respondent along with the driver and owner. Consequently, many Tribunals instead of issuing the special notice under Section 149(2) notifying the insurer of the lodging of a claim against the insured ( so as to give the insurer an option to deny the validity of the policy or repudiate its liability under the policy under any of the grounds mentioned in Section 149(2) of the Act), issue regular notice to the insurer. As a result, in practice the insurers file their reply in all claim petitions. They raise the grounds available under Section 149(2), if such grounds exist. Otherwise they generally traverse the averments in the claim statement, though not permitted to contest on merits. But where one of the two circumstances mentioned in Section 170 exists, that is collusion or non-contest on the part of driver/owner, then the insurer who is already a party, files an application under Section 170 of the Act seeking permission to contest, which is routinely granted. 11. Where the insurer is already a party- respondent in the claim petition and it makes an application seeking permission to contest the claim on merits on the ground that the driver and owner have failed to contest the claim, even a one-line order or non-reasoned order may be sufficient as the Tribunal can satisfy itself about the need to grant the permission by a 10 perusal of the record, without anything more. But where the driver/owner are defending the claim, but the insurer seeks permission on the ground that there is collusion between the claimants and the driver/owner, it may be necessary for the Tribunal to record reasons to show that it is satisfied that there is collusion, before granting permission. 12. Where applications under Section 170 of the Act filed by the insurer specifically alleged that the driver/owner failed to contest the claim and therefore it was seeking permission, the same is verifiable from the record. On such verification, the Tribunal may pass a separate order or even endorse the order “granted” on the application itself. Even if any reason was to be recorded, all that the Tribunal is required to say is : “Permission is granted as driver/owner have failed to contest the claim.” In such cases, failure to record reasons cannot render the order invalid or illegal as the record on the face of it would show the claim was not being defended by the driver/owner. Procedural requirements should not be stretched to absurd levels to defeat the ends of justice itself.” 6. As held by the Apex Court, when an application under clause (b) of Section 170 is filed by the insurer alleging that the driver/owner have failed to contest the Claim Petition, the application can be allowed by passing a single line order without recording reasons. 11 In the present case, the three witnesses examined by the claimants were cross examined by the Advocate appearing for the 4th and 5th Respondents. In fact in case of two witnesses, the cross examination made by the Advocate for the said Respondents was adopted by the Advocate for the Appellant. Perusal of the roznama of the Claim Petition shows that after leading the evidence of three witnesses, first to third Respondents on 17th April, 2007 applied for issuing summons to the manager of the employer of the deceased. The case was adjourned to 21st April, 2007. On the said date, though the summons was served, the witness was not examined and the first to third Respondents made an application for grant of time to lead further evidence. Roznama shows that on that day, none appeared for the 4th and 5th Respondents. The claim petition was adjourned to 25th April, 2007 for evidence of the opponents and also for final arguments. On 25th April, 2007 when the claim petition was called out, none appeared for the 4th and 5th Respondents. The Appellant applied vide application at Exhibit D-46 for grant of leave under clause (b) of Section 170 of the said Act. In the said application, he stated that when the case was fixed for recording of evidence of the said Respondents, none appeared for the 1st and 2nd 12 Respondents. It is stated that the absence of 4th and 5th Respondents shows that they have abandoned the contest. Considering the absence of the said two Respondents on the dates on which they were supposed to lead evidence, it cannot be said that the application was belatedly moved. The said application was moved after the claimants closed the evidence. In the present case, the contest was even on the issue of negligence for which the evidence could have to be adduced only by the 4th Respondent who was the driver of the offending vehicle at the relevant time. This was the case where the Tribunal ought to have considered the case of the Appellant under clause (b) of Section 170 of the said Act for grant of leave. The application was made only after the Appellant found that the 4th and 5th Respondents remained absent when they were supposed to adduce their evidence. Thus, there is a merit in the submission made by the learned Counsel appearing for the Appellant regarding illegality of the order passed on the application at Exhibit D-46. After rejecting the application at Exhibit D-46, the learned Presiding Officer of the Tribunal ought to have granted a reasonable time to enable the Appellant to challenge the said order by filing appropriate proceedings. However, on the very same day, the Claim Petition was 13 disposed of. However, this controversy need not detain us as the learned Counsel appearing for the Appellant has made statement that even if leave is granted, the Appellant does not desire to lead any further evidence as the income of Rs.14,000/- per month erroneously taken by the Tribunal is on the basis of salary slip produced by the Appellant. He stated that as the salary slip on which the Appellant is relying upon is accepted by the Tribunal, there is no reason for the Appellant to lead any evidence. In view of this statement, we proceed to decide the Appeal on merits. 7. Now we consider the second aspect of the case namely the quantum of compensation. The case made out by the first to third Respondents was that the deceased was employed as a Belt Guide by M/s. New Era Handling Agency. Essentially there are two documents placed on record by the claimants. First one is at Exhibit 34 (Colly) which is a Saral Form under Income Tax Act. It shows the income of Rs.95,403/- by way of salary during the financial year 2000-2001. The said return shows that the salary paid to the deceased was not more than Rs.8000/- per month during the financial year 2000-2001. As far as the 14 financial year 2001-2002 is concerned, the claimants have not produced the copy of the income tax return or Saral Form. What has been produced is Form -16 issued by the employer. The Form – 16 discloses that for the year ending on 31st March, 2002, the gross salary payable to the deceased was Rs.1,71,465.60. The widow was cross examined by the Appellant on the aspect of income. She has admitted that the last drawn salary of the deceased for the month of April, 2002 was Rs.8,572.30 and the net salary was Rs.4,592.30. A true copy of the salary slip issued by the employer of the deceased was tendered in the cross examination of the widow. As the figures stated therein were admitted by the widow, the same has been exhibited as Exhibit 35. The widow also admitted that the gross salary paid for the month of March, 2002 was Rs.7,563.90 and the net salary was Rs. 3,370.90. If these two admitted figures are considered, the same are completely inconsistent with the Form – 16 produced by the claimants. As stated earlier, the income tax return of the financial year 2001-2002 has not been placed on record and what is placed on record is the only Form – 16. Therefore, what we have to consider is the last salary paid to the deceased for the month of April, 2002. Perusal of the said salary slip shows that apart 15 from normal wages, overtime wages were being paid to the deceased. The said figure will vary every month. Reliance is placed by the learned Counsel appearing for the Appellant on the decision of the Apex Court in the case of Asha and others ( supra ) in support of his contention that for applying multiplicand only the net salary payable by the employer to the deceased is required to be considered. Our attention is invited to the decision of the Apex Court in the case of National Insurance Co. Ltd., V/s Indira Srivastava and others ( supra ). The Apex Court in paragraph 8 of the said decision held that the term “income” has different connotations for different purposes. Paragraph 8 of the said judgment reads thus : “8. The term “income” has different connotations for different purposes. A Court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms.” 16 The paragraph 12 onwards, the Apex Court has considered its earlier decisions on the aspect of deduction from the gross salary. In paragraph 17, the Apex Court proceeded to hold as under :- “17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.” In paragraph 22, the Apex Court has considered its earlier decision in the case of New India Assurance Co. Ltd., V/s Charlie and another {(2005) 10 SCC 720 }. The Apex Court in the said decision has held that the net income would ordinarily mean gross income minus the statutory deductions. The Apex Court noted that the same view was reiterated in the case of New India Assurance Co. Ltd., V/s Kalpana (Smt.) and others {(2007) 3 SCC 538 }. The employer may be deducting the amounts payable by the deceased towards premium of the insurance policies, repayment of housing loan etc. However, these amounts are payable to the deceased by the employer and only for convenience, the 17 amounts are deducted and directly paid by the employer to the concerned companies or banks. Therefore, we cannot accept the submission of the learned Counsel appearing for the Appellant on the basis of a case of Asha and others ( supra ). While relying upon the salary certificate placed on record by the Appellant for the purpose of computing multiplicand, we cannot ignore that the deceased may have earned more over time wages for other months than what is reflected in the salary slip of April, 2002. The deductions will have to be made from the said amount on account of income tax liability. From – 16 relied upon by the claimants shows that the income tax of about Rs.15,000/- was paid for the financial year 2001-2002. Therefore, as stated earlier, the statutory deductions will have to be made from the gross salary of Rs. 8,572.30. At the same time, as the age of the deceased was 37 years, some allowance has to be made for future prospects of the increase in salary of the deceased. After making the deductions on account of income tax and after giving allowance for future prospects of the increase in earnings, the monthly income will have to be taken as Rs.8,572/-. A deduction of 1/3rd will have to be made on the expenditure which may have been incurred by the deceased himself. The said deduction will be 18 Rs.34,288/- per year. After making the said deduction, the yearly dependency will have to be taken as Rs.68,576/-. Considering the fact that the age of the deceased was 37 years, the appropriate multiplier will be 15. By adopting the said multiplier, the compensation payable is Rs.10,28,640/- to which the usual amount of Rs.20,000/- will have to be added on account of loss of consortium, funeral expenses etc. The Tribunal has committed an error by granting a sum of Rs. 2,000/- and Rs.50,000/- on account of funeral expenses and pain and suffering and a sum of Rs.5000/- towards the loss of consortium. The amount of Rs.10,48,640/- will have to be rounded to Rs. 10,49,000/-. To that extent, the amount awarded will have to be reduced. It is obvious that the compensation amount will include the amount paid under no fault liability under Section 140 of the said Act. Hence, the appeal is disposed of by passing the following order :- O R D E R (a) The impugned judgment and award is modified. Instead of a sum of Rs.13,11,400/-, the compensation payable will be Rs.10,49,000/-. 19 (b) Rest of the award is confirmed. However, we direct that the sum of Rs.20,000/- on account of funeral expenses and consortium etc., shall be shared equally by the claimants. (c) The Registrar will determine the amount payable to the respective parties in terms of the modified Award and permit the parties to withdraw the amounts out of the amounts deposited by the Appellant in this Court with interest accrued thereon. (d) The Appeal is partly allowed in above terms with no order as to costs.