* 1 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1081 OF 1999 United India Insurance Co. Ltd .... Appellant V/S. 1. Smt. Vijaya Harish Bolar & Ors. ..... Respondents AND FIRST APPEAL NO. 1428 OF 2002 Smt. Vijaya Harish Bolar & anr. .... Appellants V/S. Mohammad Ismail Bhagwan & anr. ..... Respondents * * * * Mrs. Anita Agarwal, adv.for the appellant in F.A.1081/1999 & respondent in 1428 of 2002. Mr. T.J. Mendon, adv.for the respondent in F.A. 1081/1999 & for appellant in F.A. No. 1428 of 2002. * * * * CORAM :- Smt. R.P. SondurBaldota, J. 25th April, 2011. JUDGMENT :- 1. This is a common order on the above two appeals filed under Section 173 of the Motor Vehicles Act, 1988. The appeals challenge the * 2 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 correctness and legality of the judgment and award passed on 7th September, 1999 in Claim Application No. 2061 of 1993 by the Motor Accident Claims Tribunal, Mumbai awarding compensation on account of death of one Harish Pasu Bolar in a motor vehicle accident. The appellant in First Appeal No. 1381 of 1999 is the Insurance Company, Opponent no.2 to the claim application. Respondent no.1 to the appeal is the original claimant who has filed First Appeal No. 1428 of 2002. Respondent no.2 to the appeal is the owner of the offending motor vehicle and respondent no.3 to the appeal, the other heir of the deceased. The parties hereinafter will be referred to by their original nomenclature. On the fateful day i.e. on 5th May, 1993 at about 1.30 p.m. Harish while crossing road at J.P. Road, Andheri was hit by the offending vehicle and sustained serious injuries. He succumbed to the injuries two days after in the Hospital. The deceased was then aged about 41 years and a tailor by profession. The claimant is his widow and original opponent no.3, the other heir was his mother-Chandravati. According to the claimant, the income of the deceased was Rs.3,500/- per month and she claimed compensation of Rs.5,00,000/- on account of his death. 2. The owner remained absent before the Tribunal despite due service of notice. Therefore, the claim against him was undefended. * 3 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 Resultantly, the Insurance Company obtained leave under Section 170 Motor Vehicles Act to defend the claim petition on all grounds available to the owner. There was no dispute before the Tribunal as regards the death of Harish in the motor vehicle accident involving the offending vehicle. There was also no dispute as regards the relationship of the deceased with the claimant and opponent no.3. The Tribunal by the impugned judgment and award held that the accident had occurred on account of rash and negligent driving of the offending vehicle and the claimant and opponent no.3 are entitled to compensation on account of death of Harish from both the owner, as well as, the insurer. 3. The Tribunal, however, rejected the evidence of income of Harish produced by the claimant and held the reasonable monthly dependency of the claimant as of Rs.2,000/- to calculate the multiplicand of Rs. 24,000/-. Considering the age of Harish it took the multiplier of 13 as just and reasonable and awarded compensation of Rs.3,12,000/- on account of loss of dependency. It awarded Rs.5000/- towards medical expenses, Rs.436/- for funeral expenses, Rs.10,000/- for loss to the estate and Rs. 10,000/- for loss of consortium, totaling the compensation to Rs. 3,37,436/-. It rounded off the compensation to Rs.3,37,500/- as just and reasonable compensation. * 4 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 4. Being aggrieved by the judgment and award, both the sides i.e. the claimant and the insurance company filed the respective appeals to challenge the quantum of compensation awarded. The Insurance company, contends additionally that the accident had occurred on account of negligence of Harish himself to dispute the liability of the owner to pay compensation to the claimant. The other claimant i.e. Chandravati-the mother of the deceased who was a respondent to the original claim application has been arrayed as respondent to the appeal filed by the Insurance Company. The other appeal has been filed jointly by the original claimant and Chandravati. During the pendency of the appeals, Chandravati died on 3rd September, 2000. Mr. Kudhroli, then appearing for the claimant by his letter dated 6th April, 2001 addressed to the he learned advocate for the insurance company communicated the death of Chandravati as also the particulars of her four heirs. The letter was received by the learned advocate on 12th April, 2001 as can be seen from the endorsement of receipt on the letter. The Insurance Company however took no steps to bring the heirs of Chandravati on record. Consequently, the appeal stood abated against her. Thereafter, instead of taking steps for getting the abatement set aside and bringing the heirs on record, the Insurance Company, strangely, took out Civil Application No. 1969 of 2007 for deletion of the name of Chandravati. * 5 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 The Civil Application was allowed by the order dated 9th February, 2009 and the amendment to delete the name of Chandravati was carried out on 20th February, 2009. The heirs of Chandravati have not been brought on record in the other appeal also. In these circumstances, a question arises whether the appeals as they stand today, with the absence of the heirs of Chandravati are maintainable. This question is required to be addressed before touching upon the merits of the appeal. 5. Mr. Mendon, the learned counsel for the original claimant, submits that the appeal filed by the Insurance Company cannot be maintained in the absence of some of the claimants as the decree cannot be altered in the absence of all the parties. According to him, if the Insurance Company were to succeed in the appeal as it stands today, it would give rise to two separate decrees against the heirs of Harish. This is because, the award and decree in favour of Chandravati cannot be disturbed behind the back of her heirs. This will mean that, in the absence of the heirs of Chandravati, the impugned judgment and award in favour of Chandravati will stand entitling the heirs to execute the same. However, the judgment and award against the original claimant will stand either set aside or altered. Thus, there will be two separate decrees in the same proceedings which is not permissible in law. Therefore, according to Mr. Mendon the appeal by the Insurance * 6 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 Company as it stands today cannot be maintained and is liable to be dismissed. In this connection he relies upon the decision of Division Bench of this court in Smt. Sheela wd/o. Vijay Choudhari & Ors. V.s. Central Bank of India reported in 1998 (4) ALL MR page 173. As regards the appeal filed by the original claimant, he submits that since the original claimant and Chandravati are joint in action the appeal by the original claimant can be maintained because if at all there is any enhancement of the compensation awarded, the benefit of enhancement will be available to the heirs of Chandravati as well. 6. Mrs. Agarwal, the learned counsel for the Insurance company, submits per-contra, that the death of Chandravati, one of the persons jointly interested in the decree, does not per-se divest the appellate court of its jurisdiction to pass decree in appeal in view of Order 41 Rule 4 Civil Procedure Code. She also submits that since the original claimant, who is one of the legal representatives of Chandravati is already on record in her independent capacity, the appeal does not abate even though no application is made to bring the heirs on record. In this connection, she relies upon the decision of the Apex Court in the case of Mahabir Prasad V/s. Jage Ram and Others reported in AIR 1971 S.C. page 742. * 7 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 7. In Mahabir Prasad’s case (supra), one of the decree holders had preferred appeal against the order of the executing court dismissing execution application on the ground that the decree was inexecutable. The other two decree holders had been impleaded as respondents to the appeal. On the death of one of the respondent decree holders, the appellant applied for striking off her name from the array of respondents. The appeal court granted the application subject to all “ just exceptions”. Later, the appeal court dismissed the appeal holding that because the heirs and legal representatives of the respondent decree holder were not brought on record within the period of limitation prescribed by the Limitation Act, the appeal abated in its entirety. The Appeal court had taken a view that the power of the appellate court under Order 41 Rule 4 CPC can be exercised only in those cases where there is a decree which proceeds upon a ground common to more persons than one and the appeal is filed by one or more of them but not all and the other persons who are interested in the result of the appeal are made parties to the appeal either as appellants or respondents. In other words, the power could be exercised only if the other decree holders had not been arrayed as parties to the appeal. The appellant had therefore approached the Apex Court challenging the order of dismissal * 8 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 of the appeal. The Apex Court took note of the provision of Order 41 Rule 4 Civil Procedure Code, which reads as follows :- Where there are more plaintiffs or more defendants than “ one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. “ It disapproved the view taken by the appeal Court and held that competence of the appellate Court to pass a decree appropriate to “ the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record, power of the appellate court under Order 41 Rule 4 to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The view taken by the High Court cannot therefore be sustained. “ One fails to understand, how the above observations can help the Insurance Company in saving the appeal filed by it. These observations infact help the original claimant in maintaining her appeal. The provision of Order 41 Rule 4 is applicable to an appeal filed by one of several persons * 9 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 against whom common decree is passed. It is not applicable to an appeal filed against several persons jointly interested in the appeal. 8. Mrs. Agarwal, then draws attention of the Court to the observations at paragraph-6 of the judgment wherein the apex Court has observed that since the appellant was one of the heirs of the deceased joint decree-holder respondent, there can be no abatement merely for want of a formal application for showing the appellant in his additional capacity as heir of the deceased respondent. Even if there are other heirs and legal representative and no application for impleading them within the period of limitation prescribed by the Limitation Act, the proceeding will not abate. This observation also cannot come to the rescue of the Insurance Company since the question for consideration here is not of abatement of the appeal alone, but, of maintainability of the appeal. It may be remembered here that the Insurance Company had despite having an opportunity to make an application for bringing the heirs of Chandravati on record, chose to delete her name from the proceedings. Therefore, in the absence of heirs of Chandravati, the decree in favour of Chandravati and now in favour of her heirs cannot be disturbed. Therefore, the decree against them will stand as it is. In that case, the appeal against the original claimant alone cannot be maintainable because in case, the appeal is allowed, it will result in * 10 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 disturbance of the decree against the original claimant leading to a situation of two inconsistent decrees in the same claim petition against persons having joint and indivisible rights. Mrs. Agarwal, then seeks to submit that the impugned judgment and award should not be treated as a joint and indivisible decree in favour of the original claimant and Chandravati since the compensation payable to both stands already apportioned by the impugned judgment and award. This is an argument of desperation. I find no merit in it because the apportionment of compensation by the Tribunal is only a matter of convenience of the parties and does not change the nature of the decree from joint and indivisible to individual and separate. 9. The decision of Division Bench relied upon by Mr. Mendon, runs on the same lines. The proceedings before the Division Bench was an appeal preferred by some of the judgment Debtors with the other judgment debtors arrayed as the respondents alongwith the decree holder. During the pendency of the appeal, on the application filed by the appellants the name of one of the respondents was deleted. The decree holder then filed a purshis praying that the appeal did not survive as it had abated against all the respondents because of deletion of name of one of the respondents. As the decree passed by the Trial Court was joint and indivisible, by deletion of name of one of the * 11 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 judgment debtors the appeal itself had abated and hence it did not survive. One of the decisions cited before the Division Bench was the decision of the Apex Court in the case of State of Punjab v/s. Nathuram reported AIR 1961 S.C. page 89 where the provisions of Order 22 Rule 4 Civil Procedure Code, Order 1 Rule 9 Civil Procedure Code and Order 41 Rule 4 Civil Procedure Code had been considered. While considering the effect of abatement of the proceedings against one of the parties to a joint decree, the Apex Court held as follows :- 8. “ The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject matter of the decree are specified. One view is that in such case, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate Court. WE do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court, cannot in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representative of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives, which may affect the rights of the legal representatives under the decree. It is immaterial that the * 12 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 modification which the Court will do is one to which exception can or cannot be taken.” The above observations of the Apex Court, are directly applicable to the facts of the case on hand. In view thereof, it must be held that with deletion of name of Chandravati after her death, from the appeal preferred by the insurance company, the appeal is not maintainable. The same must therefore be dismissed as not maintainable. 10. This brings me to consideration of the appeal of the original claimant on its merits. The evidence before the Tribunal for grant of compensation on account of death of Harish consisted of the deposition of the original claimant (P.W.1), Shridhar Naik (P.W.2), an employee of Harish and Dinkar Bangera, brother of Harish. All the three witnesses deposed that Harish was a Tailor by profession and was running a tailoring business in the name and style of Fitright Tailors”. He was “ the master cutter with 3 Tailors including P.W. 2 and P.W.3 working with him. The business was run from the rental premises with monthly rent of Rs.1,000/-. The salary paid to the three employees ranged between Rs.2,000/- to Rs.2,500/-. The original claimant deposed that Harish used to pay her Rs.3,000/- per month for the purpose of household expenses and also maintain Chandravati at the native place by remitting money to her. This evidence is supported by P.W. 3- the * 13 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 brother. The original claimant produced 9 order books maintained by Harish during the course of his business (Exhibit-16 collectively). According to her, the other order books had been destroyed in the rains. As per the order books, the gross income of Harish for 7 months was Rs. 96,959/- i.e. Rs.13,850/- per month. After deducting therefrom a total amount of Rs.9,500/- towards the outgoings i.e. the rent for the premises, salary to the employees and sundry expenses, the net monthly income of Harish comes to Rs.4,350/- . The original claimant had also produced the income tax returns (Exhibit-17) which showed the net yearly income of Harish as Rs.16,000/-. The Tribunal, however, without evaluating the evidence led before it, merely noted down the evidence and the arguments advanced thereon by both the sides in its judgment and opined that an amount of Rs.2,000/- shall be reasonable monthly dependency of the original claimant. The impugned judgment and award discloses no basis whatsoever for the monthly dependency of Rs. 2,000/-. In that circumstance, the same is rendered arbitrary. Perusal of the record shows that, there is nothing to doubt the order books produced by the original claimant. The order books are seen to have been maintained properly during the course of business run by Harish. There is also nothing to doubt the evidence of the witnesses that Harish had employed three tailors and he himself was the master cutter. The * 14 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 claimant had examined two of the tailors i.e. P.W.2 and P.W.3 in support of the claim as regards the salary paid by Harish to his tailors. There is nothing in the cross-examination of these witnesses to disbelieve them. Mrs. Agarwal, then refers to the discrepancy between the order books maintained by Harish and the income-tax returns filed by him. This discrepancy is required to be ignored taking judicial note of common general tendency of a tax payer to show reduced income in order to save the taxes payable. Looking at the evidence before the Court in it’s entirety, in my opinion, the income of 4,350/- can be safely taken as the monthly income of Harish. With this monthly income, after deducting one-third amount therefrom towards his personal expenses, the monthly dependency of his family would be of Rs.3,900/- and the annual dependency of Rs.46,800/-. The Tribunal has adopted 13 years as multiplier relying upon the decision of the Apex Court in U.P. State Road Transport Corp V/.s Trilok Chandra and Others reported in 1996 ACJ page 831. There is no need to disturb the multiplier of 13 as in the facts of the case the same is appropriate. With this, the total amount of compensation on account of loss of dependency comes to Rs. 6,08,400/-. Mr. Mendon submits that the Court should also take into consideration the future prospects of advancement in life and career of Harish and increase the multiplicand accordingly. However, there is no * 15 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 reliable evidence brought on record to show the future plans of Harish regarding the expansion or diversification of his business. Therefore, in my opinion, having regard to the material on record, the interest of justice would be met by taking income of Harish as Rs.3,900/- per month. As regards the other head of compensation, in my opinion, the compensation awarded for medical expenses, loss of estate and loss of consortium need not be disturbed. However the funeral expenses granted of Rs.436/- can not be said to be just and reasonable at all. Therefore, the funeral expenses of Rs.5,000/- can be awarded on the basis of approximation. With this, total the amount of compensation payable on account of death of Harish would come to Rs.6,38,400/- which can be rounded off to Rs.6,38,500/- . 11. Mrs. Agarwal, submits that, the rate of interest awarded by the Tribunals is generally proportionate to the rate of interest granted by the nationalized banks on the fixed deposits and that it is well established that with the decrease in the rate of interest payable on the fixed deposits by the banks, the rate of interest awarded by Tribunal on the compensation payable should be proportionately reduced. She therefore requests that the interest on the enhanced amount should be reduced to 6% per annum and the interest be payable from the date of enhancement i.e. the date of this judgment * 16 * F.A.1081/99 & F.A. 1428/2002 25.4.2011 and order. There can be no disagreement with the submission advanced. In the circumstances, in my considered opinion, interest at the rate of 6% per annum would be just and proper with the interest payable from the date of this order on the enhanced amount of Rs.3,01,000/-. 12. Accordingly, First Appeal No. 1081 of 1999 is dismissed. First Appeal No. 1428 of 2002 is partly allowed. The impugned judgment and award dated 7th September, 1999 passed by the Motor Accident Claims Tribunal, Mumbai in Claim Application No. 2061 of 1993, is modified. The original opponent i.e. Mohammad Ismail Bhagwan the owner of the offending vehicle and the Insurer-United India Insurance Company Limited shall jointly and/or severally pay to the claimant-Vijaya Harish Bolar and the respondent-Chandravati, compensation of Rs.3,01,000/- (Rs.Three Lakh and One Thousand only) in addition to the compensation awarded by the impugned judgment and award. They shall also pay interest at the rate of 6% per annum on the additional compensation awarded from the date of this order The tribunal has fixed the share of Chandravati in the compensation as of Rs.1,00,000/- . This is proportionately increased to Rs.2,00,000/- with interest and costs. The original claimant