1 first appeal no.144 of 2005 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 144 OF 2005 Oriental Insurance Co. Ltd. Gouveia Chambers, 3rd Floor, Helidoro Salgodo Road, Panaji-Goa. ... Appellant versus Shri Madhavrao Dattajirao Prabhu Dessai(since deceased) through his legal representatives: 1(a) Sou. Prachee Arun Sirdesai r/o Khanapur, Taluka, District, Belgaum; 1(b) Shri Arun Dattatray Sirdesai, r/o Khanapur, Taluka, District, Belgaum; 1(c) Sou. Bhagyashree Balasaheb Patil r/o Garl Gunji Taluka Khanapur, District Belgaum; 1(d) Shri Balasaheb Pandurang Patil r/o Garl Gunji Taluka Khanapur, District Belgaum; 1(e) Sou. Kalpana Rajesh Dessai r/o Sambara Taluka, District Belgaum; 2 first appeal no.144 of 2005 1(f) Shri Rajesh Baburao Desai r/o Sambara Taluka, District Belgaum; 1(g) Shri Abhijit Madhavrao Desai r/o 'Datakripa' Gaonthan, Sankhali-Goa. 1(h) Sou. Swatee Abhijit Desai r/o 'Datakripa' Gaonthan, Sankhali-Goa. 2. Smt. Girjabai Madhavrao Prabhu Dessai, aged 45 years, married, household work, Indian National, Resident of 'Datakripa' Gaonthan, Sankhali, Goa. 3. Mr. Mahesh Atmaram Palkar, Major, Driver, Resident of Savarshe Sattari, Native Place: Deulwada, Vadaval Kasarpal, Asnoda-Goa. 4. Mr. Yusuf N. Shaikh, Nanua, Valpoi, Sattari-Goa. ... Respondents Shri Emerico Afonso, Advocate for the Appellant. Shri V. Pangam, Advocate for Respondent No.2. 3 first appeal no.144 of 2005 CORAM : R. P. SONDURBALDOTA, J. DATE : 23RD SEPTEMBER, 2011. JUDGMENT This appeal by the Insurance Company takes exception to quantum of compensation awarded by the Motor Accident Claims Tribunal, Mapusa to original respondent no.1 and respondent no.2 who were the original claimants. Respondent No.3 is the driver of the offending vehicle and respondent no.4 is the owner. During the pendency of the appeal proceedings, original respondent no.1 died and his heirs have been brought on record. The appellant is the insurer of the offending vehicle. 2. One Sandesh, son of original respondent no.1 and respondent no.2 died in an accident on 14-9-2000 involving the bus belonging to respondent no.4. He being a bachelor, his parents, original respondent no.1 and respondent no.2 filed petition claiming compensation of Rs.20,00,000/- on account of his death. The 4 first appeal no.144 of 2005 petition was contested by the appellant alone on all defences available to the insurer as well as the insured after obtaining leave under Section 170 of the Motor Vehicles Act. The Tribunal on appreciation of evidence before it, by its Judgment and Order dated 3-1-2004 awarded compensation of Rs.6,00,000/- with interest at the rate of 9% per annum from the date of the petition till payment. While assessing the quantum of compensation the Tribunal had applied multiplier of 8. Thereafter, original respondent no.1 and respondent no.2 filed an application for review contending, inter alia, that the multiplier adopted by the Tribunal was not correct. The Tribunal allowed the application by its Order dated 22-3-2005 and recomputed the compensation by adopting multiplier of 11 and awarded total compensation of Rs.7,99,000/-. 3. Since the appellant does not dispute the occurrence of the accident, involvement of the bus belonging to respondent no.4 and the negligence on the part of respondent No.3 in driving the 5 first appeal no.144 of 2005 bus, no reference need be made to the pleadings and the evidence on the issues relating thereto. 4. As per the claim petition, earnings of Sandesh came from three sources. The first source of income was by hiring out a jeep to Sesa Goa Limited, The second source of income was by carrying on the business of Kirana and grocery in a novel way. He used to market the essential commodities on monthly basis by door to door delivery to fixed customers belonging to middle class and upper middle class. He had about 50 such fixed customers who were purchasing from him materials worth Rs.2,500/- per month on an average. Thus, he was getting turnover of Rs.1,25,000/- per month yielding profit of Rs.12,500/- per month at the rate of 10% of the turnover. The third source was the income from retail Kirana shop by name Dattakripa. The claimants contended that Sandesh was proposing to open a Spare parts shop and was planning to enter into Tourist and Travels business along with his friends. He had also promoted the idea for his friends of “Grow along with others” 6 first appeal no.144 of 2005 wherein everyone was to contribute to the capital according to the capacity and also employ themselves in the business. 5. There were in all 8 witnesses examined by the claimants in support of the claim made in the petition. They are AW1, the father of Sandesh, AW2, AW3, AW4 and AW5. The customers of Sandesh in his grocery business carried on from door to door. AW6 a passenger in the bus. AW7, General Manager of Sesa Goa Limited and AW8 an Officer of Sesa Goa Limited. 6. Mr. Afonso, the learned counsel for the appellant submits that assessment of compensation by the Tribunal is not in accordance with law and the established principles. The same is therefore, required to be revised. According to him, the income from the first source and the third source cannot be taken into account at all and as regards the income from the second source the evidence to substantiate the claim is not satisfactory. 7 first appeal no.144 of 2005 7. The objection by Mr. Afonso to the income from the first source is threefold. Firstly, that the income is illegal. Secondly that the income was not of Sandesh and thirdly that the source of income was still available to the claimants even after the death of Sandesh. There is no dispute that the jeep which was given on hire to Sesa Goa Ltd. is registered as a private vehicle. Therefore, Mr. Afonso submits that no commercial use of the same could have been made without the required permits and any income earned from commercial use of the vehicle registered as private vehicle would not be legal income. Section 39 of the Motor Vehicles Act imposes bar on driving of any motor vehicle in any public place or any other place unless it is registered in accordance with Chapter IV of the Motor Vehicles Act. When a transport vehicle is to be registered, the rules require additional information regarding the vehicle to be furnished. Section 66 of the Motor Vehicles Act imposes bar on use of the motor vehicle in any public place as a transport vehicle without permit from the Regional or State Transport Authority. Sections 192 and 192-A of the Motor Vehicles 8 first appeal no.144 of 2005 Act are the penal provisions by which using of motor vehicle in contravention of Sections 39 and 66 is made an offence. In view of these provisions, use of the jeep registered as a private vehicle for transportation purpose by entering into contract with Sesa Goa Ltd. was an offence and the income earned while committing the offence can be by no stretch of imagination said to be legal income. Such income cannot be taken into consideration for computation of compensation. Surprisingly, this serious objection by the appellant has been brushed aside by the learned Presiding Officer of the Tribunal in the impugned judgment and order with a spacious reason that at the highest such conduct would attract penalty. The second objection to the income is that the income did not belong to the deceased at all. There is no dispute that the original respondent no.1 was the registered owner of the jeep. The contract entered into by Sesa Goa Ltd. for hiring the jeep was with original respondent no.1. Sandesh, according to original respondent no.1. was driving the jeep whenever it was running under the agreement with Sesa Goa Ltd. Merely because Sandesh drove the vehicle, the income 9 first appeal no.144 of 2005 earned under the agreement with Sesa Goa Ltd. did not become his own income. Thirdly, Mr. Afonso submits that there is no loss of income from this source because the jeep continued to be available to original respondent no.1. There is substance in the third objection also. In these circumstances the claim made by original respondent no.1 and respondent no.2 of income of Sandesh from the first source must be discarded. 8. The objection as regard the third source of income that it was not the income of Sandesh must also be accepted since admittedly the business of “Dattakripa” was that of original respondent no.1. 9. This brings us to the second source of business i.e. the business of supply of kirana/grocery items door to door to fixed customers. The Tribunal has held that earning of Sandesh from the business of home delivery would be about Rs.3000/- (Rupees three thousand only) per month. This finding is seen to be arbitrary and not supported by any reason. Although the learned Presiding Officer has made reference in the impugned judgment to the evidence 10 first appeal no.144 of 2005 brought on record by the claimants, there is no discussion on the evidence and the reasoning to support the income of Rs.3000/- per month accepted by the Tribunal. The case of the claimants in the petition is that Sandesh had at least fifty fixed customers who were purchasing from him monthly, grocery worth on an average Rs.2500/- (Rupees two thousand five hundred only) per customer. He was getting turnover of about Rs.1,25,000/- minimum and earning profit of 10% of the turnover. Thus, his monthly income was Rs.12,500/- (Rupees twelve thousand five hundred only). The evidence in support of this income consists of depositions of AW.1, AW.2, AW.3 and AW.4. AW.1 is the father of Sandesh who has merely stated in his evidence that Sandesh used to do home delivery of grocery items to about fifty fixed customers who were from the areas of Housing Board Sankhli, Vasant Nagar, Dessai Nagar and Harvale and the monthly turnover per customer on an average was Rs.2500/-. Beyond this, AW.1 has not been able to give any further particulars of the business. However, the necessary particulars can be gathered from the deposition of AW.2, AW.3. and AW.4. All 11 first appeal no.144 of 2005 these three witnesses were the customers of Sandesh. AW.2 stated that he was regularly purchasing grocery material from Sandesh costing between Rs.6000 to Rs.8000/- per month. He has ten permanent members of his family and about three regular visitors, being his relatives. He stated that he had introduced Sandesh to four persons, two of them are doctors. Wife of AW.2 is stated to have introduced Sandesh to four of her professor colleagues. AW.2 further stated that the report of home delivery business of Sandesh was good as reported by his friends and also from his own experience. According to him, Sandesh was improving in business day by day since his customers could save on the time with delivery at the door, the quality of the grocery supplied was good and it was also cheaper. AW.3 deposed that his monthly expenses on purchase of grocery were within the range of Rs.8000/- to Rs.10,000/- and he had introduced Sandesh to six of his acquittances. AW.3 is an elected member of Sankhali Gram Panchayat from Gaonthan Constituency. According to him, out of seventy house-holds in the Constituency at least twenty were fixed customers of Sandesh. 12 first appeal no.144 of 2005 AW.4 also stated that he used to purchase grocery costing between Rs.8000/- to Rs.10,000/- from Sandesh. He named twenty one persons as the regular customers of Sandesh. This evidence brought on record by the claimants substantiate their claim that Sandesh was carrying on business of grocery items in this way. The evidence names at least forty customers of Sandesh. In the circumstances, I find no difficulty in accepting the claim of original respondent no. 1 and respondent no.2 that Sandesh had about fifty fixed customers. The evidence of these three witnesses shows that the expenses incurred by them on purchase of grocery items from Sandesh ranged between Rs.6000/- to Rs.10,000/-. There is no evidence before the Court as regards the extent of expenses of the remaining large number of customers. Therefore, this Court will have to resort to some assumption as regards the expenses. In my opinion, even if an extremely conservative view is to be taken, the expenses of each family over purchase of grocery items per month at the relevant time, i.e. in the year 2002 would be of Rs.4000/-. With this, the monthly turnover of Sandesh would be of Rs.2.00 lakhs (Rupees 13 first appeal no.144 of 2005 two lakhs only). As per the claim petition, Sandesh had profit margin of 10% on the turnover. It would be difficult to accept this claim without any evidence in support. However, according to me, margin of at least 5% would have to be taken as the profit margin of Sandesh. This is again extremely conservative view. With this, the monthly income of Sandesh from this business can be taken as Rs.10,000/- (Rupees ten thousand only) and his annual income of Rs.1,20,000/- (Rupees one lakh twenty thousand only). It has been argued by Mr. Afonso that the Tribunal has erred in deducting only one-third of the income amount of Sandesh towards his personal expenses. He relied upon the decision of the Supreme Court in the case of Sarla Verma (SMT) and others Vs. Delhi Transport Corporation and another, (2009) 6 Supreme Court Cases 121, to submit that in case of a bachelor, the normal deduction should be of 50%. The observation of the Supreme Court on this question read as follows: “31. Where the deceased was a bachelor and the claimants are the parents, the 14 first appeal no.144 of 2005 deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. 15 first appeal no.144 of 2005 32. Thus even it the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of he bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” In view of the decision of the Supreme Court, the submission made by Mr. Afonso that the deduction for personal expenses ought to have been of 50% must be accepted. It has been sought to be argued on behalf of the respondents that Sandesh was 16 first appeal no.144 of 2005 residing along with his parents and also having food with them. Therefore, his personal expenses were far less than one-third. This argument is required to be rejected since it is not the savings made by the deceased which are to be taken into account, but the contributions to the family made by him. Further if this argument of the respondents is to be accepted, the contribution of Sandesh to the family would be far lesser leading to further deduction. With the deduction of 50%, the yearly income of Sandesh would be of Rs.60,000/- which amount is to be taken as the multiplicand for the purpose of computation of compensation. The Tribunal had initially adopted multiplier of 8 which was increased to 11 by the order on the review application. This, increase is sought to be challenged by Mr. Afonso. However, since the order of review application records that the appellants had given a concession on the argument of increase of the multiplier, I am not inclined to disturb the same. With the multiplier of 11, the amount of compensation payable to the respondents would be Rs.6,60,000/- (Rupees six lakhs sixty thousand only). With the additions of Rs.5000/- (Rupees five 17 first appeal no.144 of 2005 thousand only) towards pain, shock and suffering and Rs.2000/- (Rupees two thousand only) towards funeral expenses awarded by the Tribunal, the total compensation payable to the respondents would be Rs.6,67,000/- (Rupees six lakhs sixty seven thousand only). There will be no change in the interest awarded by the Tribunal as the same is found reasonable. 10. The appeal is partly allowed. Mr. Afonso states that the appellant has deposited the entire decretal amount in this Court at the time of admission of appeal. In that case the respondents shall be at liberty to withdraw the amount of compensation awarded to them with the interest accrued thereon and the appellant will be at liberty to withdraw the balance of the amount. R. P. SONDURBALDOTA, J. RD/ap