1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 528 OF 1995 Municipal Corporation of Gr. Mumbai ... Appellant v/s Govind Krishnaji Zunzarrao & ors. ... Respondents Mr.A.Y.Sakhare with Mr.Vinod Mahadik i/by M.H.Chheda & M.R.Kulkarni for the appellants. Mr.R.S.Datar for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 25TH MARCH, 2010 ORAL JUDGMENT: 1. The first appeal has been filed against the order of the Motor Accident Claims Tribunal, Thane, in M.A.C. No.552 of 1990. 2. The undisputed facts in the present case are as follows:- Madhav Govind Zunzarrao was fatally injured in an accident which occurred on 22.5.1990 near Kasara Bridge. 2 He was working as a supervisor with a building contractor and was drawing monthly salary of Rs.5000/-. It appears that the deceased was travelling in a jeep owned by the Municipal Corporation at about 4.00 a.m. This was because the driver of the jeep wanted to contact a person whose residence was known to the deceased. The driver was an employee of the Corporation and was driving in a rash and negligent manner. The driver lost control of the jeep and dashed against the cement guard. The jeep was thrown down the valley of 70 ft. and the deceased received multiple injuries. 3. The applicants who are the parents and the brothers of the deceased filed an application for compensation under the provisions of the Motor Vehicles Act. They claimed an amount of Rs.2,50,000/- as compensation together with interest at the rate of 20% per annum from the date of the application till realization. 4. This application was opposed by the opponent Corporation, the appellant in the present case, by contending that it was not liable to pay any amount as compensation to the applicants. It was pleaded that the driver of the vehicle was not on official duty and was not driving the vehicle at the instance of the Corporation or its officers. It was contended 3 that the accident had occurred beyond the municipal limits of the Corporation and, therefore, it was not liable. The Corporation further contended that the driver had no instructions to ply the vehicle beyond the limits of the Corporation. It was further pleaded that he had therefore unauthorizedly and unlawfully taken the jeep outside the municipal limits. The Corporation pointed out that the driver had no authority to drive any passenger who had no relationship with the Corporation in the vehicle. It was also contended that the driver of the jeep had initially refused to permit the deceased to enter the vehicle as he was under the influence of alcohol. However, the applicant who was not an employee of the Corporation boarded the jeep at his own risk and, therefore, the Corporation was not liable. 5. The Tribunal, after considering the evidence led by the parties, has allowed the application. The claimants have been granted an amount of Rs.6,32,000/-, inclusive of the amount due under no fault liability. Interest at the rate of 12% per annum from the date of the application till realization has also been awarded. 6. Mr.Sakhare, the learned counsel appearing for the Corporation submits that the Corporation was not liable or 4 responsible for the accident as the driver was not on duty. He submits that the evidence on record indicates that the driver had no permission to drive the jeep outside the limits of the Corporation. He further points out that the evidence led by the Corporation indicated that the deceased had entered into the jeep under the influence of liquor and, therefore, the responsibility for paying any compensation to the claimants cannot be foisted on the Corporation. The other submission of Mr.Sakhare is that the quantum awarded by the Tribunal is excessive, even assuming the Corporation is liable to pay the compensation. He points out that the Tribunal has accepted that the monthly earnings of the deceased were Rs. 4,000/-. He submits that although the Tribunal had stated that it was necessary to deduct 1/3 of the income towards the personal expenses of the deceased, the Tribunal has only deducted Rs.600/- from Rs.4,000/-. He submits that a simple arithmetical calculation would indicate that 1/3 of Rs.4000/- is not Rs.600/- but Rs.1333/-. According to the learned counsel, the Tribunal ought to have calculated the compensation based on Rs.2667/-. The learned counsel points out that even if the multiplier of 15 is accepted, the total compensation payable is Rs.4,50,060/-. The learned counsel submits that the multiplier of 15 is too high and contrary to the decision of the Apex Court in the case 5 of Municipal Corporation of Gr. Bombay v/s Laxman Iyer & anr., reported in 2004 A.C.J. 53. 7. Mr.Datar appearing for the claimants submits that the Corporation has miserably failed to prove that it was not liable for the accident. He submits that there was no evidence on record to indicate that the driver of the jeep was not authorized to drive the jeep beyond the municipal limits. He further submits that the Corporation has not bothered to examine the other persons who were traveling in the jeep. According to him, their testimonies would be the best evidence available as they were eye witnesses to the accident. He then submits that the deceased was the only earning member of his family. Admittedly, his other brothers who were the applicant Nos.3 to 5 were dependents and, therefore, the Tribunal had rightly deducted an amount of Rs. 600/- from the earnings of the deceased. He then submits that the Corporation had failed to prove that prior permission was required for driving its vehicle out of its municipal limits. He further submits that, in view of the judgment in Sarla Verma & ors. v/s Delhi Transport Corporation & anr., reported in (2009) 6 S.C.C. 121, it cannot be said that the Tribunal has committed any error while awarding the compensation. He points out that the Supreme Court has, in 6 this case, considered the multipliers as envisaged in the judgments in Kerala S.R.T.C. v/s Susamma Thomas, reported in (1994) 2 S.C.C. 176, and U.P. S.R.T.C. v/s Trilok Chandra reported in (1996) 4 S.C.C. 162, and also the multiplier in Trilok Chandra’s case as clarified in New India Assurance Co. Ltd. v/s Charlie, reported in (2005) 10 S.C.C. 720. According to Mr.Datar, the multiplier approved by the Supreme Court is 17 when the age of the deceased is between 26 to 30 years. He submits that admittedly, the age of the deceased was 30 years and, therefore, the multiplier of the 15 used by the Tribunal cannot be considered to be excessive. 9. I have, with the assistance of the learned counsel appearing for the parties, perused the evidence on record. I am of the view that the Tribunal has committed no error by concluding that the Corporation is liable for the accident in which the deceased, Madhav, met with fatal injuries. The evidence on record indicates that the driver was not alive when the evidence was recorded. However, undoubtedly, the others who were travelling in the jeep were available and, therefore, the Corporation could have examined those persons. The Junior Overseer, who was examined as the Corporation’s witness, has stated that the jeep was to be 7 returned, depending on the work of the Corporation. While deposing, this witness has not placed any documentary evidence on record to indicate that the jeep could not be driven beyond the local limits of the Corporation. He admitted that the jeep had been handed over to the driver on the fateful day. In my opinion, the Tribunal has appreciated the evidence on record in its proper perspective and has held that the Corporation is vicariously liable for the accident which occurred when its driver was driving the jeep in which the deceased was travelling. 10. As regards the quantum, the submission of the learned counsel for the Corporation is that the multiplier used is excess. In the case of Laxman Iyer (supra), the Supreme Court was considering the case of composite negligence vis- a-vis contributed negligence. The Supreme Court in this case, while fixing the compensation payable, has observed that the multiplier 15 adopted by the Tribunal and confirmed by the High Court was high. The Court observed that considering the age of the claimants it could never exceed 10 even by adopting the most liberal standards. These observations were made by the Supreme Court after considering the judgment in the case of Susamma Thomas (supra), and its earlier judgments. 8 11. In the case of Sarla Verma & ors., the Supreme Court has considered what should be the approach of the Tribunals/Courts while assessing compensation payable to the claimant as “just compensation”. The Supreme Court has observed that the assessment, which involves certain hypothetical consideration, should be objective. It has further held that “just compensation” is adequate compensation which is fair and equitable, in the facts and circumstances of the case, to make good the loss suffered as a result of the loss as far as money can do so, by the well settled principles relating to award of compensation. The Supreme Court has observed that it is not intended to be a bonanza, largesse or source of profit. The Supreme Court has relied on the observations in its decision in the case of Kerala S.R.T.C. v/s. Susamma Thomas and U.P. S.R.T.C. v/s Trilok Chandra. In para 18, the Supreme Court has observed thus - “18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased; (b) income of the deceased; and (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are: 9 (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. 12. The Supreme Court has then delineated in para 19 of the judgment, the steps which the Tribunal should follow for determining the compensation, so as to have uniformity and consistency. Para 19 reads as under :- “19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well settled steps: Step 1 (Ascertaining the multiplicand): The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand. Step 2 (Ascertaining the multiplier): Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having 10 regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table and reference to the age of the deceased. Step 3 (Actual calculation): The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the “loss of dependency” to the family. Thereafter, a conventional amount in the range of Rs.5000 to Rs.10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased. The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added. 13. The Supreme Court has then considered the multipliers indicated in the cases of Susamma Thomas, Trilok Chandra and Charlie (supra) for claims under Section 166 of the Motor Vehicles Act in juxtaposition with the multiplier mentioned in the Second Schedule for claims under Section 163-A of the Motor Vehicles Act. In para 42, the Supreme Court has observed thus - “42. We therefore hold that the multiplier to be used should be as mentioned in Col.(4) of the table above (prepared by applying Susamma 11 Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” Thus, the Supreme Court approved the multiplier scale in Trilok Chandra, as clarified in Charlie’s case. 14. Applying these tests, the multiplier which ought to have been used in the present case is 17 and not 15. Therefore, the question of calculating compensation on the basis of 10 as the multiplier does not arise. Therefore, Mr.Sakhare’s submission that the multiplier should be 10 is rejected. While considering what should be the deduction on account of personal and living expenses of the deceased, the Supreme Court observed thus - “48. The appellants next contended that having regard to the fact that the family of the deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one-third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one- third in all cases (unless the calculation is under Section 163-A read with the Second Schedule to the Motor Vehicles Act. The percentage of deduction on account of personal and living 12 expenses can certainly vary with reference to the number of dependent members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependents.” “49. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on traveling transportation and other needs. Therefore we are of the view that interest of justice would be met if one-fifth is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependents) is determined as Rs.57,658/- per annum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore, the total loss of dependency would be Rs.57,658 x 15 = Rs.8,64,870/-.” 15. Thus, it is clear that the rule of deducting 1/3 of the amount of the monthly income of the deceased towards his personal expenses is not a sacrosanct. In the present case, the Tribunal has deducted Rs.600/- from the amount of Rs. 4000/- by considering the fact that the deceased was the only earning member of a large family. Three of his brothers were dependents and were speech and hearing impaired and had no independent income. Therefore, the deceased was supporting his parents and his three brothers. The Tribunal has therefore, in my opinion, rightly deducted the amount of Rs.600/-. 16. The first appeal is, therefore, dismissed. 17. No order as to costs. ..... 13