F.A.No. 476/11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR FIRST APPEAL NO.476 OF 2011 New India Assurance Company Limited, through Branch Manager, Amravati, Seven Hills Building, Amravati, through the Manager, Regional Office, Seminary Hills, Nagpur. .....APPELLANT VERSUS 1] Smt. Shantabai Devendra Bahekar, aged about 50 years, occ: household 2] Devendra Mahadeorao Bahekar, aged about 54 years, occ: Nil, both r/o Ganesh Nagar, Ward No.3, Borgaon (Meghe) District :Wardha 3] Rajendra Sukhdeo Shinde, aged about 31 years, occ :Driver, r/o Arangaon (Dumla), tah Shrigonda, distt. Ahmednagar 4] Sau. Asha Vasant Kaware, aged -not known, occ : Vehicle Owner, r/o Ganesh Nagar, Wadegaon Sheri, District : Pune. ….RESPONDENT Shri A.J. Pophaly, advocate for appellant Shri Bharat Vora, advocate for respondent no.1&2. F.A.No. 476/11 2 CORAM:A.B. CHAUDHARI,J. DATE : 13/12/2011. ORAL JUDGMENT Being aggrieved by the judgment and award dated 29.1.2011 passed by the Member, Motor Accident Claims Tribunal, Wardha in Claim Petition No.108 of 2009, awarding compensation in the sum of Rs.8,00,000/- with 7% interest, the present appeal has been filed by the appellant – insurance company. 2] In support of the appeal Mr. Pophaly, learned counsel for the appellant submitted that the Tribunal committed an error in not finding that the truck as well as car were involved in a head- on collusion which is corroborated by the spot panchanama and the sketch map attached thereto. Therefore, the Tribunal ought to have inferred that the car driver namely deceased was guilty of contributory negligence. Consequently, the Tribunal ought to have deducted the compensation due to contributory negligence. F.A.No. 476/11 3 3] The Tribunal went on surmises and conjectures to hold that the deceased must have been earning Rs.400-500/- per day and Rs.10,000/- per month, by running his Digital Photo Center and therefore, in the absence of cogent and proper evidence to the satisfaction of the Tribunal, such an abrupt inference about he income could not have been drawn. 4] The Tribunal committed an error in not following the law laid down by the Apex Court that in case of a bachelor the deduction should be made to the extent of 50% of the income. But the Tribunal deducted only 1/3rd thereof. 5] The Tribunal committed an error in adopting the multiplier of 18 looking to the age of the deceased rather than the age of parents and therefore, the the finding in this regard is illegal and incorrect. 6] Mr. Pophaly, therefore prayed for allowing the present appeal by setting aside the impugned judgment and award. He cited the following judgments in support of his contentions: i] 2006 AIR SCW 1116 [Bijoy Kumar Dugar ..vs. Bidyadhar Dutta & others] F.A.No. 476/11 4 ii] 2004 (1)T.A.C.3(S.C.) [Municipal Corporation of Greater Bombay ..vs.. Shri Laxman Iyer and another iii] 2009(1) T.A.C.794(S.C.)[Syed Basheer Ahamed and others ..vs.. Mohd Jameel and another] 7] Per contra, Mr. Vora, learned counsel for the claimants opposed the appeal and argued that the deceased though was unmarried was only of 28 years age. No error has been committed by the Tribunal in deducting only 1/3rd of the income, which is a settled position and it is not necessary that the bachelor would spent 50% of the income earned by him. 8] Learned counsel then argued that that the multiplier of 18 adopted by the Tribunal is therefore legal, correct and proper and the prayer made by the appellant / insurance company to reduce it is wholly unsustainable in law. 9] He then argued supporting the impugned judgment that there is no evidence whatsoever to come to a conclusion about the contributory negligence on the part of the driver of the Maruti car. He argued that the appellant / insurance company miserably failed to produce any such evidence. According to him there is nothing on record to infer about the contributory negligence F.A.No. 476/11 5 of the driver of the Maruti car. He then argued that the age of father of the deceased was 54 years whilst that of mother was 50 years, at the relevant time and the average would come to 52 years and therefore accordingly, in the alternative the court may decide the multiplier. As to the income of the deceased he argued that there is Income Tax Return of the last point of time, showing income of deceased as Rs.1,02,000/- for the income tax year 2008-2009 and there is no reason why the said return should be brushed aside. He supported his submission by contending that in 2007-2008 the Income Tax Return was for Rs.75,325/- and there is no reason why the said figure of Rs.1,02,000/- in 2008-2009 should be disbelieved, as it cannot be said that the deceased showed his income on higher side in the year 2007-2008. There is bound to be increase in income and that is why the income of Rs.1,02,000/- in the year 2008-2009 should be believed. 10] I have gone through the impugned judgment and award. Having heard learned counsel for the rival parties, I frame the following points for determination : SR POINS FINDINGS 1 Whether the Tribunal committed an error in holding that the Maruti 800 - Car F.A.No. 476/11 6 driver – Prashant could be held guilty of contributory negligence in the accident involving the head on collusion? No 2 Whether the Tribunal committed an error in assuming income of the deceased at Rs.10,000/- per month or Rs.1,20,000/- per year? Yes. Income ought to have been taken at Rs.1,00,000/- per annum 3 Whether the Tribunal committed an error in deducting only 1/3rd of the income when admittedly deceased was bachelor? Yes. The deduction should have been 50% of the income. 4 Whether the Tribunal committed an error in adopting multiplier of 18? Yes. Multiplier of 11 should have been adopted 5 What order? As per final order REASONS 11] With the assistance of the counsel for both the parties, I have gone through the spot panchanama and the sketch map attached thereto. It is not in dispute that the appellant/insurance company did not examine a single witness in support of the defence to prove contributory negligence of the driver of the Maruti car. F.A.No. 476/11 7 However, appellant /insurance company sought to rely on the spot panchanama only as a document to support its claim about the contributory negligence. Careful perusal of the spot panchanama to my mind does not establish that the car driver of Maruti 800 could be said to have been guilty of any contributory negligence in the head on collusion. The burden to prove that there was contributory negligence on the part of the driver of the car was certainly on the appellant who propounded it. In the instant case the insurance company has not discharged the said burden. I therefore, hold that there was no contributory negligence on the part driver of the car Maruti 800. The Tribunal has assumed that the deceased must have been earning Rs.400-500/- per day from his business and Rs.10,000/- per month. Tribunal rejected the Income Tax Return for the previous years. There was no other evidence on record to establish the fact that he was earning Rs.400- 500/- per day or that he was earning Rs.10,000/- per month. In the absence of any material I find that the Tribunal committed an error in holding that the income of deceased was Rs.1,20,000/- per year. The income as per return for the year 2007- 2008 was Rs.75,000/- looking to the young age of the deceased and the chances of further increase in income from his business, I think his income by preponderance of probabilities can be safely F.A.No. 476/11 8 arrived at Rs.1,00,000/- per annum as was shown in the return for the year 2008-2009. Hence I answer the point no.2 in the affirmative. 12] The Tribunal has adopted multiplier of 18 considering the age of the deceased. The Tribunal ignored the fact that the deceased was a bachelor and in case of bachelor the multiplier ought to have been in normal course adopted with regard to the ages of the parents. Hence there is mistake on the part of the Tribunal in adopting multiplier of 18. I find from the ages of the parents that average comes to 52 and 11 as the multiplier. Hence I hold that the multiplier of 11 should have been adopted by the Tribunal. 13] The Tribunal has deducted 1/3rd of the income again forgetting the fact that the deceased was a bachelor. In the light of the paragraph 8 from the said decision of the Supreme Court, the deduction to be made should be 50% which comes to 50,000/- in this case. Paragraph 8 of the judgment in case of Bijoy Kumar, reads thus: “8- To appreciate the respective contentions of the learned counsel for the parties, we have gone through the relevant material on record. It is by now well settled that the compensation should be the pecuniary loss to the dependents by the death of a person concerned. While F.A.No. 476/11 9 calculating the compensation, annual dependency of the dependents should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependents, are the basic determinative factors. The resultant figure should then be multiplied by a 'multiplier'. The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependents, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to one's earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family, i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs.8,000/- to Rs.10,000/- per month in the span of his life time cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the F.A.No. 476/11 10 claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years at the time of the accident. The MACT has accepted Rs.4,000/- per month, as the earning of the deceased and after deducting Rs.400/- per month for his pocket expenses, the remaining sum of Rs.3600/- has been divided into three equal shares, out of which two shares, i.e. Rs.2400/- per month or Rs.28,800/- (wrongly mentioned as Rs.28,000/- in the award) were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of R.28,800/- X 12 =3,45,600/- was awarded as compensation. In addition thereto, a sum of Rs.2,000/- has been given for funeral expenses and a further amount of Rs.6,000/- under the head “Loss of Estate”. The total sum awardable is Rs.3,53,600/- but since the deceased was held liable for contributory negligence, the liability of the insurer with whom the bus in question was insured is fixed at 50% i.e. to the extent of Rs.1,76,800/- with interest at the rate of 10% per annum from the date of the filing of the claim application till the date of payment. The deceased, a young boy of 24 years old, was unmarried and the claimants were his father and mother, the dependency has to be calculated on the basis that within two or three years the deceased would have married and raised family and the monthly allowance he was giving to his parents would have been cut down. Thus, in our view, the MACT has awarded just and reasonable F.A.No. 476/11 11 compensation to the claimants.” In the light of the above discussion in the end I come to a conclusion that the income of the deceased should have been taken at Rs.1,00,000/- per year minus 50% of the dependency ought to have been calculated at Rs.50,000/- per year. By applying the multiplier of 11, the final amount comes to Rs.5,50,000/-. Hence, the Tribunal ought to have awarded an amount of Rs.5,50,000/-. 14] In the result, I make the following order: ORDER 1] First Appeal 476/2011 is partly allowed with proportionate cost. 2] The judgment and award dated 29.1.2011 passed by the Member, Motor accident Claims Tribunal, Wardha in Claim Petition No.108 of 2009, is modified as under: a] The claimants are held entitled to compensation of Rs.5,50,000/-. b] Claimants would be entitled to interest on the amount of compensation, for the period and at the rate granted by the Tribunal c] Award be drawn up, accordingly. JUDGE SMP.