Case: National Insurance Company Limited Vs. Mrs.Jyoti Niranjan Vaswani &amp; Others

by the strict rules of evidence. We find that apart from the said certificate at Exh.27 which is on the letterhead of the company, there are large number of certificates filed on record on the letterhead of Mobil Shipping Company Limited showing the salary/income of the deceased right from 1986-1987. Therefore, it is not possible to accept the submission that the certificate at Exh.27 is not a genuine document. We find no fault with the Tribunal for placing reliance on the said certificate to arrive at conclusion that income of the deceased was US $23,544/- at the time of his death. Exchange rate of Rs.42/- per US $ has been taken by the Tribunal on which there is no specific challenge.8. As far as age of the deceased is concerned, in the examination-in-chief, the first respondent deposed that age of her husband was 36 years. Age of the first respondent in the affidavit filed in October 2009 is disclosed as 46 years. So her age at the time of accident was above 35 years. It is true that only a photo copy of the passport of the deceased was produced and not the original. The passport discloses that the date of birth of the deceased was 28th February 1962. A suggestion was given in the cross examination of the first respondent that the age of the deceased was more than 40 years. Considering the factual aspects, it can be safely said that the age of the deceased at the time of accident was above 36 years and not more than 40 years. Therefore, going by the decision of the Apex Court in case of Sarla Verma (supra), the appropriate multiplier will be 15. The Tribunal has committed an error by taking the multiplier at 16.9. As far as number of dependants are concerned, in the affidavit in lieu of examination-in-chief, the first respondent has stated that she herself being the widow, the second respondent being the minor daughter of the deceased and the third and fourth respondents being the parents of the deceased, were dependent on the deceased. The respective ages of the third and fourth respondents as disclosed from the claim application filed in the year 1999 were 72 and 61 respectively. There is absolutely no cross examination on this aspect set out in the affidavit. Had there been even a suggestion given that the father of the deceased was not dependent on the deceased, there would have been substance in the grievance made by the learned counsel for the appellant regarding non examination of the father of the deceased. The version in the affidavit in lieu of examination in chief that all four claimants were depending on the deceased has gone unchallenged. Therefore, in view of what is held in the case of Sarla Verma (supra) by the Apex Court, 1/4th amount will have to be deducted on account of personal expenditure for the purpose of calculating multiplicand. Therefore, the yearly dependency taken by the Tribunal cannot be faulted with.10. Now as regards interest, there cannot be any dispute about rate of interest at 7.5% p.a considering the fact that the claim petition is of 1999. Perusal of the Roznama shows that notices were issued to the opponents in the claim petition on 24th June 1999. At the stage of hearing of the application under section 140 of the said Act, the 5th respondent (owner of the vehicle) did not enter appearance and only the appellant insurer entered appearance. Issues were framed in April 2006. Thereafter, the petition remained pending for service of notice to the insured-owner of the vehicle. It is not the case that the respondent Nos.1 to 4 had not paid process fees. Notices were issued from time to time which were not served. We find that only on 12th November 2008, an application for adjournment was moved by the claimants to enable them to take steps. Thereafter, an application at Exh.13 was filed by the appellant on 18th June 2010 seeking leave under section 170(b) of the said Act. The application was allowed by order dated 5th October 2010. Therefore, the claimants cannot be blamed for delay up to the said date. Perusal of the Roznama shows that thereafter only on one or two occasions, an application for adjournment was made on behalf of the claimants. Another grievance made by the learned counsel for the appellant was that after the evidence was closed, an application was made by the claimants seeking permission to examine one more witness. We find that the application was made by the claimants seeking permission to examine Captain Lavji Mistry. At the stage when the case was at the stage of argument, an objection was raised by the Appellant regarding the proof of income of the deceased. The Tribunal accordingly allowed the application and that is how the said witness was examined by the claimants. We must note here that though leave under section 170 of the said Act was granted as aforesaid by order dated 5th October 2010, no additional or further written statement was filed by the appellant.11. Considering the aforesaid circumstances, it is obvious that the claimants cannot be blamed for delay in disposal of the claim petition. Therefore, objection regarding grant of interest from the date of claim application will have to be rejected.12. We have already found that the yearly dependency arrived at by the Tribunal at Rs.4,96,896/- on the basis of the yearly income of the deceased at US $ 23,544/- is appropriate. We may note that 33% deduction has been made on account of income tax, education cess and professional tax. If multiplier of 15 is applied, the compensation comes to Rs.74,53,440/-. By affidavit dated 27th August 2012 filed in the application for condonation of delay, the first to fourth respondents have confined their claim to a sum of Rs.67,25,290/- with interest thereon. Therefore, we will have to reduce the compensation to the said amount and to that extent, the appeal must succeed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. We have carefully considered the submissions. As far as first submission about contributory negligence is concerned, we may note here that the appellant obtained a leave under section 170 of the said Act to contest the claim application on all grounds which are available to the insured. Written statement of the appellant contains mere denial. The Tribunal has relied upon the evidence of eye witness Deepak Agarwal who was examined in companion claim application. The learned Member of the Tribunal observed that the evidence of the said eye witness on the aspect of negligence of the driver of the truck has not been controverted in the cross examination. The Tribunal was dealing with the three claim petitions arising out of the same accident. Therefore, the Tribunal was relying upon the evidence of the eye witness who was examined in companion claim petition. It is well settled that the Tribunal is not bound by the strict rules of evidence. The Tribunal accepted the evidence of the said witness Deepak Agarwal. On the other hand, there was no effort made by the appellant to examine the driver of the offending truck or any other eye witness. Therefore, there is no reason to disturb the finding of the Tribunal that the accident occurred on account of negligence of the driver of the truck which was insured with theperusal of the cross examination it appears that the Advocate for the appellant did not dispute that Captain Mistry was employed with the said company. Only suggestion given to the witness was that he was not the General Manager of the said company during the relevant period. He stated that he was not present when Mr.Kennady signed the said certificate. However, he identified the said signature of Mr.Kennady on the letter at Exhibit 27. Therefore, we find that no fault can be found with the learned Chairman of the Motor Accident Claim Tribunal, Mumbai when he marked the certificate as exhibit. We must note here that the Tribunal constituted under the said Act is not bound by the strict rules of evidence. We find that apart from the said certificate at Exh.27 which is on the letterhead of the company, there are large number of certificates filed on record on the letterhead of Mobil Shipping Company Limited showing the salary/income of the deceased right fromTherefore, it is not possible to accept the submission that the certificate at Exh.27 is not a genuine document. We find no fault with the Tribunal for placing reliance on the said certificate to arrive at conclusion that income of the deceased was US $23,544/at the time of his death. Exchange rate of Rs.42/per US $ has been taken by the Tribunal on which there is no specific challenge.8. As far as age of the deceased is concerned, in thethe first respondent deposed that age of her husband was 36 years. Age of the first respondent in the affidavit filed in October 2009 is disclosed as 46 years. So her age at the time of accident was above 35 years. It is true that only a photo copy of the passport of the deceased was produced and not the original. The passport discloses that the date of birth of the deceased was 28th February 1962. A suggestion was given in the cross examination of the first respondent that the age of the deceased was more than 40 years. Considering the factual aspects, it can be safely said that the age of the deceased at the time of accident was above 36 years and not more than 40 years. Therefore, going by the decision of the Apex Court in case of Sarla Verma (supra), the appropriate multiplier will be 15. The Tribunal has committed an error by taking the multiplier at 16.9. As far as number of dependants are concerned, in the affidavit in lieu ofthe first respondent has stated that she herself being the widow, the second respondent being the minor daughter of the deceased and the third and fourth respondents being the parents of the deceased, were dependent on the deceased. The respective ages of the third and fourth respondents as disclosed from the claim application filed in the year 1999 were 72 and 61 respectively. There is absolutely no cross examination on this aspect set out in the affidavit. Had there been even a suggestion given that the father of the deceased was not dependent on the deceased, there would have been substance in the grievance made by the learned counsel for the appellant regarding non examination of the father of the deceased. The version in the affidavit in lieu of examination in chief that all four claimants were depending on the deceased has gone unchallenged. Therefore, in view of what is held in the case of Sarla Verma (supra) by the Apex Court, 1/4th amount will have to be deducted on account of personal expenditure for the purpose of calculating multiplicand. Therefore, the yearly dependency taken by the Tribunal cannot be faulted with.10. Now as regards interest, there cannot be any dispute about rate of interest at 7.5% p.a considering the fact that the claim petition is of 1999. Perusal of the Roznama shows that notices were issued to the opponents in the claim petition on 24th June 1999. At the stage of hearing of the application under section 140 of the said Act, the 5th respondent (owner of the vehicle) did not enter appearance and only the appellant insurer entered appearance. Issues were framed in April 2006. Thereafter, the petition remained pending for service of notice to theof the vehicle. It is not the case that the respondent Nos.1 to 4 had not paid process fees. Notices were issued from time to time which were not served. We find that only on 12th November 2008, an application for adjournment was moved by the claimants to enable them to take steps. Thereafter, an application at Exh.13 was filed by the appellant on 18th June 2010 seeking leave under section 170(b) of the said Act. The application was allowed by order dated 5th October 2010. Therefore, the claimants cannot be blamed for delay up to the said date. Perusal of the Roznama shows that thereafter only on one or two occasions, an application for adjournment was made on behalf of the claimants. Another grievance made by the learned counsel for the appellant was that after the evidence was closed, an application was made by the claimants seeking permission to examine one more witness. We find that the application was made by the claimants seeking permission to examine Captain Lavji Mistry. At the stage when the case was at the stage of argument, an objection was raised by the Appellant regarding the proof of income of the deceased. The Tribunal accordingly allowed the application and that is how the said witness was examined by the claimants. We must note here that though leave under section 170 of the said Act was granted as aforesaid by order dated 5th October 2010, no additional or further written statement was filed by the appellant.11. Considering the aforesaid circumstances, it is obvious that the claimants cannot be blamed for delay in disposal of the claim petition. Therefore, objection regarding grant of interest from the date of claim application will have to be rejected.12. We have already found that the yearly dependency arrived at by the Tribunal at Rs.4,96,896/on the basis of the yearly income of the deceased at US $ 23,544/is appropriate. We may note that 33% deduction has been made on account of income tax, education cess and professional tax. If multiplier of 15 is applied, the compensation comes to Rs.By affidavit dated 27th August 2012 filed in the application for condonation of delay, the first to fourth respondents have confined their claim to a sum of Rs.67,25,290/with interest thereon. Therefore, we will have to reduce the compensation to the said amount and to that extent, the appeal must succeed.