Bombay High Court
Charandas S/O Bhiwaji Ramteke vs New India Assurance Company on 16 August, 2013
Author: A. P. Bhangale
Bench: A. P. Bhangale
1 First Appeal No.618/2003
Judgment contd/-...
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 618 OF 2003
1. Charandas s/o Bhiwaji Ramteke
Aged about 55 years, Occu-Labour
2. Smt. Rasika w/o Charandas
Ramteke, Aged about 52 Years,
Occu-Odd Jobs.
3. Ku. Padma d/o Charandas Ramteke
(Having married to Chandrakant
Gaikwad), Aged about 25 Years,
Occupation-Nil.
4. Ku. Darshana d/o Charandas
Ramteke, (Having married to
Vinod Sirsat), Aged about 23 Years,
Occupation-Nil.
5. Ku. Manda d/o Charandas
Ramteke, Aged about 27 Years,
Occupation Nil.
6. Ku. Rajashri d/o Charandas
Ramteke, Aged about 19 years,
Occupation-Nil.
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2 First Appeal No.618/2003
Judgment contd/-...
All are residents of Medical Road,
Near Water Tank, Rambagh,
Nagpur. APPELLANTS
VERSUS
1. New India Assurance Company
Ltd. Zansi Rani Square, Sitabuldi,
Wardha Road, Nagpur.
2. Rahul s/o Rai kumar Mishrikotkar
Proprietor Rahul Travels, Tapadia
Terraces, Adalat Road,
Aurangabad.
3. Dilawar Khan s/o Galkhan (DEAD)
(Deleted as per Tribunal below
Exh.50. Even on Exh.1 order
dt/-12.2.2001 by Tribunal makes
clear that name of Res. No. 3 in
Judgment and Award appears due
to clerical mistake)
4. United India Assurance Company
Ltd. City Branch No.4, Shankar
Nagar Square, Nagpur.
5. Manoj Anand Franklin
Occupation-Business, R/o Near
T.B.Ward of Medical College Road,
Ajni, Nagpur.
6. Shrikant s/o Damodar Patil
Occupation-Service, R/o Near
Water Tank, Medical Road,
Rambagh, Nagpur. RESPONDENTS
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3 First Appeal No.618/2003
Judgment contd/-...
COUNSELS APPEARED :
Mrs. H. N. Prabhu, Advocate for Appellants
Mr. Shashibhushan Wahane, Advocate for Respondent No.1
Mr. M. P. Kalar, Advocate for Respondent No.4
CORAM : A. P. BHANGALE, J.
DATED : 16th AUGUST, 2013
ORAL JUDGMENT
1. The appeal is directed against the Judgment and Award dated 15th July, 2003, whereby the learned Member of the Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 378/1997 awarded total compensation in the sum of Rs. 96,000/- only inclusive of no fault liability after deciding proportionate liability of Respondent no. 1 Insurer and Respondent no. 2 Owner jointly and severally to the extent at 25%, while liability of Respondents no. 4 to 6 was determined jointly and severally at 75% of the said amount.
The Tribunal also awarded payment of interest at the rate of Rs. 9% per annum on the awarded sum from the date of the application till ::: Downloaded on - 27/08/2013 21:18:27 ::: 4 First Appeal No.618/2003 Judgment contd/-...
realization. The claim was made in the sum of Rs. 4,00,000/- (Four Lakhs) before the Tribunal. After hearing the learned Advocates representing the parties and after careful perusal of the evidence available on record at thread bare, including the impugned judgment and award passed by the Tribunal, the only point that arises for my consideration is : Whether the compensation awarded by the Tribunal in the sum of Rs. 96,000/- is just and proper ? My answer is in the emphatic negative as compensation awarded by the Tribunal need to be enhanced for following reasons:-
2. The finding regarding proportionate liability recorded by the Tribunal is not in dispute. The fact that young Pruthviraj, aged about 20 years died in road accident involving the collusion and the finding as to composite negligence of the motor vehicles Jeep bearing registration no. MP-22-A-1995 and the Luxury Bus registration no. MH-20-A-3819 is not in dispute. It is not disputed that the Jeep bearing registration No. MP-22/A-9995 was owned by original Respondent no. 5, which was insured with original ::: Downloaded on - 27/08/2013 21:18:27 ::: 5 First Appeal No.618/2003 Judgment contd/-...
Respondent no. 4 and the offending Luxury Bus bearing registration no. MH-20/A-3819 was owned by original Respondent no. 2, which was insured with original Respondent no. 1 as on the date of the motor vehicle accident in the present case .Thus question which is to be answered in this appeal is, as to what is quantum of just and fair compensation, which could have been awarded to the claimants/dependents of the young victim Pruthviraj, who died in the motor vehicle accident at the age of 20 years.
3. Learned Advocate for the appellants without disputing the finding as to proportionate liability for composite negligence on the part of drivers of the offending motor vehicles and consequent liability of the owners and insurers of the offending motor vehicles i.e. Jeep as well as Luxury Bus concerned respectively, made a grievance that amount of compensation awarded by the Tribunal was utterly inadequate, as according to Mrs Prabhu, the victim young Prithviraj was only daily wage bread earner for the family serving in Hingana forest range earning about Rs. 21.50 Ps. per day ::: Downloaded on - 27/08/2013 21:18:27 ::: 6 First Appeal No.618/2003 Judgment contd/-...
according to his father, who deposed as claimant before the Tribunal.
Learned Advocate Mrs. Prabhu for the appellants, therefore, contended with reference to ruling in Sarla Verma & Ors. V/s Delhi Transport Corporation & Anr., reported in AIR 2009 Supreme Court 3104 as also making reference to ruling in Santosh Devi V/s National Insurance Company Limited and Others, reported in (2012) 6 Supreme Court Cases 421, to argue that even in cases of self-employed victims, increases in their income prospectively ought to be considered by the tribunal while granting reasonably just and adequate compensation.
4. According to learned Advocate Mrs Prabhu, there were parents of the victim as well as four unmarried sisters solely dependent on him. Thus, six members in the family were left behind by a bachelor victim Pruthviraj, who died in the accident at young age. Thus, it is contended that net amount of Rs. 21.50 Ps. per day ought to have been considered as daily income of the deceased Pruthviraj as also prospective increases in his income. Then ::: Downloaded on - 27/08/2013 21:18:27 ::: 7 First Appeal No.618/2003 Judgment contd/-...
considering six dependents of Pruthviraj Tribunal ought to have considered his daily income after deduction of 1/4th towards his personal expenses as indicated in Sarla Verma's case. I have also heard Shri Shashibhushan Wahane and Shri M. P. Kalar, Learned Advocates for the respondents who sought to support the impugned Judgement and award on the ground that the victim was a bachelor and left behind parents and unmarried sisters namely Padma, Darshana, Manda and Rajashri of which Padma was already married, others could marry in near future. According to them the compensation awarded by the Tribunal was adequate.
5. Thus, if daily income of young victim Pruthviraj is considered as on the date of the accident i.e 29-07-1992 at the rate of Rs. 30/- per day (Rs 20/- + Rs 10/- ) inclusive of his future prospects of increasing incomes, then after deducting sum of Rs.
7.50/- as 1/4th amount which could have been spent by him towards his personal expenses, the monthly income of the deceased Pruthviraj could have been considered reasonably as Rs. 675/- per ::: Downloaded on - 27/08/2013 21:18:27 ::: 8 First Appeal No.618/2003 Judgment contd/-...
month available to his dependents and annual income at Rs. 8100/-
for a self employed labour.
Considering the 20 years age of victim Pruthviraj at the time of his death in the accident, young Pruthviraj would have lived long on account of reasonable expectancy of his life for to support his family . Hence, maximum multiplier of "18" even in accordance with statutorily pre-determined structured formula in the Second Schedule with reference to Section 163-A of the Motor Vehicles Act.
1988 could have been considered when the claim application was decided. Learned Member of the Tribunal was in clear error of law not to consider it. Thus, roughly calculated annual income of Rs.
8100/- per year multiplied by appropriate multiplier of "18", total loss of dependency for dependents would come to Rs. 1,45,800/-
(capitalized loss of dependency) to which if sum of Rs. 50,000/- is added as compensation (non-pecuniary damage) for loss of love and affection and loss of enjoyment for the family members of the victim and sum of Rs. 5000/- towards reimbursement for funeral ::: Downloaded on - 27/08/2013 21:18:27 ::: 9 First Appeal No.618/2003 Judgment contd/-...
expenses and transport expenses, the amount of compensation could have been awarded at least in the sum of Rs. 2,00,800/- along with interest at the rate of Rs. 9% per annum on the unpaid awarded amount from the date of application till realization thereof. The compensation amount would include the amount awarded under Section 140 of the Motor Vehicles Act as no fault liability for which compensation at interim stage was granted.
6. I have considered the submissions in the light of rulings cited before me in Sarla Verma & Ors. V/s Delhi Transport Corporation & Anr. Reported in AIR 2009 Supreme Court 3104 as also ruling relied upon in Santosh Devi V/s National Insurance Company Limited and Others, reported in (2012) 6 Supreme Court Cases 421. The ruling in Rajesh and others V/s Rajbir Singh and others, by three Judges' Bench of the Apex Court, reported in 2013 ACJ 1403 would support the aforesaid contention for the submission advanced by Mrs. Prabhu, learned Advocate for the appellants.
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7. There are no fetters on the power of the Tribunal to award compensation even in excess of the amount which is claimed in the application if warranted by the proved facts and circumstances of the case . The object is to restore the dependents-
claimants to the pre-accidental position, as far as possible by compensating the family in monetary terms for loss of their victim family member. It is duty of the Tribunal or the Court to award just, equitable, fair and reasonable compensation irrespective of the amount claimed in such cases bearing in mind the social welfare objective of the Motor Vehicles Act to adequately compensate the victims of the motor vehicle accidents or their family members who are rendered helpless, aggrieved and disadvantaged by untimely demise of earning member of their family i.e. the victim.
In such cases dependents are often left behind impoverished or impecunious after having lost their only bread earner in the family. They need to satisfy basic wants of their life. It is indisputable that increasing inflation or rising prices make it ::: Downloaded on - 27/08/2013 21:18:27 ::: 11 First Appeal No.618/2003 Judgment contd/-...
increasingly difficult for them to survive and obtain basic necessities in life subsistence for their livelihood and, therefore, increasing trends in personal incomes ought to be borne-in-mind by the Tribunals and Courts so as to add just and reasonable amounts for to adequately compensate dependents for loss of future prospects as well. It is also essential to award non-pecuniary damages such as for loss of love and affection for family members, loss of consortium for widow if she is dependent, loss of guidance, estate etc. which are special damages in fact uncompensatable in monetary terms, of course the caution is that the award ought not be a jackpot for the claimants to quickly enrich them.
8. It is not object of law to unduly enrich the dependents of the victim by making them wealthier at the cost of public money held by the insurance companies. The intent of awarding non-
pecuniary damages is to provide just, fair, reasonably adequate compensation so as to provide a corpus to take care of the subsistence of the dependents in future as well, hence such sums are ::: Downloaded on - 27/08/2013 21:18:27 ::: 12 First Appeal No.618/2003 Judgment contd/-...
also required to be added to the compensation amount properly and relevantly calculated with reference to facts of each case on the basis of monthly /yearly income proved by the claimants before the Tribunal so as to arrive at just and reasonable compensation irrespective of any amount claimed by the claimants.
9. In the case of Rajesh and others (cited supra), Hon'ble the Supreme Court has held that in a given case when the deceased was self-employed or working on fixed wages, and if the deceased was below 40 years, there shall be addition of 50 percent of income of the deceased towards future prospects. This addition shall be 30% in case the deceased was aged between 40 to 50 years. In paragraph 12 of the judgment Hon'ble Supreme Court has held, it would be just and equitable to provide an addition of 15 percent in the case wherein the victim is between the age group of 50 and 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
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Thus in the case of Rajesh and others, three judges bench of the Hon'ble Supreme Court has held that, the benefit of increase of income for future prospects is available not only to the victims where the deceased was in secured employment, but also to the victims where the deceased was self-employed or employed on fixed wages. The Hon'ble Supreme Court has further extended this benefit even to the cases where deceased persons in the age group of 50 to 60 years. The addition of sums by way of future prospects without there being discrimination between dependents of deceased persons who were in secured employment and dependents of deceased persons who were self -employed or working on fixed wages would render the compensation award just, equitable, fair and reasonable.
10. Considering the submissions at the bar and the rulings cited and cognizant of the facts and circumstances of the present case, I think the calculations as suggested by learned Advocate for the appellant need to be partly accepted as just and reasonable ::: Downloaded on - 27/08/2013 21:18:27 ::: 14 First Appeal No.618/2003 Judgment contd/-...
suggestion for to provide adequate compensation on account of death of young Pruthviraj in the motor vehicle accident payable to his dependents in the present case. Even after considering imponderables, such as -- early demise or death of parents, marriages of all his sisters in near future etc., the calculation of compensation as herein below would be just, equitable, reasonable and proper :-
11. Bearing in mind the addition of amount to be made by way of future prospects the reasonable and just compensation must be computed in the case in hand. Daily income of the deceased bachelor after deduction of 1/4th amount (considering six members in his family at the time of his death) from his average daily earning of Rs 30/- inclusive of future prospects of increasing incomes is calculated at (Rs 30-Rs 07.50) Rs 22.50 per day loss of dependency available for family members of the victim. Annual income for dependents is calculated in the sum of (22.50 x 30 x 12) Rs. 8100/-
per annum multiplied by "18" as proper multiplier considering young ::: Downloaded on - 27/08/2013 21:18:27 ::: 15 First Appeal No.618/2003 Judgment contd/-...
age of the victim, amount comes to Rs.1,45,800/-. (Capitalized loss of dependency for claimants-dependents).
In addition, sum of Rs. 50,000/- ought to be reasonably granted by way of compensation towards loss of love and affection for the family members of the victim and sum of Rs. 5000/- spent towards funeral expenses and transport. We can thus arrive at just ,fair and reasonable compensation in the sum of Rs. 2,00,800/-
inclusive of no fault liability, with reasonable interest @ 9% p. a. on the unpaid amount from the date of the claim application till the amount is deposited by the Insurance Companies/owners of the offending vehicles. The balance of remaining amount unpaid would carry reasonable interest at the rate of Rs. 9 % per annum till full realization thereof.
12. Before parting with the order it is desirable that the portion of the capitalized compensation ought to be invested in such manner in the valuable security such as fixed deposit in any nationalized Bank so as to fetch regular recurrent income for the ::: Downloaded on - 27/08/2013 21:18:27 ::: 16 First Appeal No.618/2003 Judgment contd/-...
subsistence of the aged and poor, needy claimants in the case. Hence, following order is passed.
ORDER
1) Appeal is partly allowed.
2) Award is modified while allowing and including enhancement
of the compensation as follows :-
(a) Parents and dependent unmarried sisters of the victim are entitled to the sum of Rs. 2,00,800/- inclusive of no fault liability along with interest at the rate of Rs. 9% per annum from the date of application till deposit thereof in the Tribunal / Court and balance amount due shall carry the interest payable @ 9% p.a. till realization of the full compensation.
(b) 25% of the total compensation amount payable shall be borne by respondents no.1 & 2 jointly and severally while 75% of the amount shall be borne by respondents no. 4 to 6 jointly and severally including the amount of interest payable on the ::: Downloaded on - 27/08/2013 21:18:27 ::: 17 First Appeal No.618/2003 Judgment contd/-...
amount from the date of application till full realization thereof.
3) Record and Proceedings be sent back to Motor Accident Claims Tribunal, Nagpur to enable it for determined disbursal of the compensation as ordered herein with latitude to issue directions for investment as to fixed deposit etc of the portion of the compensation amount as it may deem fit, to ensure timely and recurrent future assistance, to provide continued periodical subsistence for the poor, needy claimants/ dependents enabling them to withdraw the interest accrued periodically.
4) The amounts deposited in this Court with interest accrued shall be sent back to the Tribunal for to enable it to do the needful for proper and effective execution of the Award.
5) The appeal is allowed with proportionate costs accordingly.
JUDGE Yadav ::: Downloaded on - 27/08/2013 21:18:27 :::