Bombay High Court
Appellants : 1) Shaligram Ramaji ... vs Respondents : 1) Ravindra Manikrao ... on 3 December, 2009
Author: A.P. Bhangale
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 231 of 2009
Appellants : 1) Shaligram Ramaji Dhekale, aged about
57 years, occ: labourer,
2) Smt Babybai Shaligram Dhekale, aged
about 44 years, occ: Labourer,
Both residents of 651, New Quarters,
Building No. 54/3, SRP Camp, Amravati
versus
Respondents : 1) Ravindra Manikrao Khadse, aged
Major, occ: business, resident of Ganesh-
peth, Nagpur
2) Damodhar Gajananrao Ingole, aged about 28 years occ: service, resident of Kelzar, Dist. Wardha
3) Oriental Insurance Company Limited, Mount Road Extension, Sadar, Nagpur, through its Divisional Manager.
::: Downloaded on - 09/06/2013 15:22:29 ::: 2Mr R.R. Srivastava, Advocate for appellant Respondents no. 1 and 2 served.
Mr M.R. Johrapurkar, Advocate for respondent no.3.
Coram : A.P. Bhangale, J Dated : 3rd December 2009 Judgment.
1. The appeal questions correctness and legality of judgment and award dated 26.3.2008 passed by Member, Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 998 of 2004 whereby the petition was allowed partly in the sum of Rs.
1,78,320/- along with interest at the rate of 7.5% per annum from the date of filing of petition i.e. 13.8.2004 till realization.
Respondents no. 1 and 3, owner and insurer respectively of the offending vehicle viz. Truck No. MH31/M-5279 were held liable jointly and severally to pay compensation to the claimants herein (appellants no. 1 and 2).
2. Facts briefly stated are -
The appellants are unfortunate parents who lost their ::: Downloaded on - 09/06/2013 15:22:29 ::: 3 only son Nitin, aged about 25 years old youth in a road accident occurred on 27.5.2004 while offending motor truck described above driven rashly and negligently dashed him and caused untimely accidental death of Nitin, a pedestrian on the road.
3. Learned Advocate for the appellants questioned the award on the ground that while fixing quantum of compensation learned tribunal applied multiplier of 13 instead of 17 as per guidelines from second schedule of the Motor Vehicles Act, 1988 and secondly, learned Tribunal was not justified to reduce or slash the claim by 20% on the ground of alleged contributory negligence, particularly in the absence of any material to infer that deceased Nitin was negligent in crossing the road. Eye witness examined was not cross-examined about alleged contributory negligence. Learned Advocate for appellants made reference to ruling in Syed Basheer and ors v. Mohd Jameel and anr reported in 2009 (4) Mh.L.J. 228 to submit that there is no uniform rule or formula for measuring the value of human life. Structured formula under Section 163A can be taken as a guiding factor while determining the just compensation by applying multiplier method.
::: Downloaded on - 09/06/2013 15:22:29 ::: 4Reference is then made to ruling in Mangala Sanjay Salunke and ors v. MSRTC and ors reported in 2005 (4) Mh.L.J. 31 to argue that in a fatal accident claim in respect of deceased aged about 25 years old, a multiplier of 17 was applied to award compensation to widow and children of deceased Sanjay in the cited case. Lastly, reference is made to New India Assurance v. Charlie and anr reported in AIR 2005 SC 2157 to submit that an appropriate highest multiplier ought to be used for computing the amount of compensation. According to learned Advocate for appellant, 17 could be an appropriate multiplier in the facts and circumstances of the present case without slashing/reducing the compensation amount arrived at by multiplier method.
4. On the other hand, none appeared for respondents no.
1 and 2. Learned counsel for respondent no. 3 Insurance Company submitted that in support of the impugned judgment and award that the deceased was crossing the road near Kailash Petrol Pump at night-time at about 10.30 pm according to eye witness Niranjan and therefore, the Tribunal has rightly slashed 20% of the compensation determined on account of contributory ::: Downloaded on - 09/06/2013 15:22:29 ::: 5 negligence of the deceased Nitin. Furthermore, according to learned Advocate for respondent Insurance Company submitted that although father of the victim did not produce any salary certificate to substantiate claim and employer was also not examined, the Tribunal has awarded just and reasonable compensation under the circumstances on the basis of monthly income of the deceased determined at Rs. 2100/- per month and also applied settled principles and correct multiplier of 13 to award just and reasonable sum as compensation. Learned Advocate for Insurance Company invited my attention to ruling in New India Assurance v. Smt Shanti Pathak and ors reported in AIR 2007 SC 2649 to argue ages of parents of the deceased victim was held relevant to fix multiplier. In a case of victim of motor accident aged 25 years; the Honourable Apex Court considered long pendency of the cases and ages of parents of the victim to fix less multiplier of 5 as appropriate. The Apex Court observed in paragraph 7 thus -
"...... But considering the fact that the matter is pending since long, it would be appropriate to take multiplier of ::: Downloaded on - 09/06/2013 15:22:29 ::: 6 5 considering the fact that the mother of the deceased is about 65 years at the time of the accident and age of the father is more than 65 years. "
Reference is then made to Bijoy Kumar Dugar v. Bidyadhar Dutta and ors reported in AIR 2006 SC 1255 to submit that annual dependency is determined in terms of annul loss due to abrupt termination of life and 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 to the claimants and so many other factors. In case of head on collision 50% of the amount fixed was slashed on account of contributory negligence. Learned Advocate for insurer placed further reliance upon observations from ruling in Ramesh Singh and anr v. Satbir Singh and anr reported in 2008 ACJ 814 (SC) to submit that second schedule is to be used not only for to refer to age of victim but also other relevant factors. Parents of the deceased who are claimants may not survive long enough to survive to match with a high multiplier provided by the second schedule. Hence, the Court has to offset such high multiplier and balance the same with ::: Downloaded on - 09/06/2013 15:22:29 ::: 7 short life expectancy of the claimants. The Apex Court upheld multiplier of 8 since father of victim was running 56th year of his life on the principle that the choice of multiplier is determined on the basis of the age of the deceased or claimants whichever is higher. Learned Advocate for Insurer placing reliance upon ruling in Oriental Insurance v. Syed Ibrahim and ors reported in 2007 ACJ 2816. It is held therein as under :
"There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendour of the stars, beyond the reach of monetary tape-
measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain.
Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases where parents are the claimants, ::: Downloaded on - 09/06/2013 15:22:29 ::: 8 relevant factor would be age of parents."
5. I have considered the submissions at the bar and rulings cited as also evidence led before the Tribunal. Assuming that deceased was crossing the road near Kailas Petrol Pump, offending motor truck driver was expected to be careful and cautious while driving on road near petrol pump or beer bar, restaurant etc. as there is every possibility of persons crossing the road near such public places. Driver of the offending motor vehicle did not enter in the witness box nor was summoned to throw light upon cause of the accident which was especially within his knowledge. Merely because the deceased was crossing the road even small amount of liability for contributory negligence cannot be fastened upon the pedestrian without cogent evidence on record. It cannot be said on the basis of evidence led or material placed before the Tribunal that deceased Nitin had voluntarily taken risk to his own life by crossing the road in front of the moving truck. It is duty of the driver of truck driven on highway to drive the motor vehicle in such manner so as to safeguard the life of pedestrians who may have to cross the road or walk by the side of the road near public places like petrol ::: Downloaded on - 09/06/2013 15:22:29 ::: 9 pump, restaurants etc. . Driver of the motor vehicle approaching a pedestrian crossing is always expected to reasonably adjust the speed, blow the horn to avoid any untoward incident when any person using the road may be likely to lose his life or suffer permanent disability. Prudent driver would always drive with caution and at reasonable speed near places like petrol pump, beer bar and restaurants. Deceased Nitin was serving as a waiter in beer bar-cum-restaurant and on account of his employment may have occasions to cross the road. Hence, in my opinion, by a mere fact that he was crossing the road at the time of accident, liability for contributory negligence cannot be fastened upon deceased victim. For these reasons, finding as to fastening liability for apportionment of contributory negligence upon deceased victim is not sustainable.
6. Regarding question as to what would be the correct multiplier to be applied in the facts and circumstances of the present case, it does appear that admittedly deceased Nitin was serving as waiter in a restaurant. Therefore, compensation has to be determined on the basis of monthly earnings of Nitin. The ::: Downloaded on - 09/06/2013 15:22:29 ::: 10 claimants have relied upon savings bank account pass book of Nitin. Various entries in the pass book show the deposits made by Nitin from time to time. On the basis of those entries it was rightly inferred by the Tribunal that Nitin was earning-member in his family and was also saving from his earning. He had obtained gas connection in the year 2000. Under these circumstances, the Trial Court considering oral evidence of claimants that Nitin was earning monthly income of Rs. 3000/- and considering other material, came to a conclusion that monthly income of deceased Nitin can be considered at Rs. 2100/- for the purpose of computing compensation. Considering the wages of waiter, general trend of customers giving tips to waiters and uncertainty of such jobs, I think no fault can be found with the finding of the Tribunal to fix an average income of Rs. 2100/- per month in order to determine compensation. No doubt, Nitin was aged about 25 years at the time of accident, but considering the age of 40 years of his mother and 53 years as that of his father at the time of accident and consequent dependency, the Tribunal fixed the multiplier of "13". It is well settled that in case of death of unmarried son, age of parents is an important and relevant factor.
::: Downloaded on - 09/06/2013 15:22:29 ::: 11Considering the ages of parents, multiplier of "13" adopted by the Tribunal is, in my opinion , proper and needs no interference.
7. In the result, appeal is partly allowed. Finding rendered by the Tribunal as regards the contribution of deceased Nitin at 20 per cent is set aside. Consequently, appellants are held to be entitled to entire compensation as determined by the Tribunal at Rs. 2,22,900/- . Rest of the award is maintained.
Appeal is partly allowed with proportionate costs and is disposed of as such.
A.P. BHANGALE, J hsj ::: Downloaded on - 09/06/2013 15:22:29 :::