Bombay High Court
Rajesh Shantilal Sejpal vs Maharashtra State Road Transport ... on 4 April, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:16093-DB
Tauseef 902-FA.1679.2005(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1679 OF 2005
IN
M.A.C.T. APPLICATION NO.845 OF 1998
Rajesh Shantilal Sejpal (deleted),
since deceased through LR's:
1A. Maya Rajesh Sejpal,
Age 47 years, Occupation Housewife,
1B. Ketan Rajesh Sejpal,
Age 23 years, Occupation Student,
1C. Karan Rajesh Sejpal,
Age 16 years Occupation Student,
Being a minor through his mother and
Natural guardian Appellant No.1A
Residing at Flat No.42, Ground Floor,
Parel Co-Op. Hsg. Bldg. No.3,
Behind Oshiwara Weigh Bridge,
Opp. Ram Mandir, Off. S. V. Road,
Goregaon, Mumbai - 400 104. ..Appellants
Versus
Maharashtra State Road Transport
Corporation, Vahatuk Bhavan,
Bellasis Road,
Mumbai - 400 009. ..Respondent
(Orig. Opp. Party No.1)
AND
Raghunandan Das Mathur,
6th Sunset Heights 59 Pali Hill,
Bandra (West),
Mumbai - 400 009. ..Respondent
(Orig. Opp. Party No.2)
AND
The New India Assurance Co. Ltd.
Having their office at M. G. Road,
Fort,
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Mumbai - 400 023. ..Respondent
(Orig. Insurers)
__________
Mr. Lancelot Lewis for the Appellants.
Mr. Devendranath S. Joshi a/w. Mr. Pradyumna Thakurdesai for
Respondent No.3.
None for MSRTC.
__________
CORAM : A. S. CHANDURKAR &
JITENDRA JAIN, JJ.
Date on which the Arguments were heard : 21st March 2024
Date on which the Judgment is pronounced : 4th April 2024
Judgment (Per Jitendra Jain, J.) :-
1. This first appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 (for short "M. V. Act") by one Mr. Rajesh S. Shejpal,
who met with an accident and subsequently on his death, his legal heirs
were brought on record. The present appeal challenges an order passed
by the Motor Accident Claim Tribunal, Mumbai (for short "Tribunal")
dated 28th January 2005 in Application No.845 of 1998, whereby the
Tribunal dismissed the Application on the ground that drivers of both
the vehicles were not negligent and by applying process of elimination
the accident occurred by act of God.
2. Brief facts are as under:-
(i) On 14th November 1997, at about 5:15 p.m., a Maruti Car bearing
Registration No.MH-02-N-2364 was being driven by the original
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claimant - Rajesh Shantilal Sejpal. In the said car, there were three
other occupants when the said car met with an accident in view of
a dash with a bus owned by the Maharashtra State Road Transport
Corporation bearing No.MH-12-8852. As a result of this accident,
all the co-passengers of the said car including the original claimant
who was driving the car suffered injuries. Separate Claim Petitions
came to be filed by the four injured persons. Kamlesh
Navinchandra Patel filed Application No.571 of 1998 which came
to be decided on 14th September 2010 and he was awarded
compensation of an amount of Rs.2,93,800/- after holding it to be
a case of composite negligence. The Insurance Company challenged
the aforesaid Award by filing First Appeal No.795 of 2013, which
came to be dismissed on 6th August 2013 with a finding that the
negligence of the drivers of both the vehicles can be attributed to
50% each. Another co-passenger - Abhay Dattatray Deo filed
Application No.572 of 1998 and on 15th September 2010, the
Claims Tribunal allowed his claim granting compensation of
Rs.1,58,600/- treating it to be a case of composite negligence. This
Award has attained finality. The third co-passenger - Hiten Nandlal
Damani, who was injured filed Application No.574 of 1998. The
Claims Tribunal on 15th September 2010 awarded compensation of
Rs.1,70,300/- treating it to be a case of composite negligence. This
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Award has also attained finality.
(ii) Insofar as the Original Appellant in the present case is concerned,
he has been denied compensation by the Claims Tribunal by
recording a finding that neither the car driver nor the bus driver
were negligent and that the accident seem to have occurred due to
"act of God". It is in these facts that we are considering this Appeal
that was filed by the Original Appellant and is now being
prosecuted by his legal heirs.
(iii) The Original Appellant was initially taken to Sion Hospital and,
thereafter, shifted to P.D. Hinduja Hospital for a period of almost 5
½ months. In 2000, again he was admitted for the injuries arising
on account of the aforesaid accident. The hospital expenses have
been reimbursed to the Original Appellant by his employer.
However, even post discharge from Hinduja Hospital from 1998 till
the date he passed away, he was bed ridden and had to be attended
by a nurse and was on a special diet.
(iv) The Original Appellant made an application under Section 166 of
the M.V. Act seeking compensation of Rs.1 Crore which was
subsequently raised to Rs.10 Crores. The Tribunal recorded the
evidence of the Original Appellant, driver of the Maruti Car who
also happened to be the friend of Original Appellant, driver of S.T.
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Bus, etc. and computed following compensation but did not grant
the same since the Tribunal gave a finding that neither the driver of
the car nor the driver of the S.T. Bus was negligent but the accident
occurred on account of an act of God.
Sr. Nature of claim Amount
(i) Towards dependency Rs.29,79,232/-
(ii) Future medical expenses and home Rs.2,00,000/-
attendant charges.
(iii) Pain and suffering, loss of amenities and Rs.1,00,000/-
expectation of life.
Total Rs.32,79,232/-
3. Being aggrieved by the aforesaid order of the Tribunal, the
Original Appellant challenged the order by filing an appeal to this Court
under Section 173 of the M.V. Act. The Appellant in the present appeal
has pressed for compensation of Rs.10 Crores.
4. We have heard the learned counsel for the Appellant and
Respondent No.3-Insurance Company and with their assistance have
perused the petition and the records of the Tribunal. Although
Respondent No.1 was earlier represented by the Advocate, but has
subsequently chosen not to attend. The last appearance of Respondent
No.1 was on 8th December 2023. Thereafter, the appeal was listed on
19th January 2024, 29th January 2024, 20th February 2024, but there
was no appearance of Respondent No.1. On 28 th February 2024,
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Respondent No.1 appeared. Thereafter on 14 th March 2024, 18th March
2024, 20th March 2024 and 21st March 2024 again there was no
appearance of Respondent No.1. We therefore, propose to proceed with
the appeal in the absence of Respondent No.1 who has chosen not to
attend. The following points arise for our determination.
Sr. Points for determination Decision
(i) Whether the Tribunal was No.
justified in coming to a
conclusion that the accident
occurred due to an act of God
and the Tribunal was justified in
not awarding any compensation?
(ii) What is the extent of negligence 50:50
attributable to the drivers of each
vehicle in case of composite
negligence?
(iii) If answer to (i) is in negative then Rs.40,35,630/-
what should be just compensation
to be awarded to the Appellant?
(iv) What should be the rate of 6% p.a.
interest to be awarded on above
compensation?
We now propose to deal with each of the aforesaid points hereinafter.
5. Point for determination (i):- Whether the Tribunal was
justified in coming to a conclusion that the accident occurred due to an
act of God and the Tribunal was justified in not awarding any
compensation?
6. The Tribunal in paragraph 47 came to a conclusion that
neither the car driver or the bus driver was negligent and, therefore, by
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process of elimination, the Tribunal comes to a conclusion that the
accident occurred due to an act of God. In our view, the finding and
reasoning are erroneous. Admittedly, there was head on collision
between S.T. Bus and Maruti Car, both being driven by respective
drivers. Admittedly, when two cars driven by drivers collides against
each other, it cannot said that neither or either of them was negligent.
The negligence has to be on the part of one or both the drivers.
Therefore, the reasoning adopted by the Tribunal cannot be sustained.
An act of God would mean, something which is not in the control of the
human being, whereas in the present case, there has been admittedly
head on collision between two vehicles driven by the drivers when there
is no averment on weather being foggy or other wise and, therefore, it
cannot be a case of an act of God and the principle of elimination
applied by the Tribunal is erroneous.
7. It is also important to note that in the Maruti Car in which the
Original Appellant was travelling, there were other passengers including
the person driving the Maruti Car. These passengers had also filed
applications before the Tribunal under Section 166 of the M. V. Act, the
Tribunal vide its order dated 14 th September 2010 has come to a
conclusion that the accident was a case of composite negligence and
both the driver of the bus and the car were responsible for contributory
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negligence. These orders of the Tribunal in the case of other co-
passengers was rendered post the impugned order which is before us.
The Respondent No.3-Insurance Company has accepted the orders
passed by the Tribunal in the case of co-passengers, thereby accepting
the said finding and rightly so, the accident occurred due to composite
negligence and, therefore, the finding of the Tribunal impugned before
us that the accident occurred on account of act of God cannot be upheld.
We appreciate the stand of Respondent No.3-Insurance Company that in
the facts of the present case, the accident cannot be attributed to act of
God. Therefore, the finding rendered by the Tribunal that the accident
occurred on account of an act of God is erroneous.
8. Point for determination (ii):- What is the extent of negligence
attributable to the drivers of each vehicle in case of composite
negligence?
9. Now the question arises as to the proportion attributable
towards the negligence of each of the driver which resulted into the
accident since this will be necessary for determination of compensation
to be payable by Respondent No.3-Insurance Company with whom
Maruti Car was insured. To adjudicate this issue, it is relevant to
examine the evidence recorded before the Tribunal.
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10. In the evidence of the Original Appellant, it is stated that the
accident did not take place on account of rash and negligent driving by
the driver of the Maruti Car. He further deposed that the driver of the
car was not all at fault but he could have been at fault, meaning thereby
that to some extent, the driver of the car was also at a fault. In the
evidence of the driver of the Maruti Car, he has stated that it is not
correct to say that there is no negligence on the part of the S.T. Bus. The
driver also denied that he was driving with excessive speed and further
denied that the accident took place because of his negligent driving. The
evidence of S.T. Bus driver was also recorded, wherein in his
examination-in-chief, he stated that the accident took place because of
the negligence on the part of the driver of the Maruti Car but in his
cross-examination, he admitted that the accident took place not because
of his negligence only, thereby implying that he too was at a fault. The
evidence one of the co-passengers of the Maruti Car Mr. Abhay Deo
denied any act of negligence on the part of the driver of the Maruti Car
for the cause of the accident. In the criminal proceedings against the
driver of the S.T. Bus, the said driver was acquitted because the
prosecution could not prove their case by leading evidence. The two
sides of the road was divided by a white flat line and there were no
barricades dividing the road. In our view and after examining the
evidence on record, it cannot be conclusively said as to who exactly is
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solely responsible for the accident. Both the drivers have in their cross-
examination admitted that the negligence cannot be attributable solely
to one of them. In such a case, it is difficult to precisely come to a
conclusion as to what extent each one of them is liable and this Court is
certainly not an expert on determining such attribution. Therefore, after
examining the evidence, it would be just and fair that both the drivers
are held to be equally liable for the accident. It is also important to note
that the collision is between the small Maruti Car and the big S.T. Bus
and when such two types of uneven vehicles collide, the weaker and
smaller one certainly would face more damage than the higher and the
bigger one. However, it would be fair to attribute the negligence to both
the drivers in equally proportion.
11. It is also important to note that in the case of co-passengers of
Maruti Car separate applications were filed before the Tribunal. The
Tribunal after holding it to be a case of composite negligence awarded
the compensation which was challenged by filing First Appeal and in the
said order dismissing the appeal on 6 th August 2013 a finding was
rendered that negligence of the drivers of both the vehicles can be
attributed to 50%. Similarly, in the case of other two co-passengers the
finding of composite negligence has attained finality. Therefore, in the
present appeal before us, composite negligence can be attributed equally
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to both the drivers.
12. Point for determination (iii):- If answer to (i) is in negative
then what should be just compensation to be awarded to the Appellant?
13. Just and fair compensation:- The Original Appellant was only
36 years old when the accident occurred (date of accident 14 th
November 1997 minus date of birth i.e. 22nd July 1962). The Original
Appellant was a management graduate and was working as the Deputy
Finance Manager with Reliance Industries Ltd. As per the last TDS
Certificate for the financial year 1997-98 issued by Reliance Industries
Limited, his gross salary was Rs.2,15,602/- and after reducing
exemption under Section 10 of the Income Tax Act, 1961 and standard
deduction under Section 16 of the Income Tax Act, 1961, his taxable
salary income was Rs.1,86,202/- for the financial year 1997-98 and on
the said amount after reducing rebate under Section 88, Tax Deducted
at Source was Rs.24,014/-. In our view, therefore, for arriving at loss of
income for the purpose of just and fair compensation under the Motor
Vehicles Act, 1988, gross salary is to be considered since the notional
deduction under Section 16 and exemption under Section 10 and rebate
under Section 88 is only for the purpose of arriving at taxable income
and, therefore, the reduction on account of Sections 10, 16 and 88 of
the Income Tax Act is not to be considered for the purpose of Motor
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Vehicles Act, 1988. Therefore, the gross salary for the purpose of Motor
Vehicles Act, 1988 is considered at Rs.2,15,162/-, being the last drawn
salary as per the TDS Certificate issued by Reliance Industries Limited,
employer of the Appellant.
14. To the aforesaid salary, an upward adjustment is required for
future prospects as per the decision in the case of Sarla Verma Vs. Delhi
Transport Corporation & Anr.1. The Appellant being a management
graduate and having worked with India's one of the top most corporate
certainly had bright prospects. As per paragraph 24 of Sarla Verma's
case, if the deceased is below 40 years then an addition of 50% of actual
salary should be considered towards future prospects. The Appellant
before us was only 36 years of age when accident occured and,
therefore, as per paragraph 24 of the Sarla Verma's case, 50% of salary is
considered towards future prospects and same works out to
Rs.1,07,801/- (2,15,601 ÷ 2).
15. From the aforesaid amount of gross salary + future prospects,
the Appellant would be required to pay tax, if he had survived and
earned the said income. Income Tax is levied on individuals on slab
basis which are divided into three slabs, the higher slab being taxed at
approximately 30%. However, while applying the rate of the highest
1 (2009) 6 SCC 121
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slab, the tax calculated on the portion of the income of earlier slabs are
reduced. Therefore, the effective tax rate is not 30% on the total
income, but it is much less. The individual also gets the benefit of
investments made in various tax saving schemes which also goes on to
reduce the final tax payment. Therefore, what is to be considered for the
purpose of our calculation is effective average rate. It is also important
to note that the trend of the Government is to reduce the tax rates more
particularly for the individuals. In the instant case before us as per the
TDS Certificate issued for the financial year 1997-98, on the gross salary
of Rs.2,16,202/-, the tax payable was only Rs.24,014/-, which works out
to 11% only. Therefore, looking at the trend of reducing the tax rates by
the Government in successive budgets, 10% of the gross salary + future
prospects can be considered towards payment of tax.
16. If the Appellant had survived and not met with an accident
then he would have spent about 1/3rd of the salary received post tax
towards his and family's personal expenses. Therefore, 1/3 rd is
considered towards personal expenses of the Appellant and his family
members.
17. Now we come to the multiplier to be applied to the amount
arrived at after reducing tax and personal expenses. As per the decision
in the case of Sarla Verma (supra), if the age of the deceased is between
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36 to 40 years, multiplier of 15 is to be considered.
18. The Appellant post the accident was bed ridden and had to be
cared continuously by nursing staff and was on a special diet. The
Appellant before the Tribunal in its application for enhancement of the
claim has claimed Rs.5,40,000/- towards nursing charges and
Rs.3,60,000/- towards special diet. The Appellant had to take the
service of physio-therapy on account of injuries arisen and for which the
claim of Rs.1,40,000/- is made in the said application. In our view,
these are the expenses which are incurred on day to day basis and it
would not be appropriate to expect the bills to be retained and produced
of these expenses in the facts of the present case. There is no dispute
that the Appellant had suffered severe injuries which ultimately lead to
his death after suffering for almost 4 to 5 years. Therefore, in our view,
to call for strict evidence of these expenses on the facts of the present
case would not be appropriate. Therefore, on proximate basis although
the total of the said expenses is Rs.12,44,000/-, we propose to grant
sum of Rs.10,00,000/- towards the same.
19. The Tribunal has arrived at pain and suffering, loss of
amenities and expectation of life at Rs.1,00,000/-. In addition to the
said figure, we propose to grant Rs.25,000/- towards the funeral
expenses.
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20. Therefore, the total compensation which the Appellant would
be entitled to is as under:-
Particulars Amount in Rs.
Gross salary (A) 2,15,602
Plus 50% future prospects (B) 1,07,801
Total of A+B (C) 3,23,403
Less: Tax 10% (D) 32,340
Net of tax (E)-(C)-(D) 2,91,063
Less : Personal Expenses 1/3rd (F) 97,021
Balance post personal expenses (G) 1,94,042
(E)-(F)
Multiplier (H) X 15
Loss of dependency (I)=HXG 29,10,630
Nursing, Diet, Physio (J) 10,00,000
Pain and suffering, funeral etc. 1,25,000
(K)
Total (L) = I+J+K 40,35,630
21. Now we propose to deal with the compensation that will be
payable by Respondent No.1-State Road Transport Corporation and
Respondent No.3-Insurance Company. Respondent No.1 is the owner of
the ST Bus which collided with the Maruti Car. We have already
observed above that drivers of both the vehicles were equally
responsible and negligent for the accident. Under Section 168 of the
M.V. Act, the Tribunal can award compensation and specify the amount
which shall be paid by the Insurer or owner or driver of the vehicle
involved in the accident or by all or any of them. In our view, since the
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drivers of both the vehicles are equally responsible, Rs.20,17,815/- will
have be borne by Respondent No.1-Maharashtra State Road Transport
Corporation Limited and balance 50% by Respondent No.3. Our views
on apportionment of compensation between Respondent No.1 and
Respondent No.3 is based on provisions of Section 168 of the M.V. Act
and following decisions:
"(i) Khenyei Vs. New India Assurance Company Ltd. & Ors.2
(ii) U. P. State Road Transport Corporation Vs. Rajani & Ors. 3
(iii) National Insurance Co. Ltd. Vs. Deepali Pal & Ors.4"
22. Point for determination IV:- What should be the rate of interest to
be awarded on above compensation ?
23. The Tribunal in its order although did not grant interest
because of dismissal of the application, has however observed that if
they were to grant interest, same would be 6% per annum from the date
of the application. We propose to accept the same rate of interest to be
paid by Respondent No.3-Insurance Company and Respondent No.1.
Maharashtra State Road Transport Corporation Limited from the date of
the application up to the date of actual payment.
2 (2015) 9 SCC 273
3 2007 (2) TN MAC 313 (DB) (All.)
4 2015 SCC OnLine All 9610
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24. In view of above, appeal is allowed in terms of following
order:-
ORDER
(i) In view of above, the order of the Tribunal refusing to grant compensation is quashed and set aside order.
(ii) The Respondent No.3-Insurance Company to pay compensation to the Appellant of Rs.20,17,815/- along with interest at 6% per annum from 3 rd March 1998 to the date of payment within a period of eight weeks from today.
(iii) Respondent No.1-Maharashtra State Road Transport Corporation Limited is directed to pay compensation to the Appellant of Rs.20,17,815/- along with interest at 6% per annum from 3rd March 1998 to the date of payment within a period of eight weeks from today.
(iv) The parties shall bear their own costs. (JITENDRA JAIN, J.) (A. S. CHANDURKAR, J.) 17 of 17 ::: Uploaded on - 05/04/2024 ::: Downloaded on - 05/04/2024 15:52:45 :::