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2010 DIGILAW 819 (BOM)

Dumaina Fernandes v. Razik B. Pereira

2010-06-17

A.S.OKA, F.M.REIS

body2010
JUDGMENT A.S. Oka. J.-The appellant, who are the claimants in the claim petition filed under Section 166 of the Motor Vehicles Act. 1988 (for a short, hereinafter referred to as "the said Act") have preferred this appeal taking exception to the Judgment and Award dated 12th October, 2004 passed by the learned Member of the Motor Accident Claims Tribunal. South Goa, Margao. 2. One Sebastiao Fernandes died following the injuries sustained in a motor accident which took place on 22nd March, 1999 at about 5.20 p.m. The deceased was proceeding from Tilamol to Sanvordem by his scooter. When he reached Sonfatar, a bus gave a dash to him. The bus came from the rear side of the scooter and as a result of the dash given by the bus the deceased was knocked down. The deceased sustained serious injuries and while he was being taken to the hospital he died. The first respondent was driving the said bus at the time of the accident. The second respondent is the owner of the bus and the third respondent is the insurer of the bus. 3. In the claim petition the appellants claimed that at the time of the death the age of the deceased was 52 years. It is alleged that the deceased was working on board of the ship of M/s. Wallem Shipmanagement Limited. Hong Kong and was drawing a monthly salary of Rs. 45.000/-. It is stated that at the time of the death of the deceased the age of the first appellant the widow of the deceased was 46 years. 4. The second appellant who is the daughter of the deceased was a student at the relevant time. The claim petition was contested by the third respondent by contending that the bus was being driven at a normal speed and in fact the accident occurred due to the negligence on the part of the deceased himself. It was contended that the deceased was not possessing a valid driving licence. The Tribunal found that the accident occurred due to rash and negligent driving on the part of the first respondent. Out of the claim amount of Rs.25.00,000/.-. the Tribunal granted compensation of Rs. 1.95.000/-. The Tribunal came to the conclusion that there was nothing on record to show that on the date of death, the deceased was in regular employment. The Tribunal has taken a sum of Rs. Out of the claim amount of Rs.25.00,000/.-. the Tribunal granted compensation of Rs. 1.95.000/-. The Tribunal came to the conclusion that there was nothing on record to show that on the date of death, the deceased was in regular employment. The Tribunal has taken a sum of Rs. 15.000/- as notional yearly income of the deceased on the basis of the second schedule to the said Act. The Tribunal applied multiplier of 11 and granted a sum of Rs. 10.000/- each on account of loss of consortium funeral expenses and loss of estate to the deceased. That is why the present appeal has been preferred by the claimants seeking further compensation of Rs.23.05.000/-. 4. The learned counsel appearing for the appellants has taken us through the pleadings notes of evidence and the documents on record. Invited our attention to the Salary Certificate dated 10.9.1999. which is at exhibit AW.1 /A. He submitted that the said certificate shows that the deceased was employed as Chief Cook on the board of vessels of M/s. Wallem Shipmanagement Limited, Hong Kong. He pointed out that the certificate records that for the financial year 1998-99 the total remuneration payable was US$ 10.315. He submitted that the deceased used to be on the board of vessels for a period of 6 months. He submitted that the deceased was scheduled to go on the board of a vessel on 1st April. 1999. He pointed out that considering the then prevailing currency rates on the date of the accident the monthly salary of the deceased was Rs. 45.000/-. He invited attention of the Court to the document at Exhibit 19(B). He submitted that though the said document has been exhibited by consent of the parties the Tribunal has clearly ignored the same. He submitted the said document shows that the deceased was in the employment right from 29.7.1969. He submitted that the document is "continuous certificate of discharge" issued by the Shipping Master. He submitted that there was enough evidence on record to show that the deceased was working from the year 1969 on the Board of various vessels as a cook. He submitted that the last drawn salary of the deceased was Rs. 45.000/- per month which should have been taken as the basis for calculating the multiplicand. He submitted that there was enough evidence on record to show that the deceased was working from the year 1969 on the Board of various vessels as a cook. He submitted that the last drawn salary of the deceased was Rs. 45.000/- per month which should have been taken as the basis for calculating the multiplicand. He submitted that the learned Member of the Tribunal has committed a gross error by taking hypothetical income of Rs. 15,000/- per year. He, therefore, submitted that the compensation awarded is grossly inadequate. He pointed out that a sum of Rs. 25.00.000/- was claimed by the appellants before the Tribunal. He submitted that the evidence on record shows that the appellants will be entitled to higher amount. He submitted that monthly income will have to be taken at Rs. 45.000/- and after making deduction of 1/3rd on account of personal expenditure of the deceased multiplier of 11 will have to be applied. Relying upon the decision of the Apex Court in the case of Nagappa v. Gurudayal Singh & Ors. ( AIR 2003 SC 674 ), he urged that just compensation be awarded by making calculations in terms of the decision of the Apex Court in the case of Smt. Sarla Verma & Ors. v. Delhi Transport Corporation & Am:. 2009 (4) ALL MR 429. The learned Counsel has placed on record the conversion rates of US $ into rupees for the period between 1.4.1998 to 31.3.1999. He pointed out that average conversion rate during the said financial year was Rs. 40/- for one US$. 5. The learned counsel appearing for the third respondent supported the impugned Judgment and Award. He submitted that the Salary Certificate at Exhibit AW.1/A has not been duly proved by examining the employer. He submitted that the certificate at the highest, shows that the deceased was to continue in employment till 31.3.1999. As far as the document at Exhibit 19(B) is concerned, he submitted that even the said document has not been proved. He submitted that the said document does not establish that the deceased was continuously in the employment from the year 1969. He submitted that the burden was on the appellants claimants to prove the income of the deceased at the time of the accident and they have failed to establish the income. He therefore, submitted that the compensation awarded by the Tribunal is just and proper. He submitted that the burden was on the appellants claimants to prove the income of the deceased at the time of the accident and they have failed to establish the income. He therefore, submitted that the compensation awarded by the Tribunal is just and proper. He invited attention of the Court to the fact that there is no application in the appeal for grant of enhancement in compensation. He placed reliance on a decision of this Court in the case of Kantabai & Ors. v. Ahmed Khan (deceased) by LRs. & Ors.. 2006 ACJ 2481. He submitted that no interference is called for with the impugned Judgment and Award. 6. We have given careful consideration to the submissions. It is not necessary to deal with the aspect of negligence as there is no cross-appeal or cross-objection preferred by any of the respondents and therefore, the only question which survives for consideration is as regards the quantum of compensation. In the claim petition filed by the appellants it is stated that the deceased was employed with M/s. Wallem Shipmanagement Limited. Hong Kong and his monthly income was Rs. 45,000/-. The same is the case made out in evidence by the first appellant, who is the widow of the deceased. She stated that her deceased husband was working on board of a ship and he had come back just a month before the accident on holidays. She stated that the deceased was working as a Chief Cook, drawing salary of Rs. 45,000/-- per month. She produced in evidence the Certificate dated 10.9.1999 (Exhibit AW.1/A). issued by M/s Wall em Shipmanagement Limited. The Certificate was marked as an exhibit without any objection on the part of the respondents. The first appellant was cross-examined by the learned counsel appearing for the third respondent. In cross-examination, the first appellant stated that after 10 months' of service the deceased used to get leave for a period of one month. She stated that the deceased was to go on board of the ship on 1st April. 1999. A suggestion was given to her that the deceased husband was not drawing salary of Rs. 45,000/-- per month. The correctness of the said suggestion was denied. In the cross-examination, there is no challenge to the statement of the first appellant that her deceased husband was working on the board of a ship as a chief cook. 1999. A suggestion was given to her that the deceased husband was not drawing salary of Rs. 45,000/-- per month. The correctness of the said suggestion was denied. In the cross-examination, there is no challenge to the statement of the first appellant that her deceased husband was working on the board of a ship as a chief cook. There is no challenge to the certificate issued by the employer of the deceased which was marked as exhibit, without any objection from the third respondent. Apart from giving only one suggestion disputing the income, the entire cross-examination appears to be on the issue of negligence. The document at Exhibit 20(B) is a continuous certificate of discharge which is issued by the Shipping Master. Bombay Government Shipping Office. Department of Commerce, Government of India. There is a printed notice, forming part of the said document which is in the form of a booklet. The notice records that the continuous certificate should be produced and handed over by the seaman to the Shipping Master. Superintendent or Consul when signing Articles of Agreement, so that the engagement column may be filled in and the certificate given into safe custody of the Master of the ship. It is provided that should the seaman desert or fail to join the booklet will be deposited with the Shipping Master. Superintendent or Consul at the port where he left the ship. It is provided that if the seaman applies for return of the booklet the same may be returned containing an entry in the discharge and character column provided in the booklet. There is a warning not to correct or alter the entries in the certificate. It stated that if that is done the person concerned will be prosecuted. The first entry in the certificate records the name of the ship. The date of engagement is 16.9.1969 and the date of discharge appears to be 23.9.1970. The next entry is of engagement on 15.2.1971 and ischarge dated 5.4.1972. There are further entries of the year 1974, 1975, 1976, 1977, 1979, 1980, 1981, 1982, 1983, 1984, 1986, and 1987. The last entry is of engagement on 1.2.1998 and discharge on 25.10.1998. Thus, the said document shows that right from the year 1969. the deceased was working on the board of various vessels. There are further entries of the year 1974, 1975, 1976, 1977, 1979, 1980, 1981, 1982, 1983, 1984, 1986, and 1987. The last entry is of engagement on 1.2.1998 and discharge on 25.10.1998. Thus, the said document shows that right from the year 1969. the deceased was working on the board of various vessels. It must be noted here that the said document at Exhibit 19(B) was t produced by the appellants along with an application at Exhibit 19 on 1.11.2003. The said document has been marked as an exhibit on the same day. without any objection by the respondents. Therefore, the said document will have to be read in evidence. As stated earlier the certificate has been issued by the Government India Shipping Office. The entries in the document bear the signatures of the Master and/or the concerned Officers and their respective rubber stamps have been affixed. There are stamps showing grant of visa in favour of the deceased by the Consulars of certain countries. 7. Thus, the net result of the aforesaid discussion is that the appellants have 'established that the deceased was working as a cook on the board of various ships light from the year 1969 and the certificate at Exhibit AW.1/A shows that for the financial year 1998-99 the remuneration payable to the deceased was of US $ 10.315. 8. Now the next question which remains to be considered is what should be the income of the deceased taken for the purposes of arriving at the multiplicand. The learned Member of the Tribunal has proceeded on the footing that there is no proved income of the deceased which he was earning on the date of the accident. Therefore, the learned Member of the Tribunal has taken recourse to the Second Schedule to the said Act. The Second Schedule applies to a claim petition filed under Section 163-A of the said Act. The learned Member of the Tribunal has treated the deceased as a person who 'was not earning any income prior to the accident and proceeded to take his notional income at Rs. 15,000/- per annum. Looking to the documents on record and especially the documents at Exhibit 19(B) and Exhibit AW.1/A. the learned Member of the Tribunal has committed an error while coming to the conclusion that the deceased had no income prior to the accident. 15,000/- per annum. Looking to the documents on record and especially the documents at Exhibit 19(B) and Exhibit AW.1/A. the learned Member of the Tribunal has committed an error while coming to the conclusion that the deceased had no income prior to the accident. The income, as reflected from Exhibit AW.1/A. is US $ 10.315. The income of the deceased will have to be calculated on the basis of the last income reflected from Exhibit AW.1/A. The learned counsel appearing for the appellant has tendered across the Bar a conversion table showing the currency rates prevailing between 1/4/1998 to 31/3/1999. The highest conversion rate of US $ during this period was Rs. 43.68 and the lowest was Rs. 39.25. Thus, broadly, the yearly income of the deceased as reflected from the aforesaid documents can be taken at Rs. 4.00.000/-. 9. The Apex Court, in its decision in the case of Smt. Sarla Verma & Ors. (supra). has considered all its earlier decisions dealing with multiplier method. The Apex Court has crystallized the law which is now required to be followed by the Tribunals. As per the said decision, deductions will have to be made on account of personal expenditure of the deceased. In paragraph 14 of the said decision, the Apex Court held that where the number of dependant family members is 2 to 3, the deduction on the said count should be one third (1/3rd). Therefore, the deduction of Rs. 1.33.000/- will have to be made from the annual income of Rs. 4.00.000/-. Thus the multiplicand will be Rs. 2.66.000/-. There is no dispute that at the time of death age of the deceased was around 52 years. In the case of Smt. Sarla Verma & Ors. (supra) the Apex Court has held that for the age group of 51 to 55 years the multiplier to be applied will be 11. If the multiplier of 11 is applied the compensation amount will be Rs. 29.26.000/-. In addition to the said amount usual amount of Rs. 20.000/- will have to be added on account of loss of consortium, funeral expenses etc. 10. The learned counsel appearing for the appellants pressed into service the decision of the Apex Court in the case of Nagappa (supra) in support of the contention that though the claim made is of 25.00.000/an amount more than the said claim will have to be granted. 10. The learned counsel appearing for the appellants pressed into service the decision of the Apex Court in the case of Nagappa (supra) in support of the contention that though the claim made is of 25.00.000/an amount more than the said claim will have to be granted. In para 10 of the said decision, the Apex Court observed thus: "10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be just'. There is no other limitation or restriction on its power for awarding just compensation." It must be noted here that the submission that the compensation in excess of the claim be granted is not made before the Tribunal. Even in the Memorandum of Appeal no such case has been made out. Only at the time of final hearing the said contention has been canvassed by the learned counsel appearing for the appellants. At no stage the respondents were put to notice that the Court will consider the case for granting compensation amount in excess of the claim made in the claim petition. Therefore, at this stage if the prayer' is considered prejudice will be caused to the respondents. Thus, what can be granted by this Court in this appeal is maximum amount of Rs. 25.00,000/- as per the claim made before the Tribunal. 11. Hence, the appellants will be entitled to enhancement in the sum of Rs. 23,05,000/-. The question which arises is what should be the rate of interest on the enhanced amount. The accident occurred on 22.3.1999 and in the claim petition filed in the year 1999 which was decided in October, 2004, interest at the rate of 9% per annum has been awarded. During last few years, the rates of interest offered by nationalized banks on fixed deposits have been considerably reduced. Therefore, on enhanced amount, interest at the rate of 9 % per annum cannot be granted and on the said amount, interest will have to be granted at the rate of 7.5 % per annum. 12. Hence, we pass the following order: (a) The impugned Judgment and Award is modified. (b) In addition to the compensation awarded under the impugned Judgment and Award, the appellants shall be entitled to additional compensation of Rs. 23,05,000/-. 12. Hence, we pass the following order: (a) The impugned Judgment and Award is modified. (b) In addition to the compensation awarded under the impugned Judgment and Award, the appellants shall be entitled to additional compensation of Rs. 23,05,000/-. The respondents shall be jointly and severally liable to pay the said amount together with interest thereon at the t rate of 7.5 % per annum, from the date of application, till the date on which the compensation amount is deposited with the Tribunal. (c) The respondents are granted time of three months to comply with the modified award. The amount payable as per the modified award shall be deposited with the concerned Tribunal. (d) After the amount is deposited by the respondents the Tribunal will pass an appropriate order regarding disbursement and/or investment of the amount deposited by the respondents. (e) The appellants will be entitled to proportionate costs of this appeal from the respondents. The appeal is allowed in the above terms.