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2013 DIGILAW 452 (MP)

New India Assurance Co. Ltd. v. Preeti

2013-04-03

J.K.MAHESHWARI

body2013
JUDGMENT : J.K. Maheshwari, J. Both these appeals are arising out of the award dated 8.5.2008, passed by Sixteenth Additional Member, Motor Accidents Claims Tribunal (Fast Track), Indore, in Claim Case No. 92 of 2006. Misc. Appeal No. 2034 of 2008 has been filed by the insurance company on the point that the deceased was himself negligent to cause the accident and also assailing the award on the point of quantum while Misc. Appeal No. 2573 of 2008 has been filed by the claimants seeking enhancement. As per the claim averments the claimant No. 1 is the wife, claimant Nos. 2 and 3 are the sons and claimant Nos. 4 and 5 are the mother and father of the deceased Pushpendra Bansal. The deceased was aged about 36 years and was in occupation of Commission Agent by Cotton Brokerage. On 8.4.2006 he along with Vivek Agrawal had gone from Indore to Bhopal for business purpose by an Indigo car bearing No. MP 09-HD 4626. In the intervening night of 8.4.2006-9.4.2006 when they were coming from Bhopal to Indore at about 1.30 a.m. after crossing Ashta by 10 kilometres ahead, a truck bearing No. MP 09-KC 3118 in the ownership of Shivram Bhalekar, driven by Narayan Prasad while overtaking another vehicle dashed the car thereby Pushpendra Bansal received various injuries over the head and other parts of the body. However, after primary treatment at Ashta he was admitted to Bombay Hospital, Indore where he succumbed to the injuries on 16.4.2006 during treatment. It is said that the annual earnings of the deceased was Rs. 16,00,000 and due to his death in road accident the business has now been closed, therefore, compensation to the tune of Rs. 5,00,00,000 has been prayed for by filing the claim petition u/s 166 of the Motor Vehicles Act. 2. The owner and driver remained ex parte and they have not filed any written statement before the Claims Tribunal. The insurance company has filed the written statement, inter alia, contending that it is a case of head-on collision of two vehicles, i.e., truck and Indigo car, however, the owner and driver of the car have not been joined as party to the proceedings though they are necessary party. It is further stated that the accident has taken place due to rash and negligent driving of the deceased himself who was driving the car. It is further stated that the accident has taken place due to rash and negligent driving of the deceased himself who was driving the car. It is also stated that the driver and owner of offending vehicle has not given any intimation to the insurance company and the verification of the document has also not been done. The driver of the vehicle was not possessing a valid driving licence and the truck in question was driven in violation of the terms and conditions of the insurance policy. However, the insurance company is not liable to pay the amount of compensation. 3. Learned Claims Tribunal after considering the statement of Vivek Agrawal, AW 1, who is an eyewitness to the accident and the lodger of the F.I.R., recorded a finding that it was the negligence of the offending vehicle (truck) which caused the accident wherein the deceased Pushpendra Bansal received injuries and succumbed to them. The Tribunal has further recorded a finding that the earnings of the deceased was Rs. 6,00,000 per annum, however, after deducting 1/3rd for personal expenses and applying the multiplier of 16 awarded Rs. 64,00,000 towards loss of dependency. Towards medical expenses Rs. 1,73,606 has been awarded and under conventional heads Rs. 14,500 has been awarded making the total compensation Rs. 65,88,106. 4. Mr. S.V. Dandwate, learned counsel representing the insurance company, has strenuously urged that in a case where the accident has taken place in a head-on collision of two vehicles, i.e., truck and Indigo car driven by the deceased, in such a case looking to the evidence of Vivek Agrawal, AW 1, as well as the driver Narayan Prasad, DW 3, the Tribunal committed error not to record the finding of the contributory negligence of the deceased. However, after recording the finding of contributory negligence the compensation awarded by the Tribunal may be reduced accordingly. In support of such contention reliance has been placed on the judgment of Apex Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others (2006) 3 SCC 242 , wherein in a case of head-on collision it is held that the deceased is also negligent. In support of such contention reliance has been placed on the judgment of Apex Court in the case of Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others (2006) 3 SCC 242 , wherein in a case of head-on collision it is held that the deceased is also negligent. It is further contended by him that the earning so accepted by the Tribunal is on higher side looking to the statement of Suresh Keemti, DW1, Chartered Accountant, who has verified the accounts of the business of the deceased and found that the net profit ratio has been drastically increased in the year 2005-2006, wherein the deceased died and the return has been filed later on. In such circumstances accepting the earnings as stated by him the quantum of compensation derived after calculation may be reasonably reduced. It is also contended by him that when the amount of compensation is on higher side and the dependency should be equal to the monthly interest to the amount which the claimants are receiving, however, the compensation should not be awarded more than such amount. It is also submitted by him that in a case of death the dependency is reduced by the efflux of time, therefore, also applying the said principle the adequate, just and reasonable amount of compensation may be awarded as specified u/s 168 of the Motor Vehicles Act. In view of the foregoing, it is urged that the appeal filed by insurance company may be allowed and the amount of compensation may be reasonably reduced. 5. Per contra, Mr. G.K. Neema and Mr. Sourabh Neema, learned counsel appearing on behalf of the claimants, have urged in support of the finding regarding occurrence of the accident as recorded by the Claims Tribunal and urged that the argument advanced by learned counsel for the insurance company with respect to negligence of the deceased is unsustainable in view of the statement of the eyewitness Vivek Agrawal, AW2. It is also submitted by them that the owner and driver have not filed any written statement and they merely appeared in the witness-box to support insurance company. The driver appearing in the witness-box is unable to prove that the accident has taken place due to negligence of the deceased. During course of hearing my attention has been drawn to the spot map, Exh. The driver appearing in the witness-box is unable to prove that the accident has taken place due to negligence of the deceased. During course of hearing my attention has been drawn to the spot map, Exh. P3, and contended that looking to the said spot map it is clear that the car which was going from Bhopal to Indore is on the extreme left side. In such circumstances when the offending vehicle overtaking another vehicle coming from opposite direction dashed the car coming towards wrong side, in that view of the matter the findings recorded by the Tribunal on the point of negligence do not warrant interference in an appeal filed by the insurance company. On the point of enhancement it is submitted by him that even if the statement of defendant witness Vivek Agrawal, AW2, is relied upon as per para 4 of his examination-in-chief, it is clear that the earnings of the deceased had increased by every year from 2002 to 2006 in all income tax returns. Merely increasing the net profit would not be a criteria to calculate the compensation. The amount of compensation may be calculated on the basis of the income tax returns, Exh. P50, Exh. P51, Exh. P52 and Exh. P53, which is relied upon by the Tribunal. It is further submitted by him that the accident has taken place on 9.4.2006 immediately after the financial year 2005-2006, therefore, the income tax return was produced later on. As per the statement of the accountant of the deceased, Rajendra Mantri, AW3, it is clear that all the documents of the income and expenditure have been supplied to Suresh Keemti, DW2, assigned to verify the accounts of the business of the deceased by the insurance company. After verifying those documents the witness of the insurance company found that there is no manipulation in the accounts and it has been maintained as per the income tax rules. In such circumstances the income cannot be doubted, which is found proved by the witness of the insurance company itself. Thus, considering the said income, the compensation ought to be awarded by applying the appropriate multiplier. It is also submitted that the deceased was an income tax payee and the business has now been closed, therefore, the future prospects may also be awarded to the legal representatives. Thus, considering the said income, the compensation ought to be awarded by applying the appropriate multiplier. It is also submitted that the deceased was an income tax payee and the business has now been closed, therefore, the future prospects may also be awarded to the legal representatives. It is also contended that in the light of the judgment of Hon'ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009) 6 SCC 121 , personal expenses of the deceased ought to be accepted as 1/4th and dependency 3/4th looking to the number of dependants. In view of the foregoing it is urged that the appeal filed by claimants may be allowed and the appeal of the insurance company on the point of quantum may be dismissed. 6. After having heard learned counsel appearing on behalf of the parties at length, first of all the issue of contributory negligence raised by the insurance company requires consideration. As per the averments of the claim petition it is clear that the deceased driving Indigo car (MP 09-HD 4626) coming back from Bhopal to Indore at about 1.30 a.m., when they reached 10 kilometres ahead to Ashta they met with an accident, car collided with the truck bearing No. MP 09-KC 3118 coming from opposite direction, i.e., Indore to Bhopal. In the said context if the statement of Vivek Agrawal, AW2, is seen then it is clear that he has seen the truck coming rashly and negligently from opposite direction overtaking another vehicle. In para 11 of his cross-examination it is admitted by him that both the vehicles have collided head-on. Simultaneously, the statement of the driver of the offending vehicle (truck) is also relevant whereby it is clear that Indigo car coming from opposite direction rashly and negligently collided with the truck. By conjoint reading of both these statements along with spot map, Exh. P3, it is clear that the place of accident is in the left side of the road going towards Indore from Bhopal. The place where Indigo car was lying is on left side of the road. In the statement of this witness it has also come on record that the accident has taken place from the driver side of both the vehicles. The place where Indigo car was lying is on left side of the road. In the statement of this witness it has also come on record that the accident has taken place from the driver side of both the vehicles. Considering the aforesaid, it is clear that the driver of the offending vehicle (truck) came to wrong direction but simultaneously, it cannot be ignored that in the night when it is seen by the eyewitness sitting in a car that the offending vehicle coming rashly and negligently then taking safeguard they should have parked their vehicle at the left side if they were in a slow speed. It is clear from the record that the accident has taken place from in front by colliding of both these vehicles though from the driver side and not directly by head-on. In such circumstances looking to the spot map and the evidence so brought by the claimants as well as by the driver of the offending vehicle it cannot be ignored that deceased was not negligent. Looking to the overall material brought on record the percentage of negligence on the side of the deceased may be lesser. He is also negligent to cause accident with the offending vehicle (truck). In that view of the matter in the opinion of this court finding recorded by the Claims Tribunal recording negligence of the offending vehicle only is set aside. After considering all the material on record and looking to the spot map the contributory negligence of the offending vehicle and the vehicle driven by the deceased is quantified by 80 per cent and 20 per cent. Thus, the issue of contributory negligence is decided accordingly. 7. Now, to decide the issue regarding quantum of the compensation it is seen from the record that the deceased was dealing with the cotton brokerage business. He was an income tax payee and the returns of income tax from 2002-03, Exh. P50, 2003-04, Exh. P51, 2004-05, Exh. P52, 2005-06, Exh. P53, submitted after the death of the deceased by the family members are on record. As per the statement of the defendant witness Suresh Keemti, DW 1, the income of the deceased from brokerage has been increased by every year from 2002 up to 2006. P50, 2003-04, Exh. P51, 2004-05, Exh. P52, 2005-06, Exh. P53, submitted after the death of the deceased by the family members are on record. As per the statement of the defendant witness Suresh Keemti, DW 1, the income of the deceased from brokerage has been increased by every year from 2002 up to 2006. The said witness of the insurance company found discrepancies in expenditure, however, the net profit ratio increased from the income in the return of 2005-2006 had been described by him. In his statement it is nowhere stated that the income of deceased has not been increased. In his cross-examination it is specifically admitted by him that the accountant of the deceased has supplied all the documents of the income and account papers to him and after verification of those account papers he found no manipulation therein. It is also admitted by him that the accounts were maintained as per the income tax rules. In view of the aforesaid statement by the witness of the insurance company it is clear that the income derived from the business of the deceased up to the financial year 2005-06 cannot be doubted but the Tribunal has disbelieved the said return, Exh. P53, because it has been filed after the death of the deceased. In the considered opinion of this court when the date of accident is 9.4.2006 and the deceased died on 16.4.2006 immediately after the financial year, it cannot be presumed that the return may be filed prior to his death. Once the document of the business has been verified by the chartered accountant, who is a witness of the insurance company without having any manipulation or by disbelieving the income in such a case those income tax returns should not be disbelieved. In that view of the matter after considering the analogy adopted by the Tribunal if we take the mean of the three years of the earning of the income after tax and adding the expenditure as incurred in the last year by the deceased then as per the statement of Suresh Keemti in the said context the net profit ratio may be accepted as Rs. 9,42,669 per annum. In the considered opinion of this court the income of the deceased may be safely accepted as Rs. 9,00,000 per annum in round figure looking to income tax returns, Exh. P50 to Exh. P53. 8. 9,42,669 per annum. In the considered opinion of this court the income of the deceased may be safely accepted as Rs. 9,00,000 per annum in round figure looking to income tax returns, Exh. P50 to Exh. P53. 8. In the present case it is clear that the wife and two sons are dependants from the evidence brought on record. It is also clear that both these sons were studying in Daily College and the annual fees is more than Rs. 1,50,000 to one child and the mother and father aged about 64 years were also claimants, however, ignoring the dependency of the father if we accept the wife of the deceased, two children and mother then four dependants may safely be accepted. In the facts of this case and as per the judgment of Hon'ble Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another (2009) 6 SCC 121 , if 1/4th is deducted for personal expenses from the net earnings then dependency comes to Rs. 6,75,000 per annum. The age of the deceased was 36 years, however, as per the said judgment the multiplier of 15 would be applicable thereby the loss of dependency comes to Rs. 1,01,25,000. The Tribunal has further awarded Rs. 1,73,606 as medical expenses if we add the said amount then the sum comes to Rs. 1,02,98,606. In view of the finding of contributory negligence, i.e., 80 per cent and 20 per cent, if 20 per cent is reduced out of the said amount then the net amount will come to Rs. 82,38,885. If Rs. 25,000 is further added under conventional heads, i.e., loss of consortium, loss to estate, loss of love and affection, funeral expenses, etc. then the sum comes to Rs. 82,63,885. 9. At this stage the argument so advanced by the learned counsel appearing on behalf of insurance company requires consideration that the amount of the compensation should not exceed the amount of interest which may be received by legal representatives of the deceased. Simultaneously, the arguments as advanced by the learned counsel for the claimants that future prospects should also be awarded requires consideration. In the facts of the present case it is apparent that deceased was doing the cotton brokerage business having net income in the year 2004-05 more than Rs. 7,58,000. Simultaneously, the arguments as advanced by the learned counsel for the claimants that future prospects should also be awarded requires consideration. In the facts of the present case it is apparent that deceased was doing the cotton brokerage business having net income in the year 2004-05 more than Rs. 7,58,000. By the next year the earnings was on higher side but because the expenditure were shown lesser, therefore, the net earnings has been accepted Rs. 9,00,000 per annum. The compensation, which is being awarded is approximately Rs. 83,00,000. If we see the amount of compensation and the interest, which may be derived as per the bank rate, then the per month amount of interest would not exceed the net income. Simultaneously, looking to the amount of compensation as calculated hereinabove and awarded by this order passed today looking to the family members and status, the compensation seems to be just and reasonable. In such circumstances the arguments as advanced by the learned counsel for the insurance company as well as the claimants are hereby turned down. In the considered opinion of this court Rs. 82,63,885 would be adequate amount of compensation to the claimants in the facts and circumstances of the case. Accordingly, Misc. Appeal Nos. 2034 and 2573 of 2008 both have been allowed in part. Deceased is also held negligent to the extent of 20 per cent recording the finding of contributory negligence but by enhancing the amount of compensation claimants are held entitled to receive the net amount of Rs. 82,63,885. The amount which is enhanced from the amount so awarded by the Claims Tribunal, shall carry interest at the rate of 7.5 per cent per annum from the date of filing of the claim petition till its realization. In the facts, parties to bear their own costs.