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2014 DIGILAW 1124 (BOM)

Simao Cardozo v. National Insurance Company Ltd.

2014-05-06

U.V.BAKRE

body2014
Judgment : 1. Heard Mr. Coutinho, learned Counsel appearing on behalf of the appellants and Ms. Mandrekar, learned Counsel appearing on behalf of respondent no.1. 2. This appeal was admitted by order dated 25/06/2010 and hearing was expedited. 3. This appeal is directed against the judgment and award dated 09/07/2009 passed by the learned Presiding Officer of Motor Accident, Claims Tribunal, Margao ('Tribunal' for short) in Claim Petition No. 36/2007. The appellants were the claimants, whereas respondent no. 1Insurance Company was also respondent no. 1 in the said Claim Petition. Parties shall, hereinafter, be referred to as per their status in the said Claim Petition. 4. The claimants had filed the said petition under Section 166 of the Motor Vehicles Act, 1988 ('M. V. Act', for short) for compensation of Rs. 12,00,000/-on account of death of Savio Nicholas Cardozo, son of claimants no. 1 and 2 and brother of claimant no. 3. Case of the claimants was as follows: On 06/10/2006, at 10.40 hours, the deceased was travelling on a motorcycle TVS Fiero bearing registration no. GA-02/B-9828 and was proceeding towards Margao. When he reached near Sai Service, Verna, a tanker bearing registration no. GA-02/Z-6138 owned by respondent no. 2, driven by respondent no. 3 and insured with respondent no. 1 came from Zuarinagar towards Margao and the same was driven in a rash and negligent manner at an uncontrollable speed and knocked the motorcycle of the deceased from front side and ran over the body of the deceased thereby causing his death instantaneously. The deceased was 28 years old and a seaman by occupation and his monthly income was 628 US Dollars equivalent to Rs. 32,000/-. He was holding a three year Diploma in Mechanical Engineering and Specialization in material handling and had high prospects of promotion. 5. All the three respondents filed common written statement denying the case of the claimants. However, it was stated that the said tanker bearing registration no. GA-02/Z-6138 was insured with respondent no.1 under policy no. 271202/31/06/6300000916 for the period from 27/05/2006 to 26/05/2007 and that the liability of respondent no.1 under the said policy was subject to the terms and conditions of the policy and the provisions of M. V. Act. It was further alleged that the compensation claimed was excessive and without proper basis. The respondents averred that at the material time, respondent no. 271202/31/06/6300000916 for the period from 27/05/2006 to 26/05/2007 and that the liability of respondent no.1 under the said policy was subject to the terms and conditions of the policy and the provisions of M. V. Act. It was further alleged that the compensation claimed was excessive and without proper basis. The respondents averred that at the material time, respondent no. 3 was driving the said loaded tanker from Sancoale to Corti mines at a moderate speed on the proper side of the road and the rider of the motorcycle, on noticing a snake crossing the National Highway 17, from east i.e. from Sai Service side to the west, applied sharp brakes as a result of which the motorcycle skidded and fell on the road. The said tanker was close by. It was further averred that respondent no. 3 immediately applied brakes of the tanker and swerved the same to its right in order to avoid collision, when the rider came in contact with left front wheel of the tanker. It was, thus, claimed that the accident was inevitable and beyond the control of respondent no. 3 and that respondent no. 3 was not responsible for the same. 6. Accordingly, issues were framed by the Tribunal as per the rival contentions of the parties. The claimants examined claimant no. 1 as AW1 and Shri Shailesh Narvekar, Police Sub-Inspector, Verna Police Station as AW2. The respondents examined one Manoj Mahale, the Manager, Human Resources of Sai Service Station, Verna as RW1 and closed their case. 7. Upon consideration of the entire evidence on record, the learned Tribunal held that the claimants had proved that respondent no. 3 was rash and negligent in driving the tanker no. GA-02/Z-6138 and he gave dash to the motorcycle of the deceased bearing no. GA-08/B-9828 and knocked the deceased down and ran over his body as a result of which, he died instantaneously. The learned Tribunal further held that though the motorcycle rider was alarmed by the presence of the snake crossing MH-17 from east i.e. from Sai Service to the West, however, it was not proved that the deceased had applied brakes and had skidded and fallen down. It was held that the deceased was 28 years old and was earning Rs. 4,000/- per month. The respondents could not prove that respondent no. It was held that the deceased was 28 years old and was earning Rs. 4,000/- per month. The respondents could not prove that respondent no. 3 had swerved his tanker to the right to avoid collision with the motorcycle. It was held that the claimants are entitled to compensation of Rs. 1,96,500/-. The respondents have been directed to pay the same along with interest at the rate of 9% p.a. from the date of application till the date of the award and further interest at the same rate in case the amount is not paid within a month from the date of the judgment. The amount of compensation was ordered to be apportioned equally between the claimants no. 1 and 2 and claimant no. 3. The amount already paid to the claimants under Section 140 of the M. V. Act was ordered to be adjusted. 8. Respondents no. 2 and 3(a) to 3(c), who were respectively the owner and the legal representatives of the driver of the offending vehicle, did not file any appeal against the impugned judgment and order and in the present appeal also, though they have been duly served, after admission, they have chosen to remain absent. 9. Mr. Coutinho, learned Counsel appearing on behalf of the claimants submitted that the evidence on record duly proved that the deceased was working on a ship and was on technical side, working on repairs and that his last drawn salary was 628 US Dollars which at the relevant time was about Rs. 32,000/- per month. Learned Counsel next submitted that there was gap of one and half years and during that period, he was working at Sai Service and was getting salary of Rs. 4,500/- per month. Counsel pointed out from the evidence of RW1 that if the deceased was absorbed in the service, he would have earned a gross salary of Rs. 4,500/- and incentives proportionate to the sales made by him. He further pointed out that RW1 had admitted that there was no upper limit for the quantum of incentives. Therefore, according to Mr. Coutinho, the income of the deceased ought to have been taken at least as Rs. 6,000/- per month. Mr. Coutinho, relied upon the judgment of the Hon'ble Supreme Court in the case of “Amrit Bhanu Shali and others Vs. Therefore, according to Mr. Coutinho, the income of the deceased ought to have been taken at least as Rs. 6,000/- per month. Mr. Coutinho, relied upon the judgment of the Hon'ble Supreme Court in the case of “Amrit Bhanu Shali and others Vs. National Insurance Company Ltd and others”, [2012 (5) All MR 890 (S.C.)] and submitted that the selection of multiplier is based on the age of the deceased and not on the age of the dependents. He, therefore, urged that the learned Tribunal erred in selecting the multiplier of 8. He submitted that there was motor driving licence of the deceased on record as well as the Continuous Discharge Certificate (CDC) which proved that the date of the birth of the deceased was 20/01/1978 which means that the deceased was 28 years old at the time of accident. He relied upon the case of “Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and another”, [ (2009) 6 SCC 121 ] and contended that the multiplier ought to have been 17. He submitted that the learned Tribunal wrongly deducted 50% of the annual income towards personal expenses of the deceased. He pointed out from the judgment of “Sarla Varma” (supra) that the said rule of deduction is not an inflexible rule, but depends upon the facts and circumstances of each case and the same is only a guideline. Learned Counsel for the claimants relied upon the judgment of the Hon'ble Supreme Court in the case of “Radhakrishna and another Vs. Gokul and others” [(2010) 8 Supreme 56] and submitted that an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects ought to have been made. Learned Counsel invited my attention the the Judgment in the case of “Amrit Bhanu Shali and others” (supra), wherein the amount of Rs. 1,00,000/- granted towards the affection of the son and Rs. 10,000/- towards funeral expenses, as awarded by the Tribunal, were maintained. Counsel also relied upon the judgment of the Apex Court in the case of “M. Mansoor & Anr. Vs. United India Insurance Co. Ltd. & Anr” [ (2013) 8 Supreme 257 ] wherein it was held that the parents are entitled to get Rs. 50,000/- each i.e. Rs. 1,00,000/- towards the loss of affection of the son and Rs. 10,000/- on account of funeral and ritual expenses. Vs. United India Insurance Co. Ltd. & Anr” [ (2013) 8 Supreme 257 ] wherein it was held that the parents are entitled to get Rs. 50,000/- each i.e. Rs. 1,00,000/- towards the loss of affection of the son and Rs. 10,000/- on account of funeral and ritual expenses. In support of his contentions, learned Counsel also relied upon the judgment of the Apex Court in the case of “Arvind Kumar Misra Vs. New India Assurance Company Limited and another” [ (2010) 10 SCC 254 ]. He, therefore, urged that the impugned judgment and award requires to be modified insofar as the quantum of compensation is concerned and that the compensation is required to be enhanced. 10. On the other hand, Ms. Mandrekar, learned Counsel appearing on behalf of respondent no. 1 submitted that the deceased had stopped working on the ship for many years and was only working on temporary basis with Sai Service and this fact is proved by RW1, the witness examined by the respondents. She submitted that according to RW1, the salary of a trainee would be Rs. 4,000/- to Rs. 4,500/- per month. She, therefore, submitted that the learned Tribunal has rightly decided the matter. She submitted that in the facts and circumstances of the present case, just and reasonable compensation has been awarded to the claimants and no interference is called for with the judgment. 11. I have perused the original records and proceedings. I have considered the submissions advanced by the learned Counsel for both the parties and have also considered the judgments relied upon by the learned Counsel for the claimants. 12. This appeal has been filed for higher compensation and the claimants have prayed, in this appeal, to grant a total compensation of Rs. 5,00,000/-. The respondents have not filed any appeal challenging the findings of the learned Tribunal. Learned Tribunal, on the basis of the evidence of AW1-claimant no. 1 and of AW2- the Investigating Officer has concluded that respondent no. 3 was rash and negligent in driving the said tanker and was the cause for the said accident which resulted into death of the deceased. 13. The only question that arises for determination is whether the compensation awarded by the learned Tribunal requires to be enhanced. 14. In the case of “Radhakrishna and another Vs. 3 was rash and negligent in driving the said tanker and was the cause for the said accident which resulted into death of the deceased. 13. The only question that arises for determination is whether the compensation awarded by the learned Tribunal requires to be enhanced. 14. In the case of “Radhakrishna and another Vs. Gokul and others”, [ (2013)8 Supreme 56 ], the observations of the Apex Court in the case of “Sarla Verma” (supra) have been quoted which are as under: “In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words “actual salary”) should be read as “actual salary less tax”). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.” 15. It is true that the claimants no. 1 and 2, who are parents of the deceased, were respectively of the age 59 years and 55 years as on the date of filing of the Claim Petition. However, the claimant no. 3, who is the sister of the deceased and who was dependent on him, was only 13 years old at that time. It is not known as to on what basis, the learned Tribunal applied multiplier of 8. However, in the case of “Sarla Verma” (supra), on which reliance was placed by the Tribunal, it has been clearly held that it is the age of the deceased which is relevant for the purpose of fixing the multiplier. The judgment in the case of “Sarla Verma” (supra), was followed in the case of “P. S. Somanathan and Others Vs. However, in the case of “Sarla Verma” (supra), on which reliance was placed by the Tribunal, it has been clearly held that it is the age of the deceased which is relevant for the purpose of fixing the multiplier. The judgment in the case of “Sarla Verma” (supra), was followed in the case of “P. S. Somanathan and Others Vs. District Insurance officers and another” [ 2011 (3) SCC 566 ]. Even in the case of “Amrit Bhanu Shali and others” (supra), the Hon'ble Supreme Court has held that the selection of multiplier is based on the age of the deceased and not on the basis of age of the dependent. It has been held that there were number of dependents on the deceased, whose age can be different and, therefore, the age of the dependents has no nexus with the computation of compensation. I am, therefore, of the view that the multiplier of 8 used by the learned Tribunal is incorrect and has caused prejudice to the claimants. In the Claim Petition, the claimants had mentioned that the age of the deceased was 28 years at the time of accident. In keeping with the said averment in the Claim Petition, AW1, the claimant no. 1 stated in his affidavit-in-evidence that the deceased was 28 years old at the time of the accident. In the memorandum of autopsy, which was at Exhibit 27, the age of the deceased was mentioned as 28. The claimants had produced motor driving licence of the deceased at Exhibit 32 which showed that his date of birth is 20/01/1978. Even the CDC, which was part of Exhibit 31-colly, showed that the date of birth of the deceased was 20/01/1978. The accident had occurred on 06/10/2006. Therefore, it was proved that the deceased was about 28 years old, as on the date of accident. In the case of “Sarla Verma” (supra), it has been held that for the age group of 26 to 30 years, the multiplier to be used is 17. Therefore, in the present case, the multiplier of 17 ought to have been used. 16. In his cross-examination, AW1, the father of the deceased, stated that it was possible that the deceased had joined the first voyage as trainee and that both his voyages were indicated in the CDC which is part of Exhibit 31-colly. Therefore, in the present case, the multiplier of 17 ought to have been used. 16. In his cross-examination, AW1, the father of the deceased, stated that it was possible that the deceased had joined the first voyage as trainee and that both his voyages were indicated in the CDC which is part of Exhibit 31-colly. AW1 stated that the second voyage made by the deceased was between 11/03/2005 to 28/08/2005. Though AW1, the father of the deceased, stated that deceased had studied higher secondary science and had completed a course in Diploma in Mechanical Engineering, however, no documentary evidence with regard to the same was produced. Insofar as the working on the ship was concerned, it was on record that the deceased had made only two voyages prior to the accident and he was working as Engine Room Repairer. However, he had joined only as a trainee. His last i.e. second voyage was between 11/03/2005 to 28/08/2005 and after 28/08/2005, he did not go on the ship. In the circumstances above, the income that was earned while working on the ship cannot be taken as monthly income of the deceased at the time of the accident. The respondents had examined one Manoj Mahale, the Manager, Human Resources, of Sai Service Station, who deposed that the deceased was working as trainee in Sales Department from September, 2006 and that he passed away before concluding his training. The training that was given to him was to sell Maruti Vehicles. According to RW1, during the training period, even no stipend was paid to the trainees and the deceased was only paid Travelling Expenses. RW1 stated that the policy of the Company was that in case a trainee is found suitable, he would be absorbed in regular service as Sales Executive and such person would get salary of Rs. 4,000 to Rs. 4,500/- per month. In his cross-examination, RW1 stated that there was no commitment of the Company to absorb the deceased in service on completion of the training period. No doubt, RW1 stated that if the deceased in normal course was absorbed in the service, he would have earned the gross salary of Rs. 4,500/- and incentives proportionate to the sales made by him. In his cross-examination, RW1 stated that there was no commitment of the Company to absorb the deceased in service on completion of the training period. No doubt, RW1 stated that if the deceased in normal course was absorbed in the service, he would have earned the gross salary of Rs. 4,500/- and incentives proportionate to the sales made by him. Thus, at the time of death, the deceased was just a trainee and was engaged for giving training to sell Maruti Vehicles at Sai Service Verna and was not even paid any salary. As is already seen above, in the case of “Sarla Verma ” (supra), and also in the case of “Radhakrishna and another” (supra), the Hon'ble Supreme Court has held that an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects should be adopted where the deceased had permanent job and was below 40 years of age. In the present case, though the deceased was below 40 years of age, however, he did not have any permanent job and hence the question of adopting addition of 50% of the actual salary to the actual salary income, towards future prospects, does not arise. In such circumstances, I am unable to accept the contention of the learned Counsel appearing on behalf of the claimants that the monthly income of the deceased ought to have been taken as Rs. 6,000/-. No doubt, the deceased was a young healthy person. In my view, the learned Tribunal considered all the aspects and fixed the monthly income of the deceased to be Rs. 4,000/- per month and I am of the view that the same has been correctly fixed. 17. The yearly income of the deceased was, therefore, Rs. 48,000/-. No doubt the rule of deduction towards personal expenses is not inflexible and is merely a guideline, as is laid down in the case of “Sarla Verma” (supra). However, since the deceased was young and bachelor, the deduction of 50 % made by the learned Tribunal, by relying upon the case of “Sarla Verma (supra) as well as “Syed Basheer Ahamed & Ors. Vs. Mohd. Jameel & Anr.” ( AIR 2009 SC 1219 ), need not be disturbed. After the said deduction of 50%, the contribution of the deceased towards family becomes Rs. 24,000/-, which is the multiplicand. Vs. Mohd. Jameel & Anr.” ( AIR 2009 SC 1219 ), need not be disturbed. After the said deduction of 50%, the contribution of the deceased towards family becomes Rs. 24,000/-, which is the multiplicand. Hence, by using the multiplier of 17, the loss of dependency becomes Rs. 4,08,000/-. The claimant did not claim any compensation towards loss of affection of the son. They did not allege that an amount of Rs. 10,000/- was spent towards the funeral of their son. The learned Tribunal has awarded an amount of Rs. 2,000/- towards loss of estate and Rs. 2,500/- towards funeral expenses. In the case of “Sarla Verma” (supra), the claimants were held to be entitled to a sum of Rs. 5,000/- toward loss of estate and Rs. 5,000/- towards funeral expenses. By awarding the compensation of Rs. 10,000/- towards loss of estate and funeral expenses, the total compensation comes to Rs. 4,18,000/- (rounded up to Rs. 4,20,000/-). Therefore, I am of the considered view that the compensation to which the claimants are entitled is Rs. 4,20,000/-. 18. In the result, the appeal is partly allowed. (a) The impugned judgment and award stands modified insofar as the quantum of compensation is concerned. (b) The claimants are entitled to receive total compensation of Rs. 4,20,000/- along with interest at the rate of 9 % p.a. from the date of the application till the date of payment. Rest of the operative part of the order of the learned Tribunal is maintained. 19. The appeal stands disposed of accordingly.