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2014 DIGILAW 706 (BOM)

Laurinda Gomes v. Janu Hari Gaude

2014-03-14

F.M.REIS

body2014
JUDGMENT 1. Heard Mr. D. Pangam, learned counsel appearing for the appellants and Mr. A. R. Kantak, learned counsel appearing for the respondent no.2. 2. The above appeal challenges the judgment and award dated 21.09.2006 passed by the Motor Accident Claims Tribunal, Panaji, whereby the claim petition filed by the appellants was partly allowed and the compensation to the tune of Rs.3,50,000/- was ordered to be paid to the appellants together with interest thereon at the rate of 6% per annum on a sum of Rs.1,81,163/- after deducting the amount of Rs.50,000/- paid by order dated 27.06.2002. 3. Upon being served with the summons, the respondent no.2 filed cross objection challenging the amount of compensation awarded by the learned Motor Accident Claims Tribunal. 4. Mr. Pangam, learned counsel appearing for the appellants has assailed the impugned judgment on the ground that the Tribunal has refused compensation on the basis that the business income of the deceased of running of a bar on the ground that no documentary evidence was produced that such bar was run by the deceased. The learned counsel further pointed out that in the deposition of AW1, it is categorically stated that the deceased was running a bar during night time though during the day he was carrying children from the Village to Sharada Mandir school at Panaji city. The learned counsel further pointed out that the deceased was carrying about 14 children to the school and collecting a sum of Rs.400/- per child towards such travelling expenses inclusive of snacks or food items provided to them during interval. The learned counsel thereafter pointed out that the appellants have filed an application under Order 41 Rule 27 of C.P.C. to produce additional evidence to produce the excise licence issued in favour of the appellant no.1. The learned counsel further pointed out that this material could not be adduced during the course of trial of the claim petition considering that the appellant no.1 was a widow and the other appellants were minor at the relevant time. The learned counsel further pointed out that the minor children have been deprived of their father and as such the Tribunal was not justified to fix the compensation on the assumption that the monthly income of the deceased was Rs.3500/-per month. The learned counsel further pointed out that the minor children have been deprived of their father and as such the Tribunal was not justified to fix the compensation on the assumption that the monthly income of the deceased was Rs.3500/-per month. The learned counsel further pointed out that the Tribunal has erred in fixing the multiplier as 11 though according to him considering the age of the deceased such multiplier ought to have been 13. The learned counsel further pointed out that considering that besides the appellant no.1, the deceased had three minor children in terms of the judgment of the Apex Court in the case of SarlaVerma V/s Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121 ), the personal expenses to be deducted ought to have been 25% as the deceased has left four dependents. The learned counsel further pointed out that even the learned Single Judge of this Court while disposing of the above appeal by judgment dated 23.08.2013 has accepted the said contention though the judgment was recalled as the respondents contended that they were not heard at the time of the disposal of the appeal. The learned counsel further pointed out that the Tribunal has awarded compensation on account of loss of consortium of Rs.15,000/-which ought to have been Rs.1,00,000/- in terms of the judgment of the Apex Court reported in (2013) 9 SCC 54 in the case of Rajesh and others V/s Rajbir Singh and others. The learned counsel further pointed out that the Tribunal also ought to have given compensation on account of future prospects which the Tribunal has erroneously refused to the appellants. The learned counsel further pointed out that the funeral expenses in terms of the said judgment of the Apex Court are to be fixed at Rs.25,000/- and not Rs.5000/-as awarded by the Tribunal. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has erroneously fixed the compensation on the basis of monthly income of Rs.3500/-when such compensation should have been fixed at the minimum sum of Rs.6000/- per month. The learned counsel further pointed out that the Apex Court in the judgment reported in (2013)10 SCC 695 in the case of MinuRout and Another V/s Satya Pradyumna Mohapatra and others has held that the salary of a driver can be accepted to be Rs.6000/-per month. The learned counsel further pointed out that the Apex Court in the judgment reported in (2013)10 SCC 695 in the case of MinuRout and Another V/s Satya Pradyumna Mohapatra and others has held that the salary of a driver can be accepted to be Rs.6000/-per month. The learned counsel as such points out that the judgment of the Tribunal be modified and the amount be enhanced as claimed by the appellants. 5. On the other hand, Mr. A. R. Kantak, learned counsel appearing for the respondent no.2 has disputed the contention of Mr. Pangam, learned counsel appearing for the appellants that the Tribunal has erroneously fixed the compensation on the assumption that the income of the deceased was Rs.3500/-per month when according to him there is no evidence on record to suggest that the deceased was earning Rs.3500/-per month. The learned counsel further pointed out that the style of living of the deceased itself suggests that the deceased had other source of income from the family which the appellants have not deprived by the death of the deceased. The learned counsel further pointed out that the evidence on record suggest that the deceased had a daughter who was being driven to Sharada Mandir and while dropping the daughter the deceased was also carrying more children to Sharada Mandir. The learned counsel further pointed out that even assuming the amount of Rs.400/-per child as claimed is accepted, the expenses on account of snacks and other food items should be a minimum of Rs.250/-per month and after deducting an amount towards depreciation and petrol expenses, it cannot be accepted that the Tribunal has correctly assessed the income of the deceased as Rs.3500/- per month. The learned counsel further pointed out that as far as the claim of the appellants that the deceased was running a bar, there is no evidence on record to establish the said aspect. The learned counsel also pointed out that the school period is only for 10 months considering that there are vacations for two months, and as such the Tribunal was not justified to fix the compensation on the assumption that the deceased was earning Rs.3500/-per month for 12 months in a year. The learned counsel has taken me through the evidence of AW1 and pointed out that AW1 herself was not in a position to state the actual income of the deceased from the bar business. The learned counsel has taken me through the evidence of AW1 and pointed out that AW1 herself was not in a position to state the actual income of the deceased from the bar business. The learned counsel has thereafter taken me through the income tax return filed only subsequent to the death of the deceased which suggests that the widow, the appellant no.1 herein was receiving an income to the tune of Rs.84,000/-towards the running of bar. The learned counsel further pointed out that this itself suggest that the appellants have not been deprived of any income on account of the death of the deceased towards the income generated from the bar. The learned counsel further pointed out that the respondents have also disputed the fact that the deceased was owning a bar or that he was running any such business during night time. The learned counsel has thereafter taken me through the judgments relied upon by Mr. Pangam and pointed out that the amount of compensation towards loss of consortium have been awarded essentially in the peculiar facts of the said case. The learned counsel further pointed out that the Tribunal has rightly assessed the compensation towards loss of consortium to the tune of Rs.15,000/-as well as towards love and affection as Rs.15,000/-and no interference is called for in the impugned judgment. The learned counsel further pointed out that the accident in the present case has occurred in the year 2001 and as such the judgment of the Apex Court fixing the compensation towards loss of consortium and towards loss of love and affection would not be applicable to the facts of the present case. The learned counsel further pointed out that the Apex Court in the said judgment has not issued any direction that such amount is to be awarded in all cases. The learned counsel as such points out that the Tribunal has erroneously fixed the compensation of Rs.3500/-per month when such compensation ought to have been fixed on the basis of notional income of Rs.1500/- per month and as such the impugned judgment deserves to be modified to that extent. 6. The learned counsel as such points out that the Tribunal has erroneously fixed the compensation of Rs.3500/-per month when such compensation ought to have been fixed on the basis of notional income of Rs.1500/- per month and as such the impugned judgment deserves to be modified to that extent. 6. I have carefully considered the submissions of the learned counsel and I have also gone through the records and on the basis thereof, the following points for determination arise in the present appeal: POINTS FOR DETERMINATION (i) Whether the Tribunal was justified to award the compensation to the tune of Rs.3,50,000/- to the appellants? (ii) Whether the Tribunal was justified to award further interest at the rate of 6% per annum on a sum of Rs.1,81,163/-? (iii) Whether the Tribunal was justified to fix the compensation of Rs.15,000/-towards the loss of consortium and towards the loss of love and affection? 7. With regard to the first point for determination, the Tribunal after assessing the material on record has come to the conclusion that the income of the deceased was Rs.3500/-per month. This finding has been arrived at by the Tribunal essentially on the ground that the deceased was carrying children to the school at Sharada Mandir from the Village Marcel to Panaji city. The respondents have failed to bring any evidence on record to rebut that the deceased was in fact carrying children to Sharada Mandir. Some of the children who were carrying by the deceased were also been examined to substantiate the contention of the appellants that the deceased was carrying out such activity. Considering that the Tribunal has accepted the fact that the deceased was in fact carrying such activity, I find no reason to interfere in the impugned judgment of the Tribunal fixing the income of the deceased on the basis that the such income of the deceased was Rs.3500/- per month. No doubt, Mr. Kantak, learned counsel appearing for the respondent no.2 may be justified to contend that such activity would go on only for a period of 10 months during the academic year. Nevertheless, considering that the Tribunal has not awarded any compensation on account of future prospects as contended by Mr. No doubt, Mr. Kantak, learned counsel appearing for the respondent no.2 may be justified to contend that such activity would go on only for a period of 10 months during the academic year. Nevertheless, considering that the Tribunal has not awarded any compensation on account of future prospects as contended by Mr. Pangam, learned counsel appearing for the appellants, I find that the compensation awarded by the Tribunal on the basis that the income of the deceased was Rs.3500/- per month is fair, just and appropriate. The additional amount, if any, to be awarded on account of future prospects is duly taken care of in the impugned judgment of the Tribunal as the Tribunal has accepted that such income was generated for 12 months in a year. Though Mr. Kantak, learned counsel appearing for the respondent no.2 has vehemently argued that the amount of Rs.3500/- is on the higher side, I find no justification in any of the contention of Mr. Kantak, the learned counsel appearing for the respondent no.2 to interfere with such determination of the income of the deceased as fixed by the learned Tribunal. It is well settled that in a claim petition, it is the duty of the Tribunal to fix a reasonable compensation. The income derived from the bar business as claimed by the appellants has not been established but in any event the records reveal that the appellants are not deprived of such income due to the death of the deceased. In the present case, the deceased has expired living behind his widow and three minor children. In such circumstances, I find no reason to interfere with the amount fixed by the Tribunal on the assumption that the income of the deceased was Rs.3500/- per month. The first point for determination is answered accordingly. 8. With regard to the second point for determination, I find that in terms of the judgment of the Apex Court in the case of Sarla Verma, (supra) considering that the deceased was 49 years of age at the time when he met with an accident the multiplier ought to have been 13. Though Mr. 8. With regard to the second point for determination, I find that in terms of the judgment of the Apex Court in the case of Sarla Verma, (supra) considering that the deceased was 49 years of age at the time when he met with an accident the multiplier ought to have been 13. Though Mr. Kantak, learned counsel appearing for the respondent no.2 tried to point out that though the accident had occurred on 03.03.2001, the deceased had completed 50 years on 07.03.2001, I find that in the peculiar facts and circumstances of the case, the question of giving any multiplier other than the one the deceased would be entitled on the basis that he was less than 50 years at the time of the accident would not justify. In such circumstances, in terms of the judgment of the Apex Court in the case of Sarla Verma (supra) the multiplier ought to have been 13 and not 11 as awarded by the Tribunal. To that extent, the impugned judgment is deserved to be modified. 9. With regard to further interest at the rate of 6%, this Court in the judgment dated 17.09.2013 in the case of Mrs. Lila Agnes Fernandes & Ors. V/s Shri Maganlal Ramadhar Pal & Ors passed in First Appeal No. 113 of 2008 has come to the conclusion after relying upon the judgment of the Division Bench of this Court that further interest is to be awarded on the total amount of the compensation awarded by the Tribunal. Hence, the interest at the rate of 6% per annum has to be awarded on the total amount of compensation awarded by the Tribunal. The second point for determination is answered accordingly. 10. With regard to the third point for determination, the Apex Court in the judgment reported in (2013) 9 SCC 54 in the case of Rejeshand others V/s Rajbir Singh and others has observed at para 17 thus: “17. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi. We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs 2500 to Rs 10,000 in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma case, it was held that compensation for loss of consortium should be in the range of Rs 5000 to Rs 10,000. In legal parlance, “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.” 11. Taking note of the observations of the Apex Court, no doubt, considering inflation the amount of compensation on account of loss of consortium is to be fixed to the tune of Rs.1,00,000/- as a fatal accident is involved in the present case. Taking note of the observations of the Apex Court, no doubt, considering inflation the amount of compensation on account of loss of consortium is to be fixed to the tune of Rs.1,00,000/- as a fatal accident is involved in the present case. Apart from that, the Apex Court has also fixed the compensation for loss of love and affection to the tune of Rs.1,00,000/-. On perusal of the facts in the said case, I find that the accident therein had taken place somewhere in the year 2007. In the present case, the accident has occurred somewhere in the year 2001. Considering the said aspect, reasonable compensation on account of loss of love and affection and loss of consortium would be Rs.50,000/- on each counts. Hence, the compensation on account of loss of consortium is to be fixed at Rs.50,000/- instead of Rs.15,000/- awarded by the Tribunal in the impugned judgment and on account of loss of love and affection Rs.50,000/- instead of Rs.15,000/- as awarded by the learned Tribunal. The third point for determination is answered accordingly. 12. In view of the above, I pass the following: ORDER (i) The appeal is partly allowed. (ii) The appellants are entitled to the total compensation of Rs.4,50,702/- together with interest at the rate of 6% per annum from the date of filing of the claim petition up to the date of payment. (iii) The amount already paid under Section 140 of the Motor Vehicles Act shall stands deducted from the said amount of compensation. (iv) The appellants are entitled for further sum of Rs.70,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition up to the actual payment. The impugned judgment stands modified accordingly. (v) The appeal stands disposed of accordingly. (vi) Cross objection stands accordingly disposed of. (vii) Misc. Civil Application No.1032 of 2013 also stands disposed of accordingly.