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Madhya Pradesh High Court · body

2017 DIGILAW 684 (MP)

Oriental Insurance Co. Ltd. v. Asha Devi Potdar

2017-05-18

VIVEK RUSIA

body2017
ORDER : Vivek Rusia, J. Both the miscellaneous appeals are arising out of the award dated 23.8.2016, passed in the Claim Case No.37/2006, hence, both the appeals are being decided co-jointly. 2. Miscellaneous Appeal No.3432/2006 has been filed by the Oriental Insurance Company challenging the quantum of compensation awarded in favour of respondents No. 1 and 2 (claimants). The Miscellaneous Appeal No.3900/ 2006 has been filed by the claimants No.1 and 2 for enhancement of the compensation amount. 3. For disposal of these two appeals, the facts from Miscellaneous Appeal 3900/2006 are being taken which are as under: 4. On 22.9.2004, at about 2:15 p.m. near Yadav Dhaba Indore-Dhar Road, Gram Billor a Car bearing registration No.MP09/T-0363 had an accident with a Truck bearing registration No.MP09/K/5 863. The said car was owned by non-appellant No.4 and driven by late Gauri Shankar. Both the Car and Truck were insured by Oriental Insurance Company. In the said accident Mr. Anil Mittal, Mrs. Mridula Mittal, Ku. Amrita Mittal and Mr. Vishal Potdar received grievous injuries and immediately they were taken to Choithram Hospital. Due to the said accident Kumari Amrita Mittal died on the way to hospital and Mr. Anil Mittal and Mr. Vishal Potdar died on 22.9.2004 in Choithram Hospital during their treatment. Their dead bodies were sent for the post-mortem by the police after lodging the FIR in Betma Police Station, District Indore. 5. After getting the information about said accident, appellants No. 1 and 2 the claimants i.e. mother and father of Vishal Potdar came to Indore from Mumbai and took his dead body to Mumbai to perform last rites. 6. Appellants No. 1 and 2 respondent No. 1 filed claim case before the Motor Accident Claims Tribunal, Indore which was registered as Claim Case No.68/2005. According to the claimant, after acquiring the degree of BMA from Drexel University, USA in the year 2003. Vishal has started his career as Executive in Siyaram Silk Mills Ltd., Mumbai w.e.f. 1.7.2003 on salary of Rs.34,250/- per month. At the time of death of Vishal was aged about 25 years 8 months. His future was very bright, he could have been promoted to the post of Executive Officer with the salary of Rs. 1.00 lac. He was only son of claimants, therefore, they were totally dependent on his income. At the time of death of Vishal was aged about 25 years 8 months. His future was very bright, he could have been promoted to the post of Executive Officer with the salary of Rs. 1.00 lac. He was only son of claimants, therefore, they were totally dependent on his income. The tmck was driven by the driver rashly and negligently and dashed the car due to which Vishal has died. Before the MACT, Indore, the claimants have claimed the amount of Rs.2.50 crore under different heads as compensation. 7. After notice, the Oriental Insurance Company filed the reply opposing the compensation on the ground that it is highly excessive and on a higher side. In support of the claim, claimants has got exhibited as many as 58 documents including passport, salary certificate, income tax return of late Vishal Potdar. Claimant No. 1 examined himself as PW 1, Ashok Jalaan as PW2, Surendra S. Shetty as PW3, Ramesh Sisodiya as PW4. 8. Insurance Company did not examined any witness and did not produce any document in the claim case. Learned MACT has passed the award dated 23.8.2008 by recording the finding that Vishal Potdar has died due to the accident caused by the truck driver while driving the truck rashly and negligently. There was no violation of terms and conditions of the insurance policy by the truck and the claimants are entitled to get the compensation. Learned MACT has awarded the amount of Rs.20.35 lacs as compensation along with the interest @ 6% from 13.4.2005 till payment. Learned MACT while assessing the compensation has considered the income of Vishal Potdar as Rs.34,456/-per month (Rs.5.40 lacs per annum) on the basis of salary certificate and income tax return. Looking to the age of claimants No. 1 and 2 as 50 and 55 years, multiplier of 11 was applied and since Vishal Potdar was unmarried, therefore, the dependency was assessed as ?rd i.e. 1.80 lacs. Amount of Rs.5,000/-has been awarded under the head of funeral expenses and Rs.50,000/- has been awarded for taking dead body from Indore to Bombay and accordingly the amount of Rs.20,35,000/- has been awarded as total compensation. 9. Amount of Rs.5,000/-has been awarded under the head of funeral expenses and Rs.50,000/- has been awarded for taking dead body from Indore to Bombay and accordingly the amount of Rs.20,35,000/- has been awarded as total compensation. 9. Being aggrieved by the aforesaid award, the insurance company has filed the Miscellaneous Appeal No.3432/2006 on the ground that the Tribunal has grossly erred in holding the amount of Rs.45,000/- per month, as per the income tax return Exs.P-25 to P-27. The Tribunal has further erred in considering the dependency l/3rd despite to the fact that the claimant No.2 is a businessman and multimillionaire, hence, they cannot be considered as dependent on the income of deceased Vishal. The annual salary of Vishal Poddar was only Rs.2,73,942/-, therefore, the amount of Rs.20,35,000/- as compensation is on a higher side and liable to be reduced. The apex Court in various cases has held that the compensation should be just and reasonable and could not be considered as bounty and Bonanza. The Tribunal ought to have considered that the claimants are big businessmen and owner of Siyaram Silk Mills Ltd., Mumbai, hence, they were not dependent on the income of the deceased. 10. The claimants have filed the Miscellaneous Appeal No.3900/2006 claiming the enhancement of compensation on the ground that looking to the age of deceased wrong multiplier has been applied. The deceased Vishal was aged about 25 years and 8 months and was having the decree of MBA from USA and was working as Executive on a salary of Rs.34,250/-.His total income was 38,000/- per month including incentive, leave encashment, and bonus, therefore, the learned Tribunal ought to have taken his salary as Rs.38,000/-per month. Looking to his age i. e. 25 years 8 months, the multiplier of 18 ought to have been applied. The Tribunal has further wrongly taken the dependency as l/3rd whereas as per the law settled by the Hon'ble Supreme Court in case of Bijhoy Kumar Dugar v. Biyadhar Dutta and others, reported in 2006 ACJ 1058 , the dependency ought to have been considered as ?rd. The Tribunal has not considered the evidence of P W3 Sunil Shetty who has deposed that the future of the deceased was very bright, he could have got the promotion upto the post of Executive Officer with a salary of Rs. 1.00 lac per month. The Tribunal has not considered the evidence of P W3 Sunil Shetty who has deposed that the future of the deceased was very bright, he could have got the promotion upto the post of Executive Officer with a salary of Rs. 1.00 lac per month. The Tribunal has further wrongly assessed the future income as P W3 has further deposed that the claimant No.2 (father of the deceased) has started his career in the year 1981 with a salary of Rs.3,000/- per month and now he has become the Chairman-cum-Managing Director of the Company with total salary of Rs.53,14,471/- likewise one of the Director Shri Keshaw Poddar is getting the salary @ Rs.50,61,879/-, since, there was an average enhancement in the salary by 7706%, therefore, the amount of compensation is liable to be enhanced upto 2.50 crore. 11. Shri S.V. Dandwate, learned counsel for the insurance company has cited various judgment in support of their contention that amount awarded by the MACT is on a higher side and counsel for the claimants has cited various judgments of the Supreme Court as well as the High Court in support of their claim for enhancement of compensation.The insurance company has placed heavy reliance over the latest judgment passed by the apex Court in case of Divisional Manager, Oriental Insurance Company Ltd. v. Swapna Nayak and others, reported in 2017 ACT 697, in which the apex Court has held that if under one head reasonable amount has been awarded and under another head nothing has been awarded though it ought to have been awarded but the figure of the award of compensation payable to the claim appears to be just and reasonable then in such eventuality it is not proper to interfere with such award. If overall award of compensation is just and proper then such award deserves to be upheld. He has drawn the attention of this Court towards Exs.P-25 to P-27 which are the income tax return of the Vishal Potdar and according to which his income from salary was shown as Rs.2,73,942/- and income from house property was shown as Rs. 1,80,075/-, he was given appointment w.e.f. 1.7.2003 and he died on 22.9.2004. He has drawn the attention of this Court towards Exs.P-25 to P-27 which are the income tax return of the Vishal Potdar and according to which his income from salary was shown as Rs.2,73,942/- and income from house property was shown as Rs. 1,80,075/-, he was given appointment w.e.f. 1.7.2003 and he died on 22.9.2004. Income tax return was submitted for the period of 1.4.2003 to 31.3.2004 i.e. for the period of 9 months only, therefore, the salary mentioned in income tax return ought to have been taken into consideration by the Tribunal not the income from house properties. He further submitted that father cannot said to be a dependent only the mother is liable to be treated as dependent. Shri Dandwate, learned counsel has further placed reliance over the judgment passed by the apex Court in case of Shashikala and others v. Gangalakshmamma and another, reported in 2015 ACJ 1239 , in which the apex Court has held that the Motor Vehicles Act does not empower the Tribunal to determine the compensation arbitrarily, although the Act is a beneficial legislation, it can neither be allowed as a source of profit nor as a windfall to the persons affected. Determination of compensation has to be fair and reasonable and acceptable by the legal standards. 12. Shri Sourabh Neema, learned counsel for the claimant has argued that learned MACT has committed error of law as well as material while assessing compensation. Learned Tribunal did not applied proper multiplier looking to the age of Vishal Poddar at the time of accident his salary was not taken into consideration. The amount of compensation is liable to be enhanced on each and every head. He placed reliance over various judgments of High Court as well as the Supreme Court on following heads: "1. Gross income is liable to be taken for assessment of compensation. - (A) 2008 ACJ p.614 SC (paras 117 to 125) [National Insurance Co. v. Indira Srivastava]; (B) 2011 ACJ p. 141 SC (paras 9 to 12) [Sunil Sharma v. Bachittar Singh]. 2. Future prospects: (C) 2015 ACJ p. 1985 SC (Three Judges Bench) [Munnalal Jain v. Vipin Kumar Sharma] (p. 11); (D) 2013 ACJ p. 1403 SC (Three Judges Bench) [Rajesh v. Rajveer Singh] (pp. v. Indira Srivastava]; (B) 2011 ACJ p. 141 SC (paras 9 to 12) [Sunil Sharma v. Bachittar Singh]. 2. Future prospects: (C) 2015 ACJ p. 1985 SC (Three Judges Bench) [Munnalal Jain v. Vipin Kumar Sharma] (p. 11); (D) 2013 ACJ p. 1403 SC (Three Judges Bench) [Rajesh v. Rajveer Singh] (pp. 11-12); (E) 2011 ACJ p.743 SC (p.10) [K.R. Madhusudan v. Administrative Officer]', (F) 2012 ACJ p.2131 SC [New India v. Gopali] (p.20); (G) 2009 ACJ p. 1298 SC (pp. 10, 11 and 14) [Sarla Verma v. Delhi Transport Corporation]. 3. Multiplier as per age of the deceased: (H) 2015 ACJ p. 1985 SC (Three Justice Bench) [Munnalal Jain v. Vipin Kumar Sharma] (pp.11, 12 and 13); (I) 2013 ACJ p. 1253 SC (Three Justice Bench) [Reshma Kumari v. Madan Mohan] (pp.33-34); (J) 2009 ACJ p. 1298 SC (pp. 10,11 and 14) [Sarla Verma v. Delhi Transport Corporation]. 4. Deceased Vishal Poddar unmarried only son of parents dependent mother and father dependency should be considered as ½ of the income : (C) 2015 ACJ p. 1985 SC (Three Justice Bench) [Munnalal Jain v. Vipin Kumar Sharma] (p. 11); (G) 2009 ACJ p. 1298 SC (pp. 10,11 and 14) [Sarla Verma v. Delhi Transport Corporation], 5. Family members are having their own earning compensation cannot be reduced : (J) 2003 ACJ p.1382M.P.D.B. [Chandan Singh v. S.P. W. Construction] (p. 11); (K) 2007 ACJ p.959 M.P. D.B. [Dr. Pramod Chandra v. Ashwini Arora (pp.3, 5 and 6)]. (L) Miscellaneous Appeal No. 188/98 [Smt. Mohnibai Maru v. Vinod] (p.3) M.P. D.B. decided on 26.11.2002; 6. Deceased was only son of the appellant - Loss of Love and affection: (M) 2012 ACJ p.2002 (p. 19) [Amrit Bhanu Shali v. National Insurance Co.]." ORDER 13. It is not disputed that the untimely death of Vishal Potdar in a road accident on 22.9.2004 was very unfortunate and sad. He was a young, well educated and only son of the claimants. The loss due to death of a son at young age cannot be compensated by any amount of compensation. The claimant No.2 father of Vishal Potdar is Chairman-cum-Director of Siyaram Silk Mills, Mumbai, himself is a multimillionaire. That longevity of family members are not disputed as it has been informed that the grandfather of Vishal Potdar is still alive. That Vishal was working as an Executive in his own company. The claimant No.2 father of Vishal Potdar is Chairman-cum-Director of Siyaram Silk Mills, Mumbai, himself is a multimillionaire. That longevity of family members are not disputed as it has been informed that the grandfather of Vishal Potdar is still alive. That Vishal was working as an Executive in his own company. In future he could have become the Chairman-cum-Managing Director of the Company. Looking to his degree and education, it can be presumed that the company could have achieved more heights in business. Due to the death of Vishal Potdar great loss to the company cannot be assessed in terms of money. The chock, mental agony and loss of love and affection due to the death of sole son also cannot be compensated by any amount of compensation. Since, the claim was filed before the MACT, Indore under the Motor Vehicles Act, therefore, same is required to be assessed and calculated as per the guidelines issued time to time by the apex Court in various cases. The apex Court has held that compensation should be just and proper and it cannot be bonanza and bounty to the claimants over all compensation should be just and proper although, may be awarded under one head and not awarded under the other head under which it ought to have awarded. 14. Though, the appointment letter of Vishal Poddar mentions his basic salary as Rs.30,000/- with Rs. 3,000/- DA and Rs. 1,250/- Medical Expenses i.e. Ex.P-33(c). That Ex.P-24 certified that emoluments from 1.7.2003 to 29.1.2004 were Rs.33,000/- to Rs.70,000/- per month (Ex.P-24) but salary in income tax return was shown as Rs.2,73,943/- from 1.4.2003 to 31.3.2004 (i.e. 9 months) hence, it comes to Rs.30,438/- per month, therefore, the Tribunal has rightly taken into consideration the salary of Vishal Poddar as Rs.34,250/-per month which is not liable to be interfered in these appeals. The Tribunal has enhanced the salary to Rs.45,000/- per month by adding Rs. 10,000/- per month looking to his future prospects in service, which appears to be on a lower side. He was employed in the company of his father and grandfather therefore, he could be Chairman of the Company. In private sectors there is no limit to enhancement of salary unlike Government employee in a Government Department, therefore, in order to give just and proper compensation under the head of future income, in place of Rs. He was employed in the company of his father and grandfather therefore, he could be Chairman of the Company. In private sectors there is no limit to enhancement of salary unlike Government employee in a Government Department, therefore, in order to give just and proper compensation under the head of future income, in place of Rs. 10,000/-, amount of Rs.20,000/- can be taken into consideration, therefore, his monthly salary would be Rs.54,250/-per month and accordingly annual income would be as Rs.6,51,000/-. 15. At the time of filing of the claim case, age of the claimants No. 1 and 2 were about 50 to 55 years, therefore, the multiplier of 11 was taken into consideration. Now, more than 13 years have been passed and it has been informed that they are still alive and the grandfather of Vishal Poddar is also alive today. Age of deceased at the time of death is also liable to be taken into consideration for deciding multiplier. That Vishal was only 25 years 8 months old at the time of death, therefore, the multiplier of 15 would be appropriate. 16. The Tribunal has assessed the dependency @ l/3rd, but 3 Judges Bench of the Supreme Court in case of Munnalal Jain v. Vipin Kumar Sharma, reported in 2015 ACJ 1985 , has held that in case of death of bachelor between 26 to 30 years, the multiplier of 17 is proper as per the table given in the Motor Vehicles Act. In case of Sarla Verma v. Delhi Transport Corporation, reported in 2009 ACJ 1298 , which has been relied in case of Munnalal Jain (supra), and Reshma Kumari v. Madan Mohan, reported in 2013 ACJ 1253, it has been held that where the deceased was bachelor and claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because bachelor would tend to spend more on himself. Relevant para of the aforesaid judgment is reproduced below: "15. In Patricia Jean Mahajan 5, this Court had an occasion to consider sections 163 A and 166 of the 1988 Act. With regard to section 163 A, the Court stated, "the noticeable features of this provision are that it provides for compensation in the case of death or permanent disablement due to accident arising out of use of motor vehicle. In Patricia Jean Mahajan 5, this Court had an occasion to consider sections 163 A and 166 of the 1988 Act. With regard to section 163 A, the Court stated, "the noticeable features of this provision are that it provides for compensation in the case of death or permanent disablement due to accident arising out of use of motor vehicle. The amount of compensation would be as indicated in the Second Schedule. The claimant is not required to plead or establish that the death or permanent disablement was due to any wrongful act or negligence or default of the owner of the vehicle or any other person." 17. Placing reliance over the aforesaid three judgments, the Tribunal has wrongly deducted l/3rd income being a bachelor in place of ½, hence now deduction ½ would be applied to assess proper compensation. 18. That under other heads, the Tribunal has already awarded appropriate amount of compensation which has not been disputed by the insurance company, therefore, the same are hereby upheld. 19. In view of the above fact and circumstances, the appeal filed by claimants is hereby allowed by enhancement compensation as follows: Calculation Total Rs.34,250/- (monthly income + Rs.20,000/- (future prospects) Rs.54,250/- per month Rs.54,250/- multiplied by 12 (annual income) Rs.6,51,000/- Rs.6,51,050/- multiplied by 15 (multiplier) Rs.97,65,000/- Deduction of ½ for dependency Rs.48,82,500/- Funeral Expenses (no changes) Rs. 5,000/- Travel Expenses (no changes) Rs.50,000/- Total Rs.49,37,500/- 20. The aforesaid amount shall carry interest @ 6% from the date of filing of claim till payment. The amount already paid is liable to be deducted from the awarded amount. 21. In view of the above, appeal filed by the Insurance Company i.e. Miscellaneous Appeal No.3432/2006 is dismissed and appeal filed by claimants No. 1 and 2 i.e. Miscellaneous Appeal No.3900/2006 is partly allowed. No order as to costs.