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2018 DIGILAW 2841 (BOM)

Swati v. Jamuna Transport Corporation Ltd.

2018-12-03

R.K.DESHPANDE, VINAY JOSHI

body2018
JUDGMENT Vinay Joshi, J. - These two appeals in terms of section 173 of The Motor Vehicles Act, 1988 arise out of judgment and award dated 26.04.2010 in Motor Accident Claims Petition No. 92/2007 passed by Chairman, Motor Accident Claims Tribunal, Wardha. Appeal No. 988/2010 is of original petitioner claimants seeking enhancement of compensation amount, whilst appeal No. 35/2011 is of original respondent No.2 - Insurer of the offending vehicle on whom the liability to pay compensation jointly and severally was saddled. Since both appeals are arising out of the same impugned judgment and award, for the sake of convenience they are taken together for disposal. The parties are hereinafter referred throughout as they find place before the Tribunal. 2. Ill fated wife, children and mother of deceased Anil Dhamande who died in vehicular accident dated 07.11.2006 approached to the Tribunal in terms of section 166 of The Motor Vehicles Act, 1988 for grant of just compensation. At relevant time deceased Anil was traveling as occupant of Lancer car bearing registration No. MH26C555 on Nagpur -Jabalpur Road. Offending vehicle namely container (truck) bearing registration No. WB236737 came from opposite direction, driven in rash and negligent manner, dashed to the Lancer car. As a result and impact of said accident two occupants of car including Anil died on the spot. In such background, the petitioners claimed compensation from the respondents who are owner of container (respondent No.1), Insurer of container (respondent No.2), owner of car (respondent No.3), Insurer of car (respondent No. 4) and driver of container (respondent No.5). The petitioners prayed for compensation to the tune of Rs. 2,39,21,696/jointly and severally from all respondents. The rival parties led evidence before the Tribunal in oral and documentary form. Considering said evidence, the Tribunal was pleased to partially allow the monetary claim to the tune of Rs. 69,78,500/and directed Insurer, owner and driver of container to satisfy the award. Inasmuch as the Tribunal directed the owner and Insurer of car to pay Rs. 80,000/out of assessed compensation in terms of personal insurance coverage of the occupants of car. 3. In petitioners appeal No. 988/2010, impugned judgment is assailed to the extent of quantum of compensation amount. It is contended that the Tribunal erred in assessing the income of deceased, which resulted into grant of inadequate compensation. 80,000/out of assessed compensation in terms of personal insurance coverage of the occupants of car. 3. In petitioners appeal No. 988/2010, impugned judgment is assailed to the extent of quantum of compensation amount. It is contended that the Tribunal erred in assessing the income of deceased, which resulted into grant of inadequate compensation. Moreover, it is contended that the Tribunal has not made addition on account of loss of future prospects and therefore urged to grant ''just'' compensation. On the other hand, respondent No.2 National Insurance Company in its appeal No. 35/2011 assailed the finding of Tribunal about sole negligence of container driver, as well as challenged the quantum of compensation. 4. The Tribunal on assessment of evidence arrived at the conclusion that, due to rash and negligent driving of the container, the accident occurred. Having regard to the oral and documentary evidence, the Tribunal assessed the annual income of the deceased to the tune of Rs. 5,74,088/and on that basis compensation was determined. The Tribunal denied addition on account of future prospects by relying on the judgment of Apex Court in case of Sarla Verma, 2009 ACJ 1298 (SC). 5. Heard learned Advocates appearing for rival parties in both appeals and gone through record and proceedings. The death of Anil in the vehicular accident in question is not challenged. Two major points majorly fall for consideration i.e. negligence and quantum of compensation. We take the point of negligence at first for discussion. It is the case of the petitioners that at the relevant time, the deceased Anil being occupant of car was traveling towards Nagpur. The offending container was being driven in a rash and negligent manner. The container came from opposite direction in high speed and in a bid of overtaking a stationery vehicle, went to its complete wrong side and gave dash to car which was head on collision. Petitioner No.1 led evidence on affidavit (Exh.36) and completely blamed the container driver for causing accident. Undeniably, the Police registered offence against the container driver for causing accident due to rash and negligent driving. In order to substantiate the case of negligence of container driver, the petitioners have examined PW4 Sandeep Panpaliya (Exh. 83) who was occupant of car meaning thereby eyewitness to the incident. Besides that the petitioners have relied on certain documents i.e. Form Comp "AA" (Exh.42), FIR (Exh. 43), Postmortem notes (Exh. In order to substantiate the case of negligence of container driver, the petitioners have examined PW4 Sandeep Panpaliya (Exh. 83) who was occupant of car meaning thereby eyewitness to the incident. Besides that the petitioners have relied on certain documents i.e. Form Comp "AA" (Exh.42), FIR (Exh. 43), Postmortem notes (Exh. 45) and Spot Panchanama (Exh. 56). As against this, Insurer of container led evidence of its driver Santosh Yadav (Exh.87) on affidavit. Santosh in his affidavit in lieu of evidence tried to shift entire blame on car driver. Obviously, his version needs corroboration by other circumstances. 6. True, we cannot solely rely on the evidence of petitioner No.1 widow on the point of negligence, since she was not the eyewitness to the incident. The evidence of witness Sandeep (Exh. 83) coupled with Spot Panchanama (Exh. 56) as well as other Police papers are to be seen while dealing the point of negligence. As this stage one should remember the decision of Hon''ble Supreme Court in reported case of Bimladevi v. Himachal Pradesh State Road Transport Co. AIR 2009 SC 2819 wherein it is ruled that, the strict proof of an accident caused by an particular vehicle in a particular manner is not possible to be done by the claimants. They are merely to establish their case on the touch stone of preponderance of probabilities. The standard of proof beyond reasonable doubt cannot be invoked in claim petitions. To the next the Hon''ble Supreme Court in reported case of Kasam Lata v. Satbir 2011 (3) Mh.L.J. 722 (SC) observed that, in a case relating to motor accident claims, the claimants are not required to prove the case as required to be done in a criminal trial. Having regard to these settled propositions the point of negligence is to be assessed. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obliged to do. Negligence does not always mean absolute carelessness, but want of such a degree of care is required in particular circumstances. No absolute standard can be fixed, as to what constitutes negligence, differs from case to case. 7. Reverting to the facts, PW4 Sandeep in his evidence stated the detailed account of the occurrence. Negligence does not always mean absolute carelessness, but want of such a degree of care is required in particular circumstances. No absolute standard can be fixed, as to what constitutes negligence, differs from case to case. 7. Reverting to the facts, PW4 Sandeep in his evidence stated the detailed account of the occurrence. Precisely his evidence unfolds that at relevant time the car was driven in moderate speed as against this the offending container came from opposite direction in high speed and while overtaking stationery vehicle namely harvester, abruptly went to the right side of the road resulting into head on collision. The spot Panchanama bears a rough sketch of the place of occurrence which is useful in like cases. It reveals that the offending car was at extreme left side of the road whilst after dash container went ahead and dashed to road side tree. The said state of occurrence as well as the possession of vehicles soon after the accident as depicted in the spot Panchanama supports the evidence of Sandeep. It is abundant clear that container driver failed in its duty to take due care and note of other vehicles while overtaking stationery vehicle, which amounts to sheer negligence. The petitioners evidence on the point of negligence is well supported by the evidence of eyewitness and more particularly by police papers. Therefore we have no hesitation to uphold the finding of fact recorded by the Tribunal regarding sole negligence of container driver which is based on sound reasoning. 8. Then we may turn towards another important aspect of assessment of compensation amount. The claimants shown dissatisfaction to the quantum of compensation as has been awarded by the Tribunal. It is strenuously argued that the Tribunal has wrongly considered the annual income of deceased which was in fact income of seven months shown in Income Tax Return for the assessment year 2007 - 2008. In other words, it is argued that Anil died on 07.11.2006 therefore the last Income Tax Return only shows income for the period of seven months. The insurer of container in resistance submitted that the Tribunal has granted excess compensation. In other words, it is argued that Anil died on 07.11.2006 therefore the last Income Tax Return only shows income for the period of seven months. The insurer of container in resistance submitted that the Tribunal has granted excess compensation. To be particular, it is canvassed that the Tribunal ought to have deducted /rd amount towards living and personal expenses of deceased as well as multiplier of "15" ought to have applied as per the ratio laid down by the Apex Court in case of Sarla Verma (referred supra). Undeniably, deceased Anil was civil contractor by occupation and was doing construction business under the name and style as "Anil Construction". He was undertaking government contracts as part of his business. It has come in the petitioners evidence that deceased used to earn huge profit from his flourishing construction business. The petitioners have produced Income Tax Returns of three preceding years of deceased Anil. In these Income Tax Returns the income for assessment year 2005 - 2006 was shown at Rs. 13,89,649/, for assessment year 2006 - 2007 as Rs. 10,77,602/and for the last assessment year i.e. 2007 - 2008 it was of Rs. 13,12,372/. The petitioners have examined PW2 Mr. Bhutada who is Chartered Accountant and had prepared audit report of M/s. Anil Construction. His evidence is supported by the audit report (Exh. 66) for financial year 2006 - 2007 i.e. assessment year 2007 - 2008. Respondent No.2 Insurer of container examined their assessor Mr. Kakani who submitted his investigation report (Exh.92). The Tribunal has considered oral as well as documents evidence in the form of Income Tax Returns and audit report in detail. The Tribunal has rightly deducted amount of income tax and depreciation from profit i.e. income shown in audit report (Exh. 66). The Tribunal after making necessary deduction held annual income of deceased to the tune of Rs. 5,74,088/for the last assessment year 2007-2008. It reveals from the documents as well as evidence of respondents witness that, the income shown for the last assessment year was for the period of seven months. Naturally, while assessing income of deceased, one has to take into account annual income to base the calculation. Since Anil died in the month of November 2006, the income which reflects in Income Tax Return and other documents was of seven months which has to be enhanced in proportion to get annual income. Naturally, while assessing income of deceased, one has to take into account annual income to base the calculation. Since Anil died in the month of November 2006, the income which reflects in Income Tax Return and other documents was of seven months which has to be enhanced in proportion to get annual income. In like cases always there is no alternative but to make some guess work so as to achieve the vowed object of ''just'' compensation. Considering the documents and after making necessary deduction, the Tribunal has rightly assessed the income of deceased to the tune of Rs. 5,74,088/, but the said income was of seven months which is to be proportionately converted in to the annual income. On mathematical calculation the annual income of deceased would be of Rs. 9,84,150.85. 9. Petitioners have prayed for addition on account of loss of future prospects. Rather in appeal it was the claimants main contention to make addition on said count in view of latest pronouncement of Hon''ble Supreme Court in it its Constitutional Bench decision in case of National Insurance Co. Ltd., v. Pranay Sethi and others, 2017 ACJ 2700 . In said case considering the earlier divergent views in the filed, the Hon''ble Supreme Court ruled that in case the deceased was self-employed or on a fixed salary, there shall be addition of 40% of the established income where deceased was below the age of 40 years. While considering the aspect of addition on account of future prospects, the Tribunal by placing reliance on the judgment in case of Sarvla Verma has refused to award the same. The petitioners right to get fair compensation cannot be frozen merely because the Tribunal decided the claim petition prior to the pronouncement of above referred Constitutional Bench judgment. Needless to say that appeal is a continuation of proceeding. We cannot overlook the changed legal position while deciding the appeal. Certainly under the beneficial piece of legislation, petitioners are entitled for the benefit of settled legal position which is the law of land. In case at hand deceased was 37 years of age at the time of death. Deceased was a civil contractor i.e. self-employed person therefore naturally in view of Constitutional Bench decision 40% is to be added towards future prospect. On addition of 40% the annual loss of dependency comes to the tune of Rs. 9,84,150.85 + 393660 = 13,77,810. In case at hand deceased was 37 years of age at the time of death. Deceased was a civil contractor i.e. self-employed person therefore naturally in view of Constitutional Bench decision 40% is to be added towards future prospect. On addition of 40% the annual loss of dependency comes to the tune of Rs. 9,84,150.85 + 393660 = 13,77,810. Then the next step is about deduction on account of personal and living expenses of the deceased. Though the Insurer of container canvassed that there shall be deduction of 1 /4th amount, however in view of decision of Apex Court in above referred case of Sarla Verma, when the number of dependents family is in between 4 to 6 numbers than 1 /4th amount is to be deducted towards personal and living expenses of deceased. There is no reason or circumstance to deviate from said dictum. Admittedly, there are four claimants therefore /th is to be deducted on said count. As such by deducting /th amount it comes to the tune of Rs. 10,33,358/. It brings to the use of appropriate multiplier. The Tribunal erred in using multiplier of "16" while making calculation. In fact, in above referred case of Sarla Verma, the Hon''ble Supreme Court has fixed the multiplier of ''15'' for the age group in between 36 to 40 years as well as the said view was affirmed by Apex Court. The Tribunal totally erred in applying multiplier of "16". Since deceased was 37 years of age multiplier of 15 would apply. Therefore, total loss of dependency would be Rs. 10,33,358 x 15 = 1,55,00,370/. 10. Moreover, in view of above referred decisions in case of National Insurance Company Ltd. v. Pranay Sethi, reasonable amount of Rs. 15,000/towards loss of estate, Rs. 40,000/towards loss of consortium and Rs. 15,000/towards funeral expenses are to be added. As such, the petitioners total entitlement would be as follows: Loss of dependency Rs. 1,55,00,370.00 Loss of estate Rs. 15,000.00 Loss of consortium Rs. 40,000.00 Funeral expenses Rs. 15,000.00 Total Rs. 1,55,70,370.00 11. The Tribunal has considered that risk of five unnamed passengers of car was covered to the extent Rs. 80,000/each. Taking note of said fact, the Tribunal has saddled the liability of paying Rs. 80,000/on respondent No. 4 (Insurer of car) which is appropriate. 12. 15,000.00 Loss of consortium Rs. 40,000.00 Funeral expenses Rs. 15,000.00 Total Rs. 1,55,70,370.00 11. The Tribunal has considered that risk of five unnamed passengers of car was covered to the extent Rs. 80,000/each. Taking note of said fact, the Tribunal has saddled the liability of paying Rs. 80,000/on respondent No. 4 (Insurer of car) which is appropriate. 12. Accordingly, we affirm the findings of Tribunal to the extent of holding sole negligence of container driver but totally differ on the point of assessment of compensation amount for the reasons elaborated above. The petitioners are entitled for total compensation of Rs. 1,55,70,370/and to that extent the impugned judgment and award needs modification. In the result appeal No. 988/2010 of Original claimants stands partly allowed with proportionate cost. The impugned judgment and award is modified only to the extent of quantum of compensation to the tune of Rs. 1,55,70,370/. The remaining part of the order is maintained as it stands. Appeal No. 35/2011 filed by respondent No. 2 - National Insurance Co. Ltd. stands dismissed.