Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 2664 (BOM)

Future General India Insurance Co Ltd. v. Florin Dsouza E Menezes

2019-12-05

C.V.BHADANG, M.S.SONAK

body2019
JUDGMENT M.S. Sonak, J. - Heard Mr. Lopes, the learned Counsel for the appellant and Mr. Afonso, the learned Counsel for the respondent nos. 1 to 5. 2. This Appeal questions the quantum of compensation as well as the interest awarded thereon, by the Presiding Officer of the Motor Accident Claims Tribunal, in his judgment and award dated 14.08.2018 in Claim Petition No. 92/2017. 3. Mr. Lopes, the learned Counsel for the appellant, at the very outset stated that this Appeal was restricted to the questioning of the quantum of compensation and the interest awarded thereon by the impugned judgment and award. He pointed out that the widow (AW1) in her examination in chief has stated that her deceased husband was drawing monthly salary of Rs.50,065/-. He has pointed out that only the tentative salary statement of the deceased was produced on record by the Headmistress (AW-3) of the School, where the deceased was allegedly working as Upper Division Clerk. He pointed out that even the tentative salary statement refers to salary of Rs.50,065/- for the month of February, 2017. He submitted that the salary certificate produced on record by AW-3 also inspires no confidence. He submits that no evidence was produced in the form of proposed salary certificate or banking document, since, the witness had stated that the salary was paid through the proper banking challan. 4. Mr. Lopes, the learned Counsel, further pointed out that from the tax paid counterfoil produced on record on behalf of the claimants, it is possible to estimate the income of the deceased. He submits that calculations were produced before the Tribunal, on the basis of this counterfoil to suggest that the annual income of the deceased would not exceed Rs.4,33,900/- per annum. He submits that the Tribunal is clearly erred in computing the monthly salary of the deceased at Rs.58,884/- when in fact, same, could never have exceeded Rs.43,252/-, without prejudice. He submits that the salary could have been taken as Rs.50,065/- at the highest. He submits that for all these reasons, the quantum of compensation is required to be reduced. 5. Mr. Lopes, the learned Counsel, also submits that the Tribunal has seriously erred in holding that the prevailing rate of interest on deposits is 9% and proceeds to award interest at the rate of 9% per annum. He submits that for all these reasons, the quantum of compensation is required to be reduced. 5. Mr. Lopes, the learned Counsel, also submits that the Tribunal has seriously erred in holding that the prevailing rate of interest on deposits is 9% and proceeds to award interest at the rate of 9% per annum. He submits that in these days of falling interest rate, there was no warrant to award interest at the rate of 9% per annum. 6. Mr. Afonso, the learned Counsel, for the respondent nos. 1 to 5 has defended the impugned judgment and award, on the basis of the reasoning reflected therein. He pointed out that the appellant is deliberately misconstruing the evidence on record. He pointed out that there was no serious challenge to the evidence on behalf of the claimants in the course of the cross examination. He pointed out that mere suggestions are not sufficient to dispel the evidence, both, oral as well as documents produced on behalf of the claimants. 7. Mr. Afonso, the learned Counsel, pointed out that the evidence of AW-3, as also the salary details produced by her have been correctly construed by the MACT. He pointed out that though, the tentative salary statement refers to the salary of the deceased as Rs.50,065/- for the month of February, 2017, there is clear evidence that this salary was enhanced, consequent upon the implementation of 7 th pay scale, revised with retrospective effect i.e. from the year 2016 itself. He submits that the deceased was a Upper Division Clerk at the Convent of Jesus and Mary Sarvajanik High School, Carambolim, Tiswadi. For all these reasons, he submits that there is no case made out to warrant interference with the compensation awarded or the interest, which is awarded. 8. We have considered the rival contentions. According to us, there is absolutely no warrant to interfere with the quantum of compensation determined by the Tribunal. The evidence on record establishes beyond doubt that the deceased was indeed working as Upper Division Clerk in the Convent of Jesus and Mary Sarvajanik High School, Carambolim, Tiswadi. AW-1 in her examination in chief has deposed that the deceased was drawing monthly salary of Rs.50,065/- and upon implementation of 7th pay scale since January, 2016, the deceased was entitled to salary of Rs.60,000/- per month. AW-1 in her examination in chief has deposed that the deceased was drawing monthly salary of Rs.50,065/- and upon implementation of 7th pay scale since January, 2016, the deceased was entitled to salary of Rs.60,000/- per month. Headmistress of the said School (AW-3) was also examined in the matter and she has given the details of salary earned by the deceased. There is absolutely no reason to disbelieve the deposition of AW-3, which is backed by documents. There was no serious challenge thrown to the deposition of any of the claimant''s witnesses. The suggestions were only perfunctory in nature and sought to deny everything that was deposed by the witnesses. In the absence of any serious challenge, both, to the oral evidence as well as to the documents produced on behalf of the claimants, we do not find that there was any further necessity to produce bank statement or any other documentary evidence, on the aspect of salary, which was drawn by the deceased, at the time of his unfortunate demise in a motor vehicle accident on 17.04.2017. Finding that the deceased was drawing a monthly salary of Rs.50,084/-, which is supported by oral as well as documentary evidence on record, the same warrants no interference. Once, this basic finding is sustained, even Mr. Lopes, the learned Counsel, did not urge that there was any mistake in the further calculations made by the Tribunal. The further calculations, according to us, are in terms of law laid down by the Hon''ble Supreme Court in case of National Insurance Company Limited Vs. Pranay Sethi and Others, (2017) 16 SCC 680 . 9. On the aspect of interest, however, we agree with Mr. Lopes, the learned Counsel, that there was no justification for awarding interest at the rate of 9% per annum. The Tribunal has merely stated that the prevailing rate of interest on deposits is 9%. Mr. Lopes, the learned Counsel, is quite right in submitting that the prevailing rate of interest as on 15.11.2017, cannot be said to have been 9%. According to us, interest at the rate of 7% per annum will meet the interest of justice, in the peculiar facts and circumstances of the present case. To that extent, the impugned judgment and award will have to be modified. 10. Accordingly, this Appeal is partly allowed. The quantum of compensation is not disturbed. According to us, interest at the rate of 7% per annum will meet the interest of justice, in the peculiar facts and circumstances of the present case. To that extent, the impugned judgment and award will have to be modified. 10. Accordingly, this Appeal is partly allowed. The quantum of compensation is not disturbed. However, the interest rate is modified from 9% to 7% per annum. Save and except for the said modification, the impugned judgment and award is hereby confirmed. In the peculiar facts of the present case, there shall be no order as to costs. 11. Mr. Lopes, the learned Counsel, states that the entire awarded amount together with interest is deposited in this Court. Accordingly, we direct the Registrar to pay to respondent nos. 1 and 2 as well as the appellant herein, the proportionate amounts in terms of the impugned judgment and award, which is modified by this judgment and order. The Registry to take into consideration the amount already withdrawn by respondent nos. 1 to 5. This exercise to be completed within 30 days from today. 12. Though, we are not interfering with the quantum of compensation awarded, we note that some of the claimants are minors and therefore, the Tribunal was duty bound to make some orders, which would have protected the interest of such minors. 13. Accordingly, we direct that the share of the respondent nos. 3 to 5 shall remain invested in a nationalized bank, until the said respondents attain the age of majority. However, we permit the respondent no. 1, who is the mother and natural guardian of respondent nos. 3, 4 and 5 to withdraw the interest on the said amount on quarterly basis, if she so chooses. 14. Mr. Afonso, the learned Counsel, states that in case, there is any short fall in the deposit, leave may be granted to take out execution. Obviously, if there is short fall, the respondents will have liberty to take out execution. 15. The Appeal is disposed off in the aforesaid terms. There shall be, however, no order as to costs.