The New India Assurance Company Limited v. Dr. Shridhar Shripad Karandikar

4) In the affirmative. Rs.5,15,000/- including the amount of no fault liability'. Respondent nos. 1, 2 jointly and severally.

5) As per final order below.”

9. The Member MACT, Sangli by his judgment and award dated 20 September 2005, partly allowed the Claim Petition. It thereby allowed the Claim Petition to the extent of Rs.5,15,000/including the amount of Rs.50,000/- as ‘No Fault Liability” with interest at the rate of 9% per annum from the date of filing of the claim Petition till its realization, jointly and severally to be paid by Respondent Nos. 1 and 2, to the Petitioner Nos. 1 and 2 equally.

10. Being aggrieved by the award dated 28 September 2005 the Insurance Company has filed the present First Appeal No.282 of 2006 on the following grounds:- “a) That the learned Tribunal materially erred in law in awarding the compensation to Respondent No.1 and 2 aggregating in to Rs. 5.15.000 without any basis in law as the assessment was not backed by cogent evidence and was also a violation of the Law laid down by the Hon'ble Apex Court and the Hon'ble High Courts: b) That the Tribunal materially erred in law in ignoring that there was a high degree of contributory negligence on part of the deceased himself who took the vehicle on to the wrong side of the road in overtaking a vehicle and dashed with the vehicle insured with the appellants. c) That the Learned Tribunal materially erred in fixing the monthly earning at Rs. 10,000/- i.e annually Rs. 1,20,000/- and further erred in deducting only one-third from the monthly income. Thus assessment of yearly pecuniary loss at Rs. 80,000/- is faulty and improper. d) It is pertinent to note that the Respondent No.1 admitted in his cross- examination before the tribunal that he was never financially dependent on the deceased. The Respondent No.1 also admitted having received a lot of benefits and financial gains on account of death of his deceased son. Further the Respondent No.1 is himself earning and drawing a respectable income indicating that no financial loss has been caused to Respondents NO. 1 and 2. e) That the Learned Tribunal materially erred in overlooking that the deceased contributed to the accident. The learned Judge ought to have appreciated that a tort-feasor / his heirs in case of death cannot be allowed to take advantage of his own negligence. f) The findings of the learned Judge in para 29 are perverse and illegal and against the basic principles of law. g) That the Learned Tribunal awarded compensation to the tune of Rs. 5.15,000/- which was disproportionately high. h) That the Learned Tribunal has erred in granting excessive amounts under the heads loss to estate, loss of consortium and loss of love and affection”

11. Being dis-satisfied by the quantum awarded, the Original Claimants have filed First Appeal No.551 of 2006, on following grounds:- (a) The learned Judge by awarding less compensation has conferred undue benefit to the Tortfeasors viz. the Respondents for being rash and negligent while driving and thereby causing death of five innocent persons. (b) The inference drawn and the reasons for disbelieving the oral evidence by the learned Judge itself, being without any justification and reasons, is highly erroneous.

(c) The learned Judge has committed grave error in deducting from gross salary entire deductions and thereafter further reducing the net income by 1/3rd amounting to double deduction.

(d) The learned Judge has erred in ignoring the ratio laid down by Supreme Court as regards future prospects of higher income, stability of employment, qualifications, longevity of life in the family. (e) The learned Judge has committed grave error in equating proceedings under Section 166 of M.V. Act, with that of proceedings under Section 163A, for the purpose of loss of estate and funeral expenses. (f) The impugned Judgment is illegal, unlawful and not in accordance with the settled proposition of law.

SUBMISSIONS OF PARTIES:

12 Ms.Poonam Mittal, made her submissions on behalf of the Appellant – Insurance Company: i). Ms.Mittal submitted that as far as statutory defence of the driving license and breach of policy are concerned, even though the same are taken up in the written statement however she on instructions wants to give up that defence. ii). Ms.Mittal submitted that she has two points of argument, one is of “negligence” and other is “quantum”. iii). Ms.Mittal on the issue of “negligence” submitted that in the written statement of the Insurance Company a specific averment is made in paragraphs 4 and 6 that negligence was on part of the driver of the Maruti Van. She further submitted that as far as negligence is concerned, the Insurance Company has examined the truck driver of the offending truck. So also the photographer, who had clicked the photographs at the site of the accident was examined. iv). Ms.Mittal further submitted that a state transport bus was standing near the site of the accident and Maruti Van over took the standing bus and in the process the offending truck which came from the opposite direction collided with Maruti Van, therefore it was a sheer negligence on the part of the deceased, who was driving Maruti Van due to which there was unfortunate accident. Ms.Mittal further submitted that MACT Court lost site to this important piece of evidence and erred in holding that the negligence was on part of the driver of the offending truck. v). Insofar as issue of quantum is concerned, Ms.Mittal submitted that MACT Court has rightly held that the salary of the deceased as Rs.10,000/- per month, however, MACT Court erred in not considering that Claimant No.1 i.e. the father of the deceased was not at all dependent on the deceased, as he was a retired person and receiving the pension from his employer. Therefore, Claimant No.1 is not entitled to receive any kind of claim in this claim petition. vi). Ms.Mittal further submitted that in so far as “Future Prospect” is concerned, the judgment of the Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & others, reported in (2017) 16 SCC 680 has clarified that after 60 years, the claimants are dis-entitle to receive any kind of claim under the head of “Future Prospect”. Ms.Mittal further submitted that Claimant No.1, the father of the deceased was 60 years of age at the time of unfortunate accident and Claimant No.2, mother of the deceased was 54 years of age at the time of accident. vii). Ms.Mittal further submitted that MACT Court without considering settled position of law and the evidence led in the present proceedings, has arrived to incorrect amount of claim, and the same should be reduced.

13. On the other hand, Mr.Tejpal Ingale made submissions on behalf of Claimants:i). Mr. Ingale submitted that as far as negligence is concerned, the Claimants have very specifically stated in their claim petition and have also led evidence in the form of father of the deceased entering into the witness box and giving his evidence. So also the claimants have relied upon the exhibited documents in the form of FIR, Panchanama, driving license of the deceased and the driving license of the offending truck. ii). Mr.Ingale submitted that evidence of the driver of offending vehicle, itself shows that it was straight road and from the distance of 600 mtr. Driver of the offending vehicle could see the Maruti Van coming from the opposite direction. It is further stated by the driver of offending truck that his speed was around 30 to 35 Km per hour and it is also stated by the driver that road was bigger than the national highway. iii). Mr.Ingale further stated that FIR recorded by the police supports the case of the Claimant. The said FIR also mentions about the statements of one Mr. Ashok Mane, who has narrated to the police that the accident occurred when he was driving his vehicle and according to him, the accident occurred due to the mistake of the offending truck driver. The said Mr.Ashok Mane also stated that there was a bus standing at the relevant time near the spot of accident, at the bus stop. iv). Mr.Ingale further submitted that as far as the quantum is concerned, MACT Court has not followed the principles laid down by the Supreme Court on the issue of calculations to be made for deciding the quantum. v). Mr.Ingale further submitted that the salary certificate of the deceased, who was Captain with Indian Army, was produced on record and duly exhibited. The said certificate clearly showed that the deceased was earning about Rs.25,000/- per month. vi). Mr.Ingale further submitted that the age of the deceased has been duly proved, as the death certificate of the deceased was produced on record and duly exhibited. The Claimants have also produced on record SSC certificate of the deceased which shows that the deceased was 29 years of age at the time of the accident. vii). Mr.Ingale further submitted that the age of the dependent parents and their earnings, has no bearing in law, for calculating the compensation amount. viii). Mr.Ingale further referred to Section 166 of the M.V. Act and the Judgments of the Supreme Court passed in Pranay Sethi (supra) and Manasvi Jain vs. Delhi Transport Corporation, reported in (2014) 13 SCC 22, ix). Mr.Ingale also referred to the findings recorded by MACT Court in favour of the Claimants in its paragraph Nos.16 and 17. x). Mr.Ingale referred to the doctrine of last opportunity to avoid the accident. Mr. Ingale further submitted that as per evidence of the driver of the offending truck that from the distance of 600 Mtr, he has seen Maruti Van coming from the opposite direction, therefore Mr.Ingale submitted that he could have avoided the accident. Mr. Ingale submitted that the driver of the offending truck could have reduced his speed by applying the breaks, of his truck, however, the same was not done. xi). Mr.Ingale submitted that all the persons traveling in the Maruti Van have died except one boy, who was sitting in the dicky of Maruti Van. xii). Mr.Ingale also submitted that the principles of res-ipsaloquitur is applicable in the present proceedings. He submitted that the Claimants can prove the accident but cannot prove how it happened to establish the negligence on the part of the Respondents. This hardship is sought to be avoided by applying the principles of res-ipsa-loquitur. xiii). Mr.Ingale further relied upon the Judgments of Pranay Sethi (supra) and Sarla Varma vs. DTC reported in (2009) 6 SCC 121 to buttress his submissions. xiv). Mr.Ingale further submitted that the amount as calculated by MACT so far as Future Prospects are concerned, the same should have been done as per the ratio laid down in paragraph 59.[3] of the Judgment of Pranay Sethi (supra). xv). Mr.Ingale further submitted that when the income is calculated it always means of receivable minus tax components and if the deceased was permanent employee then the Future Prospects if the deceased is below 30 years would always be 50%. Hence, Mr.Ingale also submitted that multiplier has to be applied based upon for the age of the deceased and not on the basis of the age of the Claimants. xvi). Mr.Ingale submitted that the First Appeal filed by the Insurance Company should be dismissed and the First Appeal filed by the Claimants should be allowed with interest.

ANALYSIS AND CONCLUSIONS:-

14. The impugned award passed by MACT has been challenged by both the parties i.e. the Insurance Company and also by the Claimants.

15. MACT has partly allowed the claim of the Appellants by granting an amount of Rs.5,15,000/-, including the amount of Rs.50,000/- as “no fault liability”, along with with interest @ 9%.p.a. As the issue of statutory defence of breach of policy and not having driving license is given up by the Insurance Company. The issues were answered in favour of the Claimants. A). Rash and Negligent Driving:-

16. As far as rash and negligent driving is concerned, to prove the said fact the Claimants have examined Claimant No.1, who narrated the entire evidence as known to him. The said witness was cross-examined by the Insurance Company. In evidence Claimant No.1, brought on record FIR (Exhibit-29). The said FIR recorded the statement of one Mr. Ashok Mane, who’s vehicle was passing by, had submitted that there was a bus standing on the bus stop near the site of the accident and as the Maruti Van crossed over the standing bus, the offending truck coming from the opposite direction, dashed the Maruti Van. It is further recorded that after the accident, Maruti Van which was going towards north, due to impact turn to south 15 ft. It is further recorded that the size of the road was 34 ft and there were white plates of 5 ft on both the sides. The offending truck which was coming from north to south after the accident had moved towards east by 2 ft. Further Mr.Ashok Mane stated that the accident had occurred due to the negligence of truck driver. The only survivor of the accident Devdatta, also in his statement to the Police, stated that the accident occurred due to the negligence of the offending truck. Further the Claimant No.1 also produced on record Panchanama (Exhibit-30). The said Panchanama recorded that it was the negligence of the offending truck driver, due to which the accident had occurred. The Panchanama also recorded that the head-light the Maruti Van were switch on at the time of accident. The accident had occured at 2 p.m. in the afternoon, as the head-light of the Maruti Van was on, this shows that the deceased had given signal to the

17. The evidence led by the Insurance Company, of the driver of offending truck records that from the distance of 600 Mtr. he could see that Maruti Van was coming from south to north and in a zigzag manner. Further the said evidence recorded that the road was bigger than the national highway. He further stated that the speed of the offending truck was around 30 to 35 km per hour. However, it is seen that there was no statement made in the examination in chief that the driver of the offending vehicle applied breaks so as to make an attempt to slow down or stop the offending vehicle after he saw that Maruti Van is coming towards him in a zigzag manner or gave any kind of signal to the Maruti Van. In the cross-examination the driver of the offending vehicle denied that the bus was standing on the site. So also he denied that Maruti Van over took another Car and dashed the

18. The theory that Maruti Van was coming in zigzag manner is not averred in the written statement. So also the evidence that the bus was standing on the bus stop which was taken up in the written statement was denied in the cross-examination. Therefore there is variance between the pleadings and evidence, of the driver of

19. Witness No.2 of the Insurance Company who had been on the spot to take photographs has clearly stated that when he visited the site, the vehicles were moved away from the spot of the accident to the side of the road as due to accident these was a traffic issue. Hence, I hold that the Insurance Company was not able to prove by leading evidence their case of negligence on part of driver of Maruti Van.

20. Taking into consideration the documents on record in the form of FIR, including the statement of Mr.Ashok Mane, who had witnessed the accident, and the statement of Devdatta recorded by the police, who was sitting in the unfortunate Maruti Van, and this coupled with the fact that the driver of the offending truck in his evidence admitted the fact that it was straight road, and from 600 Mtr. he could see the Maruti Van coming in a zigzag manner, and the road was bigger than the national high, his speed being 30 to 35 Km per hour and driver of offending truck not applying the breaks, is enough to prove that the driver of the offending vehicle was negligent and rash while driving the offending truck.

21. Insofar as the doctrine of last opportunity, Mr.Ingale, relied upon the judgment of the Supreme Court in case of Municipal Corporation of Greater Bombay vs. Laxman Iyer & Ors. reported in (2003) 8 SCC 731. Paragraph 7 of the said Judgment reads as under:-

22. In the present proceedings the driver of the truck has admitted that he had seen Maruti Van from the distance of 600 mtr. and he was driving at a speed of 30 to 35 Km per hour, admittedly he could have applied the breaks to slow down his vehicle and or to stop his vehicle. The width of the road was 34 ft. and there was additional 5 ft. side white plate, therefore there was opportunity for him to slow down and go towards his left and avoid the accident. The offending truck was a big vehicle compared to Maruti Van. Therefore, the degree of precautions and responsibilities was more on the offending truck. This coupled with the fact that the lights of Maruti Van were on, at the time of accident, therefore, the findings recorded in the judgment of the Supreme Court in the case of Laxman Iyer & Ors. (supra) are squarely applicable to the present proceedings and I hold that the driver of the offending vehicle was negligent and rash while driving of the offending vehicle and due to which accident occurred and 5 persons, including the captain Karandikar lost their lives. B). Quantum:-

23. The MACT has granted the total compensation of Rs.5,15,000/- to the claimants in the following manner:a) Salary per month Rs.10,200/-, around up to Rs.10,000/- per month. b). 1/3 personal deduction Therefore, total Rs.3,333/- per month. Rs.6667/- per month. c) Future Prospects was not granted Nil d). Multiplicands: of ‘12’ was applied. Hence Multiplier Rs.6667/- p. m. x 12 months = Rs.80,004/- per year Rs.80,004 x 12 = Rs.9,60,048/-. e). Deduction - payment of Army group insurance fund Rs.4,50,000/-. Therefore, deduction = Rs.9,60,048/- - Rs.4,50,000/- = Rs.5,10,048/f). Loss of estate Rs.2,500/g). Funeral Expenses Rs.2,000/-

24. In the present proceedings, the Claimants have produced on record the last drawn salary certificate of the deceased. The said certificate shows that basic pay of the deceased was Rs.10,200/- and apart from that he was entitled for Rank Pay, Special Dearness Allowance (Spl DA), therefore total sum payable is Rs.15,954/- p.m.

25. It can be seen that the MACT has not taken into consideration the amount under income head viz, Dearness Allowance, provident fund, in the form of DSO fund, (AOB fund) and Spl. Distant Allowance in addition of basic pay, after subtraction amount of Rs.30. Hence Net Salary receivable as last drawn salary to the deceased was Rs.21,054/- p.m.

26. Supreme Court in the case of Manasvi Jain vs. Delhi Transport Corporation Limited, reported in (2014) 13 SCC 22 held in paragraphs Nos. 8 and 9, as under:-

So, from the above table, it is clear that except an amount of Rs.2500 towards income tax, rest of the amounts were voluntarily contributed by the deceased for the welfare of his family. Considering the decision of this Court in Shyamwati Sharma (2010) 12 SCC 378, in our opinion, except contribution towards income fax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take-home salary. Hence, the take-home salary of the deceased comes to Rs 24,450 which can be rounded to Rs 25,000”. [Emphasis Supplied] Therefore, Supreme Court in clear terms in the above Judgment held that deductions towards GPF, LIC, repayment of loan etc. should not be excluded from the income of the deceased while calculating the income.

27. Considering the law as laid down by Supreme Court Manasvi Jain (supra) hence, in the present proceedings I hold that the salary of the deceased was Rs.21,054/- per month. Personal Deductions:-

28. As deceased lost his wife and his only son in the said accident, his only legal heir of his would be original claimants i.e. father and mother. Hence, as per the ratio laid down in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr., reported in (2009) SCC 121, I hold that personal deduction should be at the rate of 1/3. Since the salary of deceased is considered as Rs.21,054/there could be deduction of Rs.7,018/- (1/3). Hence, after deduction the Net salary of the deceased is considered as Rs.14,036/- per month. Future Prospects:

29. The Claimants were able to prove that the deceased was 29 years of age at the time of his death in the accident by producing on record the S.S.C. certificate. The Supreme Court in the Judgment of Pranay Sethi (supra), IN Paragraph 59.[3] held as under “While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case of the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax”. [Emphasis Supplied] Therefore, considering the age of the deceased as 29 years and his salary after deduction as Rs.14,036/- per month, additional 50% increase in the salary on account of Future Prospects comes to Rs.7,018/-. Therefore, the total income of the deceased would be 14,036/- + Rs.7,018= Rs.21,054/- per month. Multiplier:

30. As the salary of the deceased is considered as Rs.21,054/per month. Yearly income would be Rs.21,054 x 12 = Rs.2,52,648/per year. The tribunal has considered multiplier of “12”, based on the age of dependent parents. Supreme Court in case of Sarla Verma (Smt.) & Ors. (supra) has held in paragraph 42 as under: “We, therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas), Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M- 14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years”. (Emphasis supplied) Considering the Multiplier formula laid down by the Supreme Court and considering the age of the deceased as 29 years at the time of his death, he falls under the category of 25 to 30, therefore the multiplier of “17” will be applicable. The amount of Rs.2,52,648/- per year calculated above has to be multiplied by “17”. Hence, the said amount would be Rs.42,95,016/-. Army Group Insurance Fund:-

31. The MACT has deducted sum of Rs.4,50,000/- which was received by the parents of the deceased after the death of their son. The said amount of Rs.4,50,000/- is towards the group insurance fund. In the Judgment of Helen C. Rebello (Mrs.) & Ors. vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90, Supreme Court in paragraphs Nos.32 and 35 held as under.

34. Rs.47,45,016/- + Rs.1,36,800/- = Rs.48,81,816/-.

35. The amount already granted in the award is Rs.5,15,000/which has to be deducted from the above amount of Rs.48,81,816/-. The Tribunal has granted higher rate of interest @ 9% per annum.

36. Thus, I hold that the Claimants are entitled to additional compensation of Rs.43,66,816/- (Rs.48,81,816 minus Rs.5,15,000) along with interest thereon at the rate of 7.5% per annum from the date of filing of the claim petition (i.e. 28 May, 2003) till realization, as per the ratio laid down in the Award dated 28 September 2005.

37. In view of above, appeal of the Claimants i.e. First Appeal No.551 of 2006 stands partly allowed and appeal filed by the Insurance Company i.e. First Appeal No.282 of 2006 is hereby dismissed. There shall be no order as to costs.

38. It is submitted that the Insurance Company has already deposited Award amount in the concerned MACT. If the Claimants have already withdrawn certain amount from the amount deposited, the said amount already withdrawn should be adjusted while allowing the Claimants to withdraw the claim amount as decided by me today. The said amount should be granted as per the ratio laid down in the impugned judgment dated 28 September 2005. (RAJESH S. PATIL, J.)