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CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 2363 OF 2005
1. Deenbandhu Singh Shivsaran Singh, aged about 53 years, 2. Smt. Muglawati Deenbandhu Singh, aged about 50 years, residing at R.M. Road, Oshwara, Jogeshwari (West) Mumbai.
C/o. No.2/8 Shivsharan Singh
(Ram naresh), Chawl, Mumbai-400102. ...APPELLANTS
2. The New India Assurance Co. ltd., having their registered office at New India
Assurance Building, Fort, Mumbai.
Ahmednagar V/T 25/09/98. ...RESPONDENTS
Mr. T.J. Mendon, Advocate for the Appellants.
Mr. Shubham Misar, Advocate for the Respondent No.2.
JUDGMENT
1. This appeal has been filed by parents of the deceased, who, died in motor vehicle accident on 2nd May, 1998. KSG/AVK 1/27
2. Earlier the appellants had filed claim application under Section 166 of the Motor Vehicles Act, 1988 seeking a compensation of Rs.10,00,000/-. However, the Motor Accident Claims Tribunal, Mumbai (the “MACT, Mumbai”) only partly allowed the claim holding that the appellants were entitled to recover and get Rs.2,00,000/- inclusive of the No Fault Liability amount of Rs. 50,000/- together with interest @ 7.5% p.a from November, 2003 till realization. Aggrieved by the same this appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 ( the “MV Act”).
3. The brief facts are that the son of the appellants, who was studying M.B.A course at Lonir, Dist. Ahmednagar and had completed first year of M.B.A. course, on 2nd May, 1998, while he was coming home in an auto rickshaw along with his friend met with an accident in which he sustained serious injuries. Sujeet Singh, son of the Appellants, was traveling in auto-rickshaw No. MH-16-B-2112 belonging to Respondent No. 1 and insured with Respondent No. 2 when the said auto-rickshaw in which Sujeet was travelling while passing in front of Advani Company met with an accident and turned turtle due to rash and negligent driving of auto-rickshaw driver. Due to the said accident Sujeet Singh sustained very serious injuries, was taken to a hospital at KSG/AVK 2/27 Ahmednagar and thereafter brought to K.E.M Hospital, Mumbai but unfortunately he died at the K.E.M Hospital on 25th May, 1998 as a result of the injuries. The matter was reported to the police and a case was filed against the auto-rickshaw driver. It was contended that the deceased had a bright career and after completing the M.B.A. course would have earned easily Rs.3,00,000/- to Rs.4,00,000/- per year and that his age was 22 years and the claim for compensation of Rs.10,00,000/- was justified.
4. It is submitted that inspite of due and proper service, owner of the auto rickshaw being Respondent No.1 herein, remained absent and the claim before the Tribunal went ex-parte against him. The Insurance Company being Respondent No.2 herein, had filed written statement before the Tribunal and objected to the claim and denied the liability.
5. The Tribunal considered the evidence of Appellant No.1, who is the father of the deceased and the claimant’s witness Pramol Saxena, who was with the deceased at the time of accident being eye-witness, documentary evidence such as FIR, spot panchnama, post-mortem notes, cause of death certificate and observed that the negligence of the driver in the motor vehicle accident was established and proved. KSG/AVK 3/27
6. With respect to the evidence regarding the income and future expected earnings of the deceased, the Tribunal despite the evidence that the deceased was a bright student and could have reached the post of Executive and despite the evidence on record in the shape of the witness Nitin Singh about the fact that he was M.B.A from Banaras Hindu University and got the appointment as Senior Officer with a monthly salary of Rs.15,200/- and observing that, there was no evidence to the fact that the deceased was the only son of the applicants and that the father of the deceased was working as Senior Pharmacist in K.E.M Hospital, Mumbai, which aspect would have to be considered while ascertaining the dependency and future loss caused to the Appellants and considering the uncertainty of life and the then condition for getting jobs and the saturation in the certain filed, held that the say of the claimant that the deceased would have earned Rs.15,000/- per month cannot be the basis to come to the conclusion about the dependency of the appellants. Further, observing that there was no evidence to establish that the deceased was the only son, on the basis of the submission on behalf of the Insurance Company that there was no question of applying any particular multiplier and there was no expected future income of the deceased, the Tribunal denied the claim that the deceased would have been in a position to earn ample amount KSG/AVK 4/27 of pay in a month and that the appellants would be entitled to claim of Rs.10,00,000/- as compensation. The Tribunal observed that the deceased was unmarried and considering future uncertainty of life and age of the appellants and the fact that the deceased had not completed his M.B.A course held that there was no question of considering any specific monthly income of the deceased and the future loss caused to the appellants. The Tribunal concluded that since the appellants, who, at the time of filing the claim petition were of 53 to 50 years of the age and having lost their son who was 22 years taking education in M.B.A course, instead of applying any particular multiplier, and the expected income, it would be just and proper to award lump sum compensation of Rs.2,00,000/- including the No Fault Liability. The Tribunal went on to add that even-though the Appellants had lost their young son, the young son having a bright career could not be expected to support them after his marriage even if he would have survived. The Tribunal has held the owner of the vehicle as well as Insurance Company jointly and severally liable to pay the compensation to the Appellants as well as interest @ 7.5% p.a. from November-2003.
7. I have heard Mr. Mendon, learned Counsel for the Appellants and Mr. Misar, learned Counsel for Respondent No.2 and with their KSG/AVK 5/27 able assistance. I have perused the records and papers and considered the rival contentions.
8. Mr. Mendon, learned Counsel for the appellant would submit that, the Appeal has been filed by the parents of the deceased for enhancement of compensation. Learned Counsel would submit that the Tribunal failed to appreciate that the deceased was a bright student and was enterprising and could have earned substantially as done by his classmates in the same category had he lived. Drawing the attention of this Court to the record and proceedings, Mr. Mendon, would refer to the deposition witness of PW-3 viz, Mr. Nitin Singh, who passed the MBA examination from Banaras Hindu University in the year 2000 and got appointment as senior officer in Indorama Synthetics India Limited at Bombay, got a monthly salary of Rs. 15,200/- at the initial stage and also produced the appointment letter. It can be seen from the said deposition that Mr. Nitin Singh was the nephew of the deceased and passed out the MBA around the same time as the deceased would have passed out i.e. in the year 2000. It is also observed from the deposition that the salary of Mr.Nitin Singh was revisable every year and his salary at the time of giving evidence was KSG/AVK 6/27 Rs. 17,200/-. Referring to this evidence Mr. Mendon would submit that the Tribunal ought to have considered this evidence and at least could have considered Rs.15,200/- as the deceased’s potential earning capacity. In support, Mr. Mendon relies upon the decisions of the Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Deo Patodi and Ors.[1] and also the decision in the case of S. Vasanti and another Vs. Adhiparasakthi Engineering College and another[2] in support of his contentions and submits that the income of the similarly placed persons as the deceased ought to be considered by the Tribunal while determining deceased potential earning capacity.
9. Learned Counsel for the Appellants would further submit that the compensation is required to be calculated considering the age of the deceased. He would submit that the Tribunal has grossly erred in ignoring that the deceased was 22 years of age and had a bright career. Learned Counsel refers to the decision of the Hon’ble Supreme Court in the case of Sarla Verma & Ors Vs. Delhi Transport Corporation and Anr.[3] and in particular to paragraph 18 of the said decision to emphasise this point. He further refers to paragraph 42 of the said decision and 1 2009 ACJ 2359 2 2023 ACJ 100
KSG/AVK 7/27 submits that considering the age of the deceased the operative multiplier would be 18, which would need to be considered for computing the compensation. Learned Counsel also refers to the constitution Bench’s decision of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs. National Insurance Company Limited Vs. Pranay Sethi and Ors.(supra) and in particular to paragraph 61 of the judgment to submit that as declared by the Hon’ble Supreme Court multiplier has to be applied as per the age of the deceased and accordingly the compensation has to be worked out.
10. Learned Counsel further submits that it is the mandate of Section 168 that compensation is required to be determined by the Tribunal or the Court which is just reasonable and proper. Learned Counsel submits that there is no embargo or restriction on the powers of the Tribunal or the Court to grant an amount more than the amount claimed. Learned Counsel relies upon the decision of the Hon’ble Supreme Court in the case of A. P. S.R.T.C Vs. M. Ramadevi and Ors.4. Learned Counsel also refers to the case of Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmedabad in support of his contentions.
11. Learned Counsel for the Appellants submits that since it has been proved that the deceased classmate had received an income of Rs. 15,200/- per month, the same can be considered as the minim. Learned Counsel has submitted the following calculation for computation of the compensation that the Appellants claimed aught to be awarded to them:- “Age of deceased 22 years Income per month Rs. 17,200.00 uture Prospect 40% Rs. 6,080.00 Rs. 21,280.00 Claimants are in Numbers Personal Expenses ½ Rs. 10,640.00 Dependency Multiplier for age 22 is 18 Calculation of Compensation (10,640 X 12 X 13)= Rs.22,98,240.00 Loss OF Consortium Rs.40,000/- with 10% increase for every 3 years for 4 claimants Rs. 88,000.00 Funeral Expenses 15000/- with 10% Increase for every 3 years Rs. 20,000.00 Loss of Estate Rs. 15,000/- with 10% increase for every 3 years. Rs. 20,000.00 Rs.24,26,260.00”
12. With respect to the interest to be awarded to the Appellants, learned Counsel draws the attention of this Court to Section 171 of the MV Act and submits that simple interest at the rate from the date of making the claim should be awarded to the Appellants and not what KSG/AVK 9/27 the Tribunal has done. Learned Counsel submits that the claimants would be entitled to received compensation as calculated above along with interest at least at the rate of 9% p.a from the date of application till realisation of the compensation and not from November 2003.
13. On the other hand, although Mr.Misar does not dispute that rash and negligent driving of the driver of the said auto rickshaw led to the death of Mr.Sujeet Singh, however, with respect to quantum, learned Counsel would submit that since the deceased was a student who had not completed his course, no income can be anticipated, and therefore, the Tribunal did not consider the claim of the Appellants as proposed.
14. There is no dispute that the deceased was traveling in the autorickshaw, which met with an accident, which was caused due to the negligence of the driver of the auto rickshaw. There is also an eye witness to the same. The only issue that arises is with respect to quantum of compensation and primarily with respect to the income of the deceased. There is no dispute that the deceased was 22 years old and had completed the first year of the MBA course. The evidence of Mr. Nitin Singh, is not in dispute. He was a colleague and nephew of KSG/AVK 10/27 the deceased in the MBA course at Banaras Hindu University, got an appointment letter as senior officer in Indorama Synthetics India Limited at a monthly salary of Rs.15,200/- which was revisable upwards. This evidence has neither been disputed nor been controverted on behalf of the insurance company. Respondent No.1 though served is neither represented nor is present. It is gathered from the Tribunal order that even before the Tribunal the Respondent No.1owner of the vehicle was not represented and the matter was heard exparte against him. Despite clear and uncontroverted evidence that Mr. Nitin Singh was appointed at a salary of Rs. 15,200/-, the Tribunal has completely ignored the same on the ground that there was no evidence to the fact that the deceased was the only son of the Applicants. In my view, the Tribunal has grossly erred in failing to consider this vital evidence for deciding the compensation that would be payable to the Appellants. The Tribunal has completely misdirected itself towards considerations such as uncertainty of life, the condition of getting jobs and saturation in the field for none of which the Tribunal has cited any instances or adduced any evidence to reject the claim of the Appellants. Also, despite the clear mandate of the Hon’ble Supreme Court in the case of Sarla Verma & Ors Vs. Delhi Transport Corporation and Anr. (supra) and National Insurance Company Limited Vs. Pranay Sethi and KSG/AVK 11/27 Ors.(supra), as will be elucidated later, the Tribunal has failed to apply multiplier considering the age of the deceased and has on irrelevant considerations ordered a lump sum compensation of Rs. 2,00,000/-.
15. There is no dispute that the Appellants are the legal representatives of the deceased and as such entitled to be awarded compensation under the MV Act. The Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Deo Patodi and Ors. (supra) and also in the case of S. Vasanti and another Vs. Adhiparasakthi Engineering College and another(supra) has clearly observed that when the deceased or his classmates who had been pursuing the same education and started earning then the income that they earned at the time of appointment can be considered as the income of the deceased. Paragraphs 10 and 11 of the decision in the case of S. Vasanti and another Vs. Adhiparasakthi Engineering College and another(supra) is usefully quoted as under:-
16. In this view of the matter, the PW-3 viz. Mr. Nitin Singh having been examined and having stated that after completing MBA, he was recruited as a senior officer at Indorama Synthetics India Ltd and was appointed on a salary of Rs. 15,200/- per month, in my view Rs.15,200/- ought to have been considered as the income of the deceased.
17. Further, it would also be pertinent to refer the Section 168 of the MV Act, which mandates that the amount of compensation that should be determined should be just. Section 168 of the M. V. Act is quoted as under: KSG/AVK 13/27
17. A Also in this regard the decision of the Hon’ble Supreme Court in the case of A. P. S. R. T. C. vs. M. Ramadevi and Ors. (supra) is also pertinent. Paragraphs 8 and 9 are usefully quoted as under:-
18. Further the decision in the case of Sanobanu Nazirbhai Mirza & Ors. vs. Ahmedabad Municipal Transport Service (supra) is also relevant. Paragraphs 8 and 9 whereof are usefully quoted as under:-
┌────────────────────────────────────────────────────────────────────────────────┐ │ Sl.No. Heads Calculations │ │ (i) Income Rs.5,000 p.m. │ │ (ii) 50 percent of above to be Rs.7,500 p.m. │ │ added as future prospects │ │ [Rs.5,000 + Rs.2,500] │ │ (iii) 1/5th of (ii) to be deducted as Rs.6,000 p.m. │ │ per personal expenses of the │ │ deceased [Rs.7,500 – │ │ Rs.1,500] │ │ (iv) Compensation after multiplier Rs. 14,40,000 │ │ of 20 is applied [Rs.6,000 x 12 │ │ x 20] │ │ KSG/AVK 16/27 │ │ 1-FA-2363-2005.doc │ │ (v) Loss of consortium Rs. 1,00,000 │ │ (vi) Loss of care and guidance for Rs. 1,00,000 │ │ minor children │ │ (vii) Funeral and obsequies Rs. 25,000 │ │ expenses │ │ (viii) Pain, loss and suffering Rs. 25,000 │ │ (ix) Medical expenses Rs. 3,000 │ │ (x) Attendant charges and Rs. 3,000 │ │ transportation expenses │ │ Total compensation awarded Rs.16,96,000 │ │ The amount of Rs.16,96,000/-as calculated above, │ │ under the various heads of losses, should be awarded in │ │ favour of appellants-claimants, though there is no │ │ specific mention regarding enhancing of compensation │ │ as in the appeal it has been basically requested by the │ │ appellants to set aside the judgment and order passed │ │ by the High Court in the appeal filed by the respondent. │ │ We must follow the legal principles of Nagappa Vs. │ │ Gurudayal Singh & Ors. 2003 ACJ 12 (SC) at para 7, │ │ wherein with respect to the provisions of the M.V. Act, │ │ this Court has observed as under: │ │ “(7) .....There is no restriction that compensation could │ │ be awarded only up to the amount claimed by the │ │ claimant. In an appropriate case, where from the │ │ evidence brought on record if the Tribunal/court │ │ considers that the claimant is entitled to get more │ │ compensation than claimed, the Tribunal may pass such │ │ award. The only embargo is — it should be “just” │ │ compensation, that is to say, it should be neither │ │ arbitrary, fanciful nor unjustifiable from the evidence. │ │ This would be clear by reference to the relevant │ │ provisions of the MV Act. Section 166 provides that an │ │ application for compensation arising out of an accident │ │ involving the death of, or bodily injury to, persons │ │ arising out of the use of motor vehicles, or damages to │ │ any property of a third party so arising, or both, could │ │ KSG/AVK 17/27 │ │ 1-FA-2363-2005.doc │ │ be made (a) by the person who has sustained the injury; │ │ or (b) by the owner of the property; or (c) where death │ │ has resulted from the accident, by all or any of the legal │ │ representatives of the deceased; or (d) by any agent │ │ duly authorised by the person injured or all or any of │ │ the legal representatives of the deceased, as the case │ │ may be.” │ └────────────────────────────────────────────────────────────────────────────────┘
care and guidance for minor children
(vii) Funeral and obsequies expenses
(viii) Pain, loss and suffering Rs. 25,000
(ix) Medical expenses Rs. 3,000
(x) Attendant charges and transportation expenses
Rs. 3,000 Total compensation awarded Rs.16,96,000 The amount of Rs.16,96,000/-as calculated above, under the various heads of losses, should be awarded in favour of appellants-claimants, though there is no specific mention regarding enhancing of compensation as in the appeal it has been basically requested by the appellants to set aside the judgment and order passed by the High Court in the appeal filed by the respondent. We must follow the legal principles of Nagappa Vs. Gurudayal Singh & Ors. 2003 ACJ 12 (SC) at para 7, wherein with respect to the provisions of the M.V. Act, this Court has observed as under: “(7).....There is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is — it should be “just” compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could KSG/AVK 17/27 be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.”
9. In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants.”
19. Therefore, in my view, there is no embargo or restriction on this Court to grant more than the amount claimed by the Appellants and that just, reasonable and proper compensation is to be awarded. KSG/AVK 18/27
20. The Hon’ble Supreme Court in the case of Sarla Verma & Ors Vs. Delhi Transport Corporation and Anr. (supra) has held that the compensation is required to be calculated considering the age of the deceased. Paragraph 18 of the said decision is usefully quoted as under:-
21. Therefore, it is clear from the above that the compensation is to be decided on the basis of the age of the deceased, the income of the deceased and the number of dependents and the loss of dependency is to be determined on the basis of the additional deductions to be made for arriving at the income, the deduction to be made towards the KSG/AVK 19/27 personal living expenses of the deceased and the multiplier to be applied with reference to the age of the deceased. Paragraph 42 of the decision in the case of Sarla Verma & Ors Vs. Delhi Transport Corporation and Anr.(supra) which refers to the application of multiplier that is to be used is usefully quoted as under:-
22. The aforesaid has been confirmed by the constitution Bench of the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors.(supra). Paragraph 61 of the said decision is usefully quoted as under:-
23. It is therefore, quite clear that multiplier has to be applied and that too to compute the compensation as per the age of the deceased.
24. Mr.Misar, learned Counsel for Respondent No.2-Insurance Company has also tendered the calculations on behalf of the Insurance Company. Learned Counsel would submit that as far as the submissions on behalf of the Appellant-Claimant with respect to the working of the compensation are concerned, except with respect to the heads pertaining to “Loss of Estate” and “Funeral Expenses”, the Insurance Company should not have any particular objection. However, with respect to those two heads, learned Counsel would submit that the computation of loss of estate should be Rs. 16,500/-, and funeral expenses should be Rs. 16,500/-, on the basis of the decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors.[6] Learned counsel would therefore, submit that the amounts of Rs. 20,000/- each as proposed against the aforesaid two heads may not be appropriate.
25. Mr. Mendon, learned Counsel for the Appellant strongly opposes the submission and submits that the same is not in line with the 6 2017 ACJ 2700 KSG/AVK 22/27 decision in the case of N. Jayasree and Others Vs. Cholamandalam MS General Ins. Co. Ltd.7.
26. I have perused the decision of the Hon’ble Supreme Court in the case of N. Jayasree and others (supra). Paragraphs No. 34 and 35 of the said decision are usefully quoted as under:- “34. A three-Judge Bench of this court in United India Insurance Co. Ltd v. Satinder Kaur, 2020 ACJ 2131 (SC), after considering Pranay Sethi, has awarded loss of spousal consortium at the rate of Rs.40,000 and loss of parental consortium to each child at the rate of Rs.40,000/-. The compensation under these heads also needs to be increased by 10 per cent. Thus, loss of spousal consortium is awarded at Rs.44,000, and loss of parental consortium is awarded to the two children at the rate of Rs.44,000 each; total: Rs.88,000.
35. Thus, the appellants are entitled to compensation as under:
(i) Towards loss of dependency Rs. 84,16,815
(ii) Loss of estate Rs. 16,500
(iii) Funeral expenses Rs. 16,500
(iv) Loss of spousal consortium Rs. 44,000
(v) Loss of parental consortium Rs. 88,000