Back
2011 Supreme(Bom) 1140
2011(6) ALL MR 641
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
R. P. SONDURBALDOTA, J.
Oriental Insurance Co. Ltd.
Versus
Shri Madhavrao Dattajirao Prabhu Dessai (Since deceased) through his L.Rs.
First Appeal No.144 of 2005
Decided on: 23rd September, 2011.
Shri EMERICO AFONSO, Adv. for the Appellant.
Shri V. PANGAM, Advocate for Respondent No.2.
Headnote:Motor Vehicles Act, 1988 - Section 163-Claim of compensation-Computation of compensation-Vehicle registered in name of father of deceased-Vehicle continue to be source of income for claimants-Income from private vehicle cannot be taken into accounts for computation of compensation under Section 163 of Act.-Evidence brought on record by the claimants substantiate their claim that Sandesh was carrying on business of grocery items in this way. The evidence names at least forty customers of Sandesh. In the circumstances, find no difficulty in accepting the claim of original respondent No. 1 and respondent No. 2 that Sandesh had about fifty fixed customers. The evidence of these three witnesses shows that the expenses incurred by them on purchase of grocery items from Sandesh ranged between Rs. 6,000/- to Rs. 10,000/-. There is no evidence before the Court as regards the extent of expenses of the remaining large number of customers. Therefore, the Court will have to resort to some assumption as regards the expenses. In Court’s opinion, even if an extremely conservative view is to be taken, the expenses of each family over purchase of grocery items per month at the relevant time, i.e. in the year 2002 would be of Rs. 4,000/-. With this, the monthly turnover of Sandesh would be of Rs. 2.00 lakhs (Rupees two lakhs only). As per the claim petition, Sandesh had profit margin of 10% on the turnover. It would be difficult to accept this claim without any evidence in support. However, according to margin of at least 5% would have to be taken as the profit margin of Sandesh. This is again extremely conservative view. With this, the monthly income of Sandesh from this business can be taken as Rs. 10,000/- (Rupees ten thousand only) and his annual income of Rs. 1,20,000/- (Rupees one lakh twenty thousand only).
Motor Vehicles Act, 1988 - Section 163-Claim of compensation-Determination of-Deduction towards Personal Expenses of deceased-Principle for-Claimants; parents of deceased-Deceased was bachelor-Deduction attracts different principle-Normally, deduction of 50% applied.-In view of the decision of the Supreme Court, the submission made by Mr. Afonso that the deduction for personal expenses ought to have been of 50% must be accepted. It has been sought to be argued on behalf of the respondents that Sandesh was residing along with his parents and also having food with them. Therefore, his personal expenses were far less than one-third. This argument is required to be rejected since it is not the savings made by the deceased which are to be taken into account, but the contributions to the family made by him. Further if this argument of the respondent is to be accepted, the contribution of Sandesh to the family would be far lesser leading to further deduction.
Motor Vehicles Act, 1988 - Section 163-Claim of compensation-Determination of-Income from supply of grocery items-Compensation of-From evidence on record, monthly income of deceased taken at Rs. 10,000/--Deceased was bachelor-Deduction of 50% made towards personal expenses of deceased-Multiplier of 11 adopted -Claimant entitled to total compensation of Rs. 6,67,000/-.-The Tribunal had initially adopted multiplier of 8 which was increased to 11 by the order on the review application. This, increase is sought to be challenged by Mr. Afonso. However, since the order of review application records that the appellants had given a concession on the argument of increase of the multiplier. Not inclined to disturb the same. With the multiplier of 11, the amount of compensation payable to the respondents would be Rs. 6,60,000/- (Rupees six lakhs sixty thousand only). With the additions of Rs. 5,000/- (Rupees five thousand only) towards pain, shock and suffering and Rs. 2,000/- (Rupees two thousand only) towards funeral expenses awarded by the Tribunal, the total compensation payable to the respondents would be Rs. 6,67,000/- (Rupees six lakhs sixty-seven thousand only). There will be no change in the interest awarded by the Tribunal as the same is found reasonable.
MOTOR VEHICLES ACT, 1988 - Section 168 - Just compensation. Since income earned while committing offence cannot be aid to be legal income hence such income cannot be taken into consideration for determining just compensation in an accident claim.
This appeal by the Insurance Company takes exception to quantum of compensation awarded by the Motor Accident Claims Tribunal, Mapusa to original respondent no. 1 and respondent no.2 who were the original claimants. Respondent No.3 is the driver of the offending vehicle and respondent no.4 is the owner. During the pendency of the appeal proceedings, original respondent no. 1 died and his heirs have been brought on record. The appellant is the insurer of the offending vehicle.
2. One Sandesh, son of original respondent no. 1 and respondent no.2 died in an accident on 14-9-2000 involving the bus belonging to respondent no.4. He being a bachelor, his parents, original respondent no. 1 and respondent no.2 filed petition claiming compensation of Rs.20,00,000/- on account of his death. The petition was contested by the appellant alone on all defences available to the insurer as well as the insured after obtaining leave under Section 170 of the Motor Vehicles Act. The Tribunal on appreciation of evidence before it, by its Judgment and Order dated 3-1-2004 awarded compensation of Rs.6,00,000/- with interest at the rate of 9% per annum from the date of the petition till payment. While assessing the quantum of compensation the Tribunal had applied multiplier of 8. Thereafter, original respondent no. 1 and respondent no.2 filed an application for review contending, inter alia, that the multiplier adopted by the Tribunal was not correct. The Tribunal allowed the application by its Order dated 22-3-2005 and recomputed the compensation by adopting multiplier of 11 and awarded total compensation of Rs.7,99,000/-.
3. Since the appellant does not dispute the occurrence of the accident, involvement of the bus belonging to respondent no.4 and the negligence on the part of respondent No.3 in driving the bus, no reference need be made to the pleadings and the evidence on the issues relating thereto.
4. As per the claim petition, earnings of Sandesh came from three sources. The first source of income was by hiring out a jeep to Sesa Goa Limited, The second source of income was by carrying on the business of Kirana and grocery in a novel way. He used to market the essential commodities on monthly basis by door to door delivery to fixed customers belonging to middle class and upper middle class. He had about 50 such fixed customers who were purchasing from him materials worth Rs.2,500/- per month on an average. Thus, he was getting turnover of Rs.1,25,000/- per month yielding profit of Rs.12,500/- per month at the rate of 10% of the turnover. The third source was the income from retail Kirana shop by name Dattakripa. The claimants contended that Sandesh was proposing to open a Spare parts shop and was planning to enter into Tourist and Travels business along with his friends. He had also promoted the idea for his friends of "Grow along with others" wherein everyone was to contribute to the capital according to the capacity and also employ themselves in the business.
5. There were in all 8 witnesses examined by the claimants in support of the claim made in the petition. They are AW1, the father of Sandesh, AW2, AW3, AW 4 and AW 5. The customers of Sandesh in his grocery business carried on from door to door. AW6 a passenger in the bus. AW7, General Manager of Sesa Goa Limited and AW8 an Officer of Sesa Goa Limited.
6. Mr. Afonso, the learned counsel for the appellant submits that assessment of compensation by the Tribunal is not in accordance with law and the established principles. The same is therefore, required to be revised. According to him, the income from the first source and the third source cannot be taken into account at all and as regards the income from the second source the evidence to substantiate the claim is not satisfactory.
7. The objection by Mr. Afonso to the income from the first source is threefold. Firstly, that the income is illegal. Secondly that the income was not of Sandesh and thirdly that the source of income was still a
