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High Court of Judicature at Bombay
A.S. OKA & REVATI MOHITE DERE, JJ.
The New India Assurance Co. Ltd.
Versus
Smt. Alpa Rajesh Shah & Others
First Appeal No.848 of 2012 With Cross Objection ST.No.25362 of 2013
Decided On : 19-10-2013
Turning to the facts of the case, the Member of the Tribunal has recorded a finding that for carrying on business of sale of wine or liquor, a licence is required. The Tribunal observed that even the licence has not been produced by the respondent No. 1 to 3. Perusal of the affidavit in lieu of examination-in-chief of the first respondent shows that she has not even stated that the deceased had obtained a licence which was in force up to a particular date. In the cross-examination, she stated that she was not aware where the certificate of shop of the deceased under the Shop and Establishment Act, 1948 and liquor licence were lying. She admitted that at the place where business of M/s. Roshni Wines was being conducted, the brother-in-law of her sister-in-law (wife of the brother of deceased) is carrying on the business sale of dry fruits. The first respondent has not even disclosed the year from which the deceased started business of Roshni Wines. She has not given any particulars as regards the investments made by the deceased, the number of staff members employed by the deceased and the right of the deceased in respect of the premises in which he was carrying on business. There was no evidence adduced as regards the potential to earn more income in future. In absence of any such evidence, it is not possible to consider the future prospects of increase in earnings of the deceased who was self-employed.
Motor Vehicles Act, 1988 - Sections 166 and 168 - Just compensation. - Where deceased, a self-employed person, aged about 31 years and earning Rs. 2 lacs p.a., died in a vehicular accident therefore claimants : three dependants, entitled to total compensation of Rs. 23,16,700/- - Income-tax returns for the period of three years immediately prior to the date of death of the deceased show that the net income of the deceased was Rs. 1,75,739/-, Rs. 2,30,435/- and Rs. 2,10,750/- respectively. The last figure represents income for about 11 months. The income on the date of death will have to be taken into consideration for determination of multiplicand. It is true that for the purpose of calculating multiplicand, income-tax payable on net income has to be deducted. The income-tax paid by the deceased for the assessment year 1999-2000 was Rs. 29,554/- out of which a sum of Rs. 25,000/- was already paid on 15th December, 1998 during the life time of the deceased. After deducting the said amount of Rs. 29,554/- from the income of the deceased of Rs. 2,10,750/- for about 11 months, the net amount comes to Rs. 1,81,196/-. Thus, the net monthly income after deducting income-tax was Rs. 16,472/-. Adding Rs. 16,472/- to Rs. 1,81,196/-, the yearly net income at the time of death of deceased comes to Rs. 1,97,668.00 which can be rounded off to Rs. 2,00,000/-.
The other issue is regarding the number of the dependents on the deceased at the time of his death. In the deposition of the first respondent, she has stated that she herself, her daughter and her mother-in-law were dependents. She has not at all stated that her father-in-law was also depending on the deceased for financial support. Therefore, the counsel for the appellant was right to the extent that the total number of dependents ought to have been taken as three and in terms of the decision of the Apex Court in the case of Sarla Verma, 1/3rd amount ought to have been deducted on account of personal expenditure of the deceased. After deducting 1/3rd amount from Rs. 2,00,000/-, yearly income can be taken at Rs. 1,33,333/-.
Therefore, in the present case, the deceased will fall in the age group of 26 to 30 years. Hence, multiplier of 17 will have to be applied. If multiplier of 17 is applied, total amount comes to Rs. 22,66,661/-. Relying upon the decision of Vimal Kanwar and others, the counsel for the claimant contended that a sum of Rs. 1,00,000/- will have to be granted to the respondent Nos. I to 3 each on account of loss of love and affection. Perusal of the said decision shows that the Apex Court has not laid down as a proposition of law that the children and parents of the deceased are entitled to compensation of Rs. 1,00,000/- each on account of loss of love and affection. It is in the facts of the case before the Apex Court that such amounts have been granted. Court is dealing with the accident of the year 1999. Therefore, amount of Rs. 25,000/- each deserves to be granted on account of funeral expenses and loss of consortium to the respondent Nos. 1. Thus, adding a sum of Rs. 50,000/-, total compensation payable will be Rs. 23,16,661/- which can be rounded off to Rs. 23,16,700/-. The Tribunal has granted interest on the compensation amount at the rate of 7.5% per annum from the date of the claim application till its realization. Court found no-fault with the said part of the impugned Judgment and Award.
A.S. Oka, J.
1. By this appeal, the appellant the New India Assurance Company Limited has taken an exception to the Judgment and Award dated 23rd September 2011 passed by the learned Chairman of the Motor Accident Claims Tribunal, Mumbai in a claim petition filed by the respondents under section 166 of the Motor Vehicles Act, 1988 (for short “the said Act”). The claim for compensation was made on account of death of one Rajesh Shah in a vehicular accident on 18th February 1989. The first respondent is the widow of the deceased Rajesh. The second respondent is the minor son of the deceased Rajesh and the third respondent is the mother of the deceased Rajesh. To the original claim petition, even the father of the deceased Rajesh was made a party who died during the pendency of the claim petition. Thereafter, his name has been deleted.
2. The case made out in the claim petition was that on 18th February 1999, the deceased Rajesh was proceeding by a car on Mumbai Pune highway. The accident occurred at about 9.00 p.m close to Balewadi stadium near Pune. At that time, a motor tanker came from the opposite direction. The motor tanker was admittedly owned by the fourth respondent which was admittedly insured with the appellant on the date of accident. The tanker gave a dash to the car by which the deceased was travelling. It is alleged that the accident occurred due to rash and negligent driving of the tanker by its driver. As a result of the injuries sustained in the accident, Rajesh died.
3. Though the claim petition was not contested by the fourth respondent, after obtaining a leave under section 170 of the said Act, the appellant contested the claim. The Tribunal held that the accident occurred due to rash and negligent driving on the part of the driver of the tanker. The Tribunal proceeded to grant compensation of Rs.21,90,000/- with interest thereon at the rate of 7.5% per annum from the date of filing of the claim petition. First to third respondents claimed compensation of Rs.1 crore. Cross objection Stamp No.25362 of 2013 has been filed by the first to third respondents claiming additional compensation of Rs.30,00,000/-.
4. The learned counsel for the appellant urged that it was a case of head on collision and therefore, even the driver of the car had contributed to the accident. He urged that the Tribunal ought to have held that the liability of both the vehicles was equal. He submitted that the income taken by the Tribunal for the purposes of calculating multiplicand is on the higher side. He urged that even in the deposition of the first respondent, she did not state that the father of the deceased was financially dependent on the deceased. He, therefore, urged that there were only three dependents viz; widow, son and mother of the deceased. He, therefore, urged that the Tribunal committed an error by deducting only ¼ income of the deceased on account of personal expenditure of the deceased and that the deduction ought to have been 1/3. He submitted that the age of the deceased on the date of accident was more than 30 but less than 31. Relying upon the decision of the Apex Court in case of Sarla Verma and others vs. Delhi Transport Corporation (2009 (6) SCC 121), he submitted that the multiplier of 16 ought to have been applied which is applicable to the age group of 31 to 35 years. He urged that the compensation granted is exorbitant.
5. The learned counsel for the respondent Nos.1 to 3 submitted that as the deceased had not completed age of 31 years, multiplier of 17 has been rightly applied as per the decision of the Apex Court in case of Sarla Verma. He urged that in the claim application it is stated that even the father of the deceased was dependent on the deceased. He urged that merely because the father died during the pendency of the claim application, his dependency cannot be ignored. He urged that in the income tax returns for the Assessment years 1997-1998 to 1999-2000 show that there was a steady in
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