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High Court of Judicature at Bombay
A.P. BHANGALE, J.
Smt Darshana Ganesh Kanavaje & Others
Versus
Maharashtra State Road Transport Corporation & Others
First Appeal No.535 of 2013
Decided On : 24-10-2013
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference of the age of the deceased. Tribunals should determine compensation in cases of death, by the following well-settled steps, viz.
Step 1 (Ascertaining the multiplicand); Step 2 (Ascertaining the multiplier) and Step 3 (Actual calculation). Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the Courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. 2009 (4) All MR 429 (SC) - Rel. on.
Motor Vehicles Act, 1988 - Sections 166 and 168 - Claim of compensation. - Where deceased aged 35 years was running grocery shop and survived by 6 dependants therefore average income must be arrived at after deduction of 1/4th amount of personal expenses instead of 1/3rd. - It is unrealistic to urge for more deduction towards personal expenses on the pretext that the dependants of the deceased may be able to earn on their own by starting the grocery shop or otherwise. It must be borne in mind the possibility that there may be likely addition of income amount by way of future prospects and converse probability of business of the grocery articles to be continued by or on behalf of the dependants, though no such evidence is brought on the record, the reasonable and just compensation must be computed in the case in hand. Annual average income of the deceased Ganesh must be arrived at after deduction of 1/4th amount of personal expenses.
In addition, sum of Rs. 100,000/- must be added as loss of consortium for widow of the deceased and Rs. 100,000/- ought to be reasonably granted by way of compensation towards loss of love and affection for the family members of the victim and sum of Rs. 100,000/- for loss or deprivation of father’s guidance for future and better educational career for minor children and the sum of Rs. 10,000/- spent towards funeral expenses and transport expenses. Court can thus arrive at just, fair and reasonable compensation in the sum of Rs. 13,90,000/- inclusive of no-fault liability, with reasonable interest @7.50% p.a. on the unpaid amount from the date of the claim application till the amount is deposited by the MSRTC/owner of the offending vehicle. The balance of remaining amount unpaid would carry reasonable interest at the rate of Rs. 7.50% per annum till full realization thereof. Before parting with the order it is desirable to mention that the portion of the capitalized compensation ought to be invested in such manner in the valuable security such as fixed deposit in any nationalized Bank so as to fetch regular recurrent income for the subsistence of the aged and poor, needy claimants in the case to meet any exigency in the family, if occurs. Compensation amount need to be enhanced and granted accordingly by modifying the impugned award.
1. Heard submissions at the Bar. The appeal is preferred against the Judgment and Award dated 6th May 2010 passed by Learned Chairman, Motor accident Claim Tribunal, Ratnagiri in MACP No.43 of 2008 whereby the Tribunal was pleased to award compensation in the sum of Rs 8,80,000/- only inclusive of no fault liability. The facts are:-
2. On 09-04-2008, Ganesh Manohar Kanavaje Aged 35 years was proceeding to his home at Lanja by Santro Car registration no. MH-08-C-6832, travelling with his friends. Shri Vijay Chavan was driving the car. S.T Bus bearing registration no. MH-12-CH-8684 came from the opposite direction while driven rashly, and negligently and dashed the said car. Ganesh died on the spot as result of the fatal accident. Tribunal held that accident happened as a result of sole negligence of the Driver of the offending S. T. Bus which had entered from the wrong side and gave dash to the car. Plea of contributory negligence raised on behalf of the MSRTC was found unacceptable and was rejected by the Tribunal.
3. Ganesh was running a Grocery shop at Lanja and was a regular Income Tax payer. His income was gradually increasing as deposed by Ramakant Pathare, Tax consultant for the deceased victim Ganesh. Income Tax returns for previous four years 2004-05 to 2007-08 were produced indicating annual income of the victim as Rs.82,884/-, Rs.86,360, Rs.98,750/- and Rs.1,12,926/- respectively. Average annual income of the victim Ganesh, thus was calculable at Rs 90,000/- per year.
4. I have considered the rival submissions at the bar in the light of rulings cited before me in SarlaVerma & Ors. V/s Delhi Transport Corporation & Anr. Reported in AIR 2009 Supreme Court 3104 as also ruling relied upon in SantoshDevi V/s NationalInsurance Company Limited and Others, reported in (2012) 6 Supreme Court Cases 421. The ruling in Rajesh and others V/s Rajbir Singh and others, by three Judges’ Bench of the Apex Court, reported in 2013 ACJ 1403 , New India Assurance Co. Ltd Vs. Gopali & others reported in ( 2012) 12 SCC 198.
5. The Apex Court in Gopali’s case considering the facts and circumstances of that case observed regarding deduction made towards personal expenditure as under:-
“Here, we are dealing with a case in which the deceased had 8 dependents including four sons and one daughter. The question which arises for our consideration is whether in 1992 a person having an income of less than Rs.3,000/-and a family of 9 could think of spending 1/3rd of his income on himself. On a conservative estimate, it is possible to say, he would have spent at least 50% of the income on the purchase of foodgrains, milk, etc., and for payment of water, electricity and other bills. 25% of the income would have been spent on the education of children which would have included school/college fee, cost of books, etc. 15% of the income would have been used for meeting other family necessities, like, clothes, medical expenses, etc. He would have then been left with 10% of his income, a portion of which could be used to meet unforeseen contingencies and on the occasion of festivals. In this scenario, any deduction towards personal expenses would be unrealistic. In any case, where the family of the deceased comprised of 5 persons or more having an income of Rs.3,000/- to Rs.5,000/-, it is virtually impossible for him to spend more than 1/10th of the total income upon himself. What we have observed hereinabove may not apply to rich people living in urban areas who can afford to spend a substantial amount of their income in clubs, hotels and on drinks parties. In those cases, there may be a semblance of justification in applying the rule of 1/3rd deduction but it would be wholly unrealistic to universally apply that rule in all cases.”
6. The observations to uphold 10% deduction towards personal expenditure were clearly in the peculiar facts and circumstances of the case as the deceased Nanag Ram in that case was machine operator earning Rs 4000/- per
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