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2017 Supreme(Bom) 2051
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. Sonak, J.
New India Assurance Co. Ltd. - Appellant
Versus
Smt. Seema Sudam Auti and Others - Respondents
First Appeal No. 1991 of 2011 with Civil Application No. 4708 of 2016
Decided On : 09-06-2017
Advocate Appeared:
For the Appellant : Ms. Poonam Mital
For the Respondents: Mr. Avinash Mukund Gokhale
Headnote:Motor Vehicles Act, 1988 - Sections 166 and 168-Claim of compensation.-Tribunal and appellate Court are duty bound to award just and fair compensation, irrespective of claim of claimant.
Motor Vehicles Act, 1988 - Sections 166 and 168-Contributory negligence.-In absence of any evidence to show that car was driven in high speed or carrying excessive passengers, contention as to contributory negligence of car driver in a collusion of car and tempo rejects.
There is no evidence to sustain any finding of contributory negligence. In particular, there is no evidence that the Alto was carrying passengers in excess of prescribed limit or that Alto was being driven at some speed exceeding some permissible limit. There is also no evidence that `S` was speaking on the mobile phone and the car was being driven with only one hand on the steering. The MACT, has in fact held that there is no evidence to sustain any inference that `S` was speaking on the mobile phone and driving the Alto with one hand only. The MACT has rightly referred to spot panchanama and noted the absence of any such mobile phone from the scene of accident. The MACT has also made reference to the deposition of DW 1, who had also not made any reference to any mobile phone, in the hand of `S`. After recording a categorical finding of fact that `S` was not speaking on the mobile phone, at the time of accident, the MACT, by way of demurer made an observation that there is no rule, which bars a driver from retaining the right hand on the steering wheel and changing gears with his left hand. This is merely an observation by way of demurer. Counsel, on the basis of material on record, was unable to make out a case that `S` was indeed negligent or that `S` contributed to the negligence, which ultimately resulted in the accident and demise of `S`. The material on record does establish that the accident took place on account of negligence of the Tempo driver. The oral and documentary evidence on record does not support the theory of any contributory negligence. The spot panchanama, damage to the vehicles, the circumstance that the Tempo was a heavier vehicle weighing 5500 kgs as compared to Alto which weighed about 750 kgs. are all relevant pieces of evidence, which have been appropriately considered by the MACT in concluding that the accident took place on account of negligence of the Tempo driver and `S`, in no manner, contributed to the negligence.
Motor Vehicles Act, 1988 - Sections 166 and 168-Just compensation.-Where deceased aged 46 years was drawing salary of Rs. 52,000/- p.m. as a Manager therefore after deducting Income Tax, 30% addition to his income is necessary for calculating just compensation.
M.S. Sonak, J.
Heard Ms. Poonam Mital for the appellant Insurance Company and Mr. Avinash Gokhale for respondent Nos.1 to 4 original claimants before the Motor Accident Claim Tribunal (MACT).
2. The appellant, appeals against the judgment and award dated 29th April 2011 made by the MACT awarding the respondents-claimants compensation of Rs.71,36,917/- together with interest at the rate of 7% per annum from the date of the institution of the claim petition till realization of the amount.
3. The claim instituted by respondent Nos. 1 to 4 (claimants) arose on account of the demise of Sudam Auti on 25th May 2006 in the accident between Maruti Alto Car (Alto) which he was driving and Tempo bearing registration No. MH01/H7008 (Tempo) at Rajuri Village, Ahmednagar Kalyan Road. The collision between Tempo and Alto resulted in the death of Sudam on the spot and injuries to the two other occupants in the Alto. Sudam was 46 years old at the time of his unfortunate demise in the accident. He was working as Manager in Patalganga Plant of Reliance Industries and drawing monthly salary of Rs.52,000/- apart from several other perquisites. The MACT, by the impugned award, has directed the owner and insurer of the Tempo to pay compensation of Rs.71,36,917/- (excluding amount of Rs.50,000/- towards no fault liability) together with interest at the rate of 7% per annum from the date of the claim petition till realization. Aggrieved by the impugned judgment and award, the appellant Insurance Company has instituted the present appeal.
4. Ms. Mital, learned counsel for the appellant, submits that this was a case of head on collision between two motor vehicles on a broad wide road. She submits that the material on record makes out a case of contributory negligence on the part of deceased Sudam, who was driving Alto. She submits that the material on record establishes that Alto was overloaded and being driven in a rash and negligent manner. She submits that the evidence on record establishes that Sudam was speaking on mobile phone and driving the Alto with only one hand to control the steering. She, therefore, submits that the compensation awarded, which is even otherwise very excessive, is required to be scaled down by at least 50%, since, the deceased Sudam, contributed to the accident to the extent of 50%. On the aspect of contributory negligence. Ms. Mital, has placed reliance upon the following decisions:
(i) Kunjamma Mathai v. Marcelo Fernandes & Ors. 1996 ACJ 866;
(ii) Smt. Ushakiran Shridhar Shinde & Ors. v. Arunkumar Kisanlal Kalal & Ors. 2001 (4) AllMR 21;
(iii) New India Assurance Co. Ltd. & Anr. v. Kamalbai & Ors. 1994 ACJ 519; and
(iv) Anand Ramkrishna Raikar & Ors v. Raghunath V. Keny & Anr. 1996 ACJ 697.
5. Ms. Mital, without prejudice to the aforesaid, submits that the compensation awarded by the MACT is excessive and contrary to the well settled principles. She submits that the evidence on record, at the highest, suggest that the total income of Sudam was Rs.5,25,910/- per annum and the MACT has erred in treating such annual income at Rs.7,46,592/-. She submits that from out of the annual income of Rs.5,25,910/-, an amount of Rs.1,09,928/- was required to be deducted towards income tax. She submits that the amount of annual income includes certain perquisite, which were exclusive to Sudam and therefore, some suitable deductions are warranted from annual income. She submits that the net income of Sudam on the basis of evidence on record, cannot exceed Rs.4 lakhs per annum. She submits that the MACT, has grossly erred in taking the annual income of Sudam at Rs.8,24,413/- and determining the compensation on the said basis. She submits that even on this score the compensation awarded by the MACT is required to be reduced to Rs.35 lakhs in place of Rs.71,86,917/- as determined by the MACT. She submits that no proper deductions have
