Oral Judgment:
This appeal is directed against the judgment and award dated 24.11.1998 passed by Motor Accident Claims Tribunal, Yavatmal in M.A.C. No.38/92, whereby the tribunal awarded compensation in the sum of Rs.3,21,000/- inclusive of No Fault Liability claim on account of death of one Chandrashekhar Shete caused in motor vehicular accident occurred on 17.09.1991 involving motorcycle and a truck.
2. The deceased, with a pillion rider, was proceeding on his motorcycle from village Ladkhed to Yavatmal. The truck owned by respondent no.1 and driven by respondent no.2 while coming from opposite direction dashed against the motorcycle. This resulted in instantaneous death of Chandrashekhar. He left behind him a widow and two minor children aged five and one year respectively. The deceased was serving as Assistant Field Officer with Maharashtra State Seeds Corporation Ltd., Yavatmal and was drawing total emoluments of Rs.3230/-. The appellants claimed compensation of Rs.12,00,000/- on account of loss of dependency.
3. The respondent Nos.1 and 2 resisted the petition by filing reply at Exh.17. It was their case that the truck was proceeding in a slow speed. He was the deceased, who got confused after seeing that the truck was approaching from the opposite side and dashed his motorcycle against the truck. According to them, the accident occurred due to sole negligence of the deceased. The respondent no.3-Insurer of the truck admitted that the insurance policy was in operation. However, the contention that the appellants are entitled to claim compensation of Rs.12,00,000/- was refuted.
4. The learned tribunal framed issues and after discussing the evidence, oral as well as documentary, in great detail held that the driver of the truck as well as the deceased were negligent while driving their respective vehicles. The tribunal then proceeded to apportion the negligence in the ratio of 60:40%. That means the deceased was held responsible to the extent of 40%. On the point of quantum of compensation, the tribunal assumed that there was total loss of dependency of Rs.5,10,000/-. After deducting the amount towards personal expenses of the deceased and after further deducting 40% of the sum, arrived at a figure of Rs.3,21,000/-, which is inclusive of compensation under other usual heads.
5. Mr. Patil, learned counsel for the appellants, contended that the learned tribunal adopted a very wrong approach while assessing the evidence. The tribunal did not consider the evidence of the pillion rider and wrongly came to the conclusion that the deceased also contributed in causing the accident. His next contention is that while considering the loss of dependency, the tribunal did not consider future rise in the income of the deceased despite the documentary evidence Exh.47.
6. Mr. Samarth, learned counsel for the respondent Nos.1 and 2, supported the judgment and award. According to him, by assigning sound reasons, the tribunal concluded that the deceased was also responsible in causing the accident. This finding of fact is not liable to be interfered with having regard to the material placed on record, he urged.
7. None appeared for the respondent no.3.
8. Points that arise for my consideration are;
(a) whether the learned tribunal was justified in holding that the deceased also contributed in causing the accident and was further right in attributing negligence to him to the extent of 40%?
(b) Whether the quantum of compensation has been correctly calculated?
9. Ankush, who was the pillion rider on the motorcycle, deposed that he filed M.A.C.No.12/92 for grant of compensation on account of injuries sustained by him. It seems that his evidence recorded in the petition was treated as evidence in this petition also and it is available on record. According to him, the truck was in high speed whereas the motorcycle was in slow speed. As against this, there is a evidence of PW1-Gajanan, which was also recorded in M.A.C.No.12/1992. He was travelling in the truck as a representative of the owner of the goods loaded in it. He deposed that the truck was in slow speed. The motorcycle came from opposite direction in a very high speed. Then the motorcycle dashed against the left side of the truck. Appreciating this evidence and the contents of Panchanama, the learned tribunal held that the deceased was also negligent while driving his motorcycle. The fact that the body of the deceased was lying in the middle of the road, which is mentioned in the Spot Panchanama Exh.43, weighed with the learned tribunal in reaching to the said finding. Thus, I do not find any scope for interference with this finding of fact recorded by the tribunal.
10. Turning to the point of compensation, the evidence was led to the effect that the deceased was drawing salary of Rs.3230/-. Without any revision in the salary and just on the basis of annual increment, his salary as on Nov-2000, that means after nine years, would have been Rs.8471/-. The learned tribunal did not consider the issue of future rise and simplicitor decided claim of loss of dependency on the basis of emoluments, which the deceased was drawing on the date of his death. In Sarla Varma vs. Delhi Transport Corporation; (2009) 6 SCC 121, the guidelines for deciding the loss of actual dependency have been laid down. It is observed thus:
"In view of the imponderables and uncertainities, it is favoured to adopt as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years..."
This view was followed in K.R. Madhusudhan and ors. vs. Administrative Oficer and anr.; (2011) 4 SCC 689. In Santosh Devi vs. National Insurance Co. Ltd. and ors.; (2012) 6 SCC 421, this view has been elaborated and held thus:
"Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
11. In that view of the matter, the amount of compensation fixed by learned tribunal will have to be recalculated thus:
| Total annual income | Rs. 3230/- X 12 = 38,760/-p.a.(Rounded off to Rs.39,000/-) |
| 33% rise in the income | Rs.51,870/- p.a.(Rounded off to Rs.52,000) |
| Deduction towards personal and living expenses had he been alive (1/4th ) | Rs.13,000/- p.a. |
| Total income after deducting this 1/4th amount | Rs.39,000/- p.a.(Rounded off to Rs.40,000/-) |
Total loss of dependency          : Rs.40,000/- X 17 = Rs.6,80,000/-
Reduction (40% of total loss of dependency
Rs.6,80,000/-(-) Rs.2,72,000/)Â Â : Rs.4,08,000/-
                                  (Rounded off to Rs.4,10,000/-)
The appellants will further be entitled to compensation under usual heads i.e. funeral expenses, loss of consortium and loss of estate, love and affection and total amount of compensation would be thus:
| Compensation | Rs.4,10,000/- |
| Funeral expenses | Rs. 3,000/- |
| Consortium | Rs. 10,000/- |
| Loss of estate, love and affection | Rs. 10,000/- |
| Total compensation | Rs.4,33,000/- |
12. In the result, the appeal succeeds partly. It is held that the appellants herein are entitled to receive compensation of Rs.4,35,000/- inclusive of no fault liability. The learned tribunal has awarded compensation of Rs.3,31,000/- and after deducting this amount and also Rs.25,000/- being no fault liability claim, the appellants are entitled to receive following additional sum:
| Total compensation awarded by the | Rs.4,35,000/- |
| M.A.C.T. Yavatmal amounttowards no fault liability | (-)Rs.3,31,000/-(-) Rs. 25,000/- |
| Total       | Rs.1,14,000/- |
13. The respondents jointly and severally are held liable to pay this amount to the appellants. The respondents shall deposit the amount with the Motor Accident Claims Tribunal, Yavatmal. On such deposit, the tribunal shall invest the amount in a fixed deposit in the name of appellant no.1-Smt. Shivmala for the period of 4 to 5 years in a Nationalised Bank of her choice with direction that she shall receive monthly or quarterly interest and on maturity, she shall be at liberty to withdraw the said amount without any reference to this Court.
14. The tribunal has ordered an amount Rs.50,000/- for anticipated claim of the parents of the deceased. If the amount is still lying undisbursed, the tribunal shall pass necessary orders in that behalf and in case it is found that the parents are not alive, the amount shall along with accrued interest be refunded to the original petitioner no.1.