Zulekha Bai Saifulla Chaudhary and ors. Vs. Madhav Pardharivath Jadhav and ors. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 1 and 2 guilly of negligence and has awarded compensation to the applicants as well as to opponent no. in that case, however, the claim which was made for enhancement was a limited claim which was fully satisfied even on reduction of 50 percent. 7. in our view, however, a better method of calculating the amount of compensation would be to apply an appropriate multiplier which is determined after taking into account uncertainties of life and the fact that the amount is being paid in a lump sum.sujata manohar, j.1. the appellants are the original applicants in motor accident claim no. 317 of 1983 filed by them in the court of the motor accidents claims tribunal, thane. the appellants are the widow and 5 children of the deceased saifulia riyasat chaudhary who died in an accident on 7th may, 1983.2. it seems that at about 11 a.m. on 7th may, 1983 saifulia was travelling on the road from nasik to thane on his motor cycle. the original opponent no. 1 was the driver of a truck belonging to opponent no. 2 company which was coming from the opposite direction. there was a collision between the motor cycle driven by saifulia and the truck driven by opponent no. 1 near village kalher. though it is a regular highway, the road was only 12ft. wide at the spot of the accident. the accident took place at where there was an 's' shaped curve on this road. according to arjun sitaram goil, who was a security guard present at a distance of 15 ft. from the turning where the accident took place, he saw this accident. he has deposed that the truck was coming at a high speed. it was on the wrong side of the road. he has also stated that the right side of the truck hit the motor cycle, as a result of which saifulia died on the spot. in view of this evidence the tribunal has held opponent nos. 1 and 2 guilly of negligence and has awarded compensation to the applicants as well as to opponent no. 4, who is the mother of the deceased. the tribunal has held that the income of siafulla was about rs. 800/- per month. he has calculated the dependency of the applicants as rs. 500/- p.m. the age of the deceased at the time of his death was 32 years. nevertheless, the tribunal has taken a multiplier of only 13. it has arrived at the compensation figure of rs. 78,000/-. in addition, it has granted rs. 5,000/-to the widow of the deceased for the loss of consortium. the total amount awarded by the tribunal is thus rs. 83,000/-, the order also sets out the manner of distribution of this amount.3. the applicants have filed the present appeal for an increase in the compensation amount so awarded. the clam in the appeal is for an additional amount of rs. 67, 000/-i.e., the total compensation which is being claimed by the applicants is rs. 1, 50,000/-(rs. 83,000/-+rs. 67.000/-)4. in connection with the income of the deceased the 1st applicant, i.e. to say, the widow of the deceased, has given evidence, his son shamiulla has also given evidence in that connection. the 1st applicant has deposed that the deceased was running a shop in which he carried on business of dealing in junk. he used to give her lump sum amounts of rs. 200/- and sometimes rs. 400/- from time to time. she has said that the deceased used to give her rs. 1,000/- to rs. 1200/- per month. she has very frankly stated that she was not aware of his real income. she has also given details of monthly expenses which she incurred from the amount given to her by the deceased. particulars of these expenses show that these expenses came to about rs. 800/- p.m. in the cross-examination she has stated that she received lump sum amounts from the deceased 3 or 4 times in a month. the business of the deceased came to an end on his death. shamiulla son of the deceased has given evidence to the effect that in addition to his business, his father was also imparting tuitions in arabic. usmanniy a, an acquaintance of the deceased, has also given evidence to say that the deceased was coming to his house to give tuitions in arabic to his grandson, javed. he was paying rs. 100/-p.m. to the deceased for tuitions. he has said that the deceased was giving tuitions to two/three children at thane and bhiwandi. in view of this evidence the tribunal ought not to have taken the income of the deceased at rs. 800/-p.m. only. the approximate monthly expenditure which the wife of the deceased has given, does not cover all the expenses of the house. for example, it does not include the expenses for clothing, transport and so on. there is no challenge to her evidence to the effect that the deceased was giving her rs. 1000/- to rs. 1,200/-p.m. the tribunal has misconstrued her evidence when it says that according to the 1st applicant, her husband was giving her rs. 200/- to rs. 400/- p.m. she has merely said that he used to give her amounts in lump sum of rs. 200/ - to rs. 400/- from time to time. she has categorically said that the deceased used to give her rs. 1, 000/- to rs. 1200/- per month. there is also evidence to show that he was earning rs. 200/- to rs. 300/- p.m. by way of tuitions in arabic. no satisfactory reason is given by the tribunal for rejecting this evidence. in these circumstances the income of the deceased should have been considered as more than rs. 1,200/- p.m. after allowing for the personal expenses of the deceased, income available to the applicants must be considered in the circumstances of the case to be at least rs. 1000/- p.m. as per the evidence given by the wife of the deceased.5. the multiplier of 13 applied by the tribunal also does not appear to be warranted. the age of the deceased at the time of his death was 32 years. his span of life which was cut short could be considered as between 32 to 37 years. in choosing a multiplier, allowance has to be made for the uncertainties of life and the fact that payment is being received in lump sum by the applicant. even so the multiplier of 13 appears to be unreasonably low. the widow was only aged 28 years at the time of the death of her husband. the minor children, i.e. 3 sons aged 13, 11 and 4 and 2 daughters aged 9 and 6 respectively all would have been dependent upon the deceased for a substantial length of time. the deceased was carrying on business and hence there would not have been any age of retirement in his case. in these circumstances there is considerable force in the submission of mr. kudrolli, learned advocate for the appellants, that the multiplier of 20 should be applied.6. there are a number of decisions of our high court, various other high courts, and the supreme court dealing with the calculation of the amount of compensation to be paid on the basis of the monthly dependency of the applicants concerned. in some cases the monthly amount of dependency is multiplied by the life expectancy of the deceased. life expectancy is nowadays generally estimated at 65 or 70 years, thereafter a deduction is made from the amount so arrived as to take into account the fact that the payment is in a lump sum and to take into account other uncertainties of life. in the case of jyotsna dey v. state of assam 1987 172 (sc), the supreme court reduced the lump sum figure arrived at by multiplying the yearly dependency by the estimated balance life span of the deceased, by 20 per cent in order to arrive at the figure of compensation. our high court in the case of jaikumar chhagan lal patni v. mary jerome d' souza, 1978 28 (bom), reduced such a lump sum payment by 25 per cent. our attention, however, was drawn to a decision of this high court in the case of united india insurance co. ltd. v. abdul munaf majur hussain moomin 1984 653 (bom), where a diduction of 50 per cent was made from the lump sum so awarded. in that case, however, the claim which was made for enhancement was a limited claim which was fully satisfied even on reduction of 50 percent. hence that case cannot be considered as a proper guideline. the supreme court has reduced the amount by 20 per cent and this should be considered as an appropriate reduction.7. in our view, however, a better method of calculating the amount of compensation would be to apply an appropriate multiplier which is determined after taking into account uncertainties of life and the fact that the amount is being paid in a lump sum. once an appropriate multiplier is applied and the amount of compensation is arrived at, there is no question of any further reduction of such an amount of compensation is arrived at, there is no question of any further reduction of such an amount, by taking into account once again the same factors which were considered while determining the multiplier. in the case of milap kaur v. secretary himachal pradesh public works department (irrigation), 1988 acj 372, the himachal pradesh high court has considered several decisions of various high courts on this question of determining the amount of compensation. it has held, after considering all the decisions, that no deduction on account of lump sum payment given to the dependants is required to be made because of diverse factors, such as, the prospects of inflation and the proportionate devaluation of the rupee, the continuing rise in prices of the necessities of life and the increase in the cost of living, the omission to take into account the probability of a future increase of income of the deceased by the improvement of prospects, the time consumed in the making or finalisation of the award due to the usual delay in the usual delay in the multi-tier adjudicatory process and/or in recovering the compensation amount etc. these various factors have been regarded as counterbalancing or offsetting the benefit of getting a lump sum payment. thus it has held that any additional deduction from the lump sum which is arrived at by applying an appropriate multiplier is not warranted. we respectfully agree with this view taken by the himachal pradesh high court. in fact our high court in the case of maharashtra state road transport corpn. v. babalal daud mulani 1985 acj 282, has taken a similar view which has been relied upon by the himachal pradesh high court in the above case.8. in the present case, therefore, if the multiplier of 20 is applied to the monthly dependency of rs. 1000/- the lump sum which is arrived at comes to rs. 2,40,000/-(rs. 1,000 x 12 = 12,000 x 20 = 2,40,000). mr. kudrolli, learned advocate for the appellants, has, however, not pressed for any amount in excess of rs. 1,50,000/-. in these circumstances, therefore we grant to the claimants additional amount of rs. 67,000/-bringing the total amount of compensation to rs. 1,50,000/-.9. it is also contended by the appellants that a sum of rs. 5, 000/-given to the wife for loss of consortium is very low. this should be at rs. 10, 000/- or rs. 15, 000/-. we need not go into this aspect of the matter since the claim of the applicants has already been covered by the above award of rs. 1,50,000/-.10. the tribunal has awarded interest at the rate of 9 per cent per annum. the recent trend, however, appears to be to grant interest at the rate of 12 per cent per annum. in the case of jyotsna dey 1987 acj 172, the supreme court has granted interest at the rate of 12 per cent per annum from the date of application. in these circumstances the applicants are granted interest at the rate of 12 per cent per annum from the date of application on the entire amount of compensation the additional amount of rs. 67,000/- together with interest accrued upto date to be deposited in this court within a period of four weeks from today.11. the amount of compensation is to be distributed as under.(a), the new india assurance co. ltd. to deposit the additional compensation awarded with the registrar, high court, bombay within 4 weeks.(b) the amount be distributed amongst the appellants as under.(i) samiulla saifulla chaudhary - son: rs. 10, 000/-(ii) shakil saifulla chaudhary - son : rs. 10, 000/-(iii) shakilabi saifulla chaudhary - daughter: rs. 10, 000/-(iv) zibedabi saifulla chaudhary - daughter: rs. 10, 000/-(v) mashooq ahmed s. chaudhary - son: rs. 10, 000/-(vi) zulekhabi saifulla chaudhary - widow, 36 years: balance(c) the amount coming to the share of children be invested under the monthly income scheme approved by unit trust of india or national small savings scheme for the period prescribed under the scheme.(d) in the case of minors the investment should be renewed until they attain majority.(e) out of the amount coming to the share of the widow zulekhabi s. chaudhary, a sum of rs. 30, 000/- be invested under monthly income scheme or national savings scheme for the period prescribed under the scheme.(1) the balance amount be paid to the widow zulekhabi s.chaudhry by a/c payee cheque. 12. in the result. there fore, the appeal is allowed with costs.