of the deceased was ` 15,058/-. As already stated earlier, If the
income by way of pension was 50% of the last drawn salary
which was ` 22,260/- it had to be ` 11,130/- and not ` 10,058/- as
held by the learned M.A.C.T. Adding further income of ` 5,750/-
earned out of tuition, the total income becomes ` 16,880/-. The
contention of the learned Counsel appearing for the respondents
to the effect that the family of the deceased would be getting
family pension after the death of the deceased and, therefore,
the said family pension amount had to be deducted from the total
income, has no force at all. In the case of “Lal Dei and others”
(supra), the Hon'ble Supreme Court has held that the Motor
Accident Claims Tribunal as well as the High Court could not have
deducted the amount of family pension given to the family while
calculating dependency of the claimants. The Apex Court
referred to the case of “Helan C. Rebello Vs. Maharashtra
S.R.T.C.”, [1998 (3) Mh. L. J. (SC) 674] : [1999(1) SC 90], wherein
the Apex Court had specifically dealt with the said question and
had observed that the family pension is earning of an employee
for the benefit of his family in the form of his contribution in the
service in terms of the service conditions receivable by the heirs
after his death. It was observed that the heirs receive family
pension even otherwise than the accidental death and there is no
co-relation between the two and, therefore, the family pension
amount paid to the family cannot be deducted while claiming the
compensation awarded to the claimants. Therefore, the learned
M.A.C.T. cannot be said to have committed any error by not
deducting the family pension amount.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 119 of 2009
Shri Vezic D'Costa alias
Vajic D'Costa,
Versus
Shri Manuelino Fernandes Sales,
CORAM :- U. V. BAKRE, J.
Pronounced on : 16th December, 2014.
Citation: 2016 (3) ALLMR775
Heard Mr. Netrawalkar, learned Counsel for the
appellants and Mr. Diniz, learned Counsel for the respondents.
2. This appeal is directed against the Judgment and
Award dated 06/01/2009 passed by the learned Presiding Officer
of Motor Accident Claims Tribunal for the Taluka of Salcete at
Margao (M.A.C.T., for short) in Claim Petition No. 125 of 2004.
3. The appellants were the respondents whereas the
respondents were the claimants in the said petition. Parties shall,
hereinafter, be referred to as per their status in the said Claim
Petition.
4. The claimants had filed the said petition under
Section 166 of Motor Vehicles Act, 1988 (M. V. Act, for short) for
grant of total compensation of ` 23,00,000/- on account of death
of the wife of the claimant no. 1 and mother of claimants no. 2, 3
and 4 in the motor vehicular accident. Case of the claimants, in
short, was as follows :
On 28/06/2002, the wife of the claimant no. 1 namely
Filomena, since deceased, was driving Wagon-R Car bearing
registration no. GA02/J-5737 at a normal speed and on reaching
Majilwada, Ponda at 11.50 hours, the Maruti Zen car bearing
registration No.GA02/J-4802, came from opposite direction at a
fast speed and dashed against the Wagon-R car due to which the
deceased lost control over her car which tilted. Due to the
collision between the two vehicles, the deceased suffered serious
internal injuries which resulted in her death. The claimants,
therefore, lost the earning member of their family. All the
children were taking education in different institutions and have
lost the shelter. The claimant no. 1 also lost his practice due to
the death of his wife since he was under shock. The accident had
occurred totally due to the rash and negligent driving of Maruti
Zen car by respondent no. 1.
5. The respondents filed their written statement thereby
denying the case of the claimants. They alleged that the
accident occurred due to the rash and negligent driving of the
Wagon-R car by the deceased herself. The respondents stated
that on 28/06/2002, the respondent no. 1 was proceeding by his
Maruti Zen car bearing No. GA02/J-4802 from Ponda towards
Margao at a slow speed and on his correct side and when he
reached near the house of one Smt Laxmi Naik near Sai Baba
Temple at Borim, the deceased, who was proceeding with Wagon-
R car towards Ponda drove the same in a rash and negligent
manner and at a fast speed and at the spot of accident, suddenly
lost control and came towards wrong side of the road and dashed
against the wall of the house of Smt Laxmi Naik and thereafter,
turned turtle on the road and dashed front left side of the car
driven by the respondent no. 1. The respondents, therefore,
claimed that the accident had occurred totally due to rash and
negligent driving of the Wagon-R by the deceased herself.
6. Issues were framed by the learned M.A.C.T. as per the
rival contentions of the parties. The claimants examined the
claimant no. 1 as AW1, Shri Xavier Marques, one of the panch
witnesses for the panchanama of the scene of accident and
sketch as AW2, Dr. Somnath Perni, who conducted Autopsy
examination on the dead body of the deceased as AW3, Shri
Guruprasad Cuncolienkar, the Deputy Director of Accounts/PA-III
as AW4, Shri Nacimenta Fernandes, a maid servant as AW5, Ms.
Carmin Barretto, a student of ballet Class as AW6 and Shri
Shubham Borkar, an eye witness, as AW7. The respondents
examined respondent no. 1 as RW1, one Shri Laxman Naik as
RW2, Shri Uday Naik as RW3 and Shri Mafaldo Fernandes as RW4.
7. Upon consideration of the entire evidence on record,
the learned M.A.C.T. held that the accident had occurred due to
the negligence of the deceased as well as of the respondent no.
1. The learned M.A.C.T. held that the deceased, while in service,
was earning ` 23,000/- per month by way of salary and ` 5,300/-
by way of tuition fees. The deceased had taken voluntarily
retirement from service on 28/06/2002. The learned M.A.C.T.
found that the last drawn salary of the deceased as Lecturer was
` 22,260/- per month as on 31/01/2002 and, therefore, she would
draw pension of 50% of the salary inclusive of D.A. which
according to the M.A.C.T. worked out approximately to ` 10,058/-
per month. Adding ` 5,000/- earned by giving tuitions, the net
income of the deceased was held to be ` 15,058/- per month.
After deducting 1/3rd towards personal expenses of the deceased
and using multiplier of 11, since that the age of the claimant no.
1 was between 52 to 55 years, the learned M.A.C.T. fixed the loss
of dependency at ` 13,25,104/-. An amount of ` 5,000/- was
awarded towards loss of consortium, an amount of ` 2,500/- was
awarded towards loss of estate and an amount of ` 2,000/- was
awarded towards funeral expenses. Towards pain and sufferings,
the compensation of ` 2,00,000/- was awarded to the claimants.
The total compensation was calculated at ` 15,34,604/- and since
it was the case of contributory negligence, an amount so
calculated was scaled down to ` 11,50,953/-. The petition was,
thus, partly allowed holding that the respondents, jointly and
severally, were liable to pay to the claimants the compensation of
` 11,50,953/- along with interest at the rate of 9% p.a. from the
date of application till the date of payment. The amount paid
under Section 140 of the M. V. Act was ordered to be adjusted.
The claimants have not challenged the said Judgment and Award,
but the respondents have challenged the same by way of present
appeal.
8. Mr. Netravalkar, learned Counsel for the respondents,
pointed out that the sketch of the spot of the accident which is
part of Exhibit 28-colly shows Maruti Zen car on correct side of
the road whereas Wagon-R having turned turtle on the wrong
side. He pointed out that the said Wagon-R had dashed the
house and the said house had developed cracks. He further
pointed out that damages were to the left side of the Maruti Zen
car. He pointed out that RW3, then A.S.I., Uday Naik has stated
that no offence was registered against any driver and the case
was closed as “A” summary since the accident was caused due to
the fault of the driver of Wagon-R herself, who died in that
accident. He submitted that AW1, the claimant no. 1 had not
seen the accident and that the only eye-witness examined by the
claimants was AW7. According to him, the evidence of AW7 was
not at all reliable as compared to that of RW1 and RW4. He,
therefore, urged that the accident had occurred totally due to the
fault of the deceased and, therefore, the Claim Petition be
dismissed. Insofar as the quantum of compensation is
concerned, the learned counsel for the respondents submitted
that the deceased had resigned prior to the date of accident and
there was no evidence to work out her pension. He submitted
that even if there was pension, after the death of the deceased,
the family would continue to get family pension which amount
was required to be deducted. He further submitted that being a
Government servant, the deceased could not have taken tuition.
He, therefore, urged that only notional income of ` 3,000/- per
month could have been taken as income of the deceased. He
pointed out that according to AW4, she signs and never affixes
thumb impressions but the receipt at Exhibit 34 shows thumb
impression and, therefore, the same is manipulated. According to
the Counsel, this shows the conduct of the claimants. He further
urged that a huge amount of ` 2,00,000/- has been awarded
towards pain and sufferings. He pointed out that in the present
case, the victim had died immediately and there was no question
of any pain and suffering. He further submitted that even the
interest of 9% p.a. awarded by the M.A.C.T. is on a higher side.
He, therefore, urged that if this Court is not inclined to dismiss
the Claim Petition, then, the compensation awarded be reduced
appropriately.
9. On the other hand, Mr. Diniz, learned Counsel appearing
on behalf of the claimants submitted that the learned M.A.C.T.
has rightly accepted the evidence of AW7. He read out the
testimony of AW7 and submitted that his cross-examination
reveals that he was fully aware of the site. He pointed out that
the evidence on record shows that people had informed fire
brigade and the deceased was removed out of the car by the
members of the fire brigade. He submitted that RW4, who is
examined as eye-witness, does not know as to who had removed
the victim from the car. Learned Counsel, therefore, urged that
RW4 is not a reliable witness. He submitted that in such
circumstances, there was evidence of RW1 on one side and AW7
on the other side and the learned M.A.C.T. has held that there
was contributory negligence which the claimants had not
objected to. Mr. Diniz, learned Counsel for the claimants further
submitted that since the deceased had taken voluntary
retirement, it goes without saying that there had to be pension.
Relying upon the judgment of the Supreme Court in the case of
Lal Dei and others Vs. Himachal Road Transport, [2007(8) SCC
319], he submitted that while awarding compensation, the family
pension given to the family cannot be deducted. He submitted
that there is ample evidence on record to establish that the
deceased was earning about ` 4,500/- per month by giving
tuition. He submitted that the income of ` 15,058/- taken by the
learned M.A.C.T. cannot be called as unjust. He further submitted
that since the dependents were four in number, deduction ought
to have been 1/4th, but the learned M.A.C.T. has deducted 1/3rd
.
He also urged that at least ` 1,00,000/- had to be granted
towards loss of consortium and an amount of ` 25,000/- had to be
granted towards funeral expenses. He, therefore, submitted that
if all the above factors are taken into consideration, the
compensation awarded by the learned M.A.C.T. cannot be taken
as exorbitant. He, therefore, urged that no interference is called
for with the impugned Judgment and Award.
10. I have gone through the original record and
proceedings of Claim Petition No. 125/2004. I have considered
the arguments advanced by the learned Counsel for the parties
and the judgments relied upon by them.
11. The first point that arises for determination is whether
the accident had occurred totally due to the fault of the deceased
herself.
12. It is true that AW1, the claimant No. 1, was not an
eye-witness to the accident. As per the information received by
AW1, he deposed that on 28/06/2002 at about 11.50 a.m., his
wife was travelling in her Wagon-R at a normal speed and that at
Majilwada-Borim, Ponda, a Maruti Zen came from opposite
direction in speed and dashed to the Wagon-R driven by his wife,
due to which the Wagon-R tilted and due to the impact of collision
between two vehicles, his wife suffered serious internal injuries
which resulted in her death on the same day of accident. He
stated that the accident occurred due to the rashness and
negligence of the driver of Maruti Zen. He stated that his wife
used to go regularly for her work in the same car and was well
conversant with the said road. In his cross-examination, AW1
denied the suggestion that his wife was in a hurry to reach to the
college for her lectures and that she was driving the Wagon-R at
a very fast speed and could not control the vehicle and dashed
against the compound wall of one Laxmi Naik and thereafter,
turned and dashed against Maruti zen car and thereafter turned
turtle. In fact, the deceased had retired from service and there
was no question of going to the college in a hurry. There was no
reason fro her to drive at excessive speed.
13. AW7 Shri Shubham Borkar, in his affidavit-inevidence,
stated that on 28/06/2002, he was proceeding from
Ponda towards Lotoulim on his bike and at around 11.50 hours
when he reached at Majilwada-Borim, one Maruti Zen overtook
him rashly and at a fast speed and dashed Wagon-R car which
was coming from opposite direction from the left side of the road,
if one proceeds from Margao to Ponda. AW7 stated that due to
the impact of the said dash, Wagon-R turned turtle and dashed
against the wall of the house which was very close to the main
road and remained in upside down position. He stated that he
stopped the bike and ran towards Wagon-R along with other
people and saw that one lady was on the driver's seat of the said
Wagon-R with her body pressed in the vehicle and had sustained
serious injuries and was looking as if she had died. He stated
that he left the accident spot thereafter and on the next day,
narrated the incident to his friend by name Tony Coutinho. He
stated that after some months, said Tony called him and told that
the said lady was mother of his friend Stahl Sales and that the
said accident was reported by the police as self accident and,
therefore, Stahl Sales wanted to contact him. AW7 stated that
after some days, Stahl Sales contacted him and he narrated the
incident to Stahl. According to AW7, the accident had occurred
due to rash and negligent driving by the driver of the Maruti Zen.
In his cross-examination, AW7 stated that on 28/06/2002, he had
set out for Panaji from Ponda around 11.00 hours. He stated that
he did not know the family of claimants at any time earlier and
that his friend Tony Coutinho had told him that his presence
would be required in the Court. He stated that the Zen car
overtook him at a distance of 100 metres approximately and prior
to the spot of accident. He admitted that there were speed
breakers on the road towards Ponda side in the vicinity of the
accident spot and that there was downward slope to the road
towards the spot from Margao to Ponda and upward slope in the
opposite direction. He stated that he had noticed that the
steering wheel was pressed against the chest of the deceased.
He denied the suggestion that he was nowhere in the vicinity of
the accident spot. Merely because AW7 left the accident spot, it
cannot be said that he was nowhere in the vicinity of the accident
spot, at the relevant time of accident. AW7 was not knowing the
deceased lady and had nothing to do with her family and,
therefore, naturally, he left the accident spot. Merely because
Tony Coutinho was the friend of Stahl Sales, the mother of the
deceased, it cannot be said that AW7 was interested witness.
The testimony of AW7 is not shaken in his cross-examination and
there is no reason to disbelieve him fully.
14. RW1, the respondent no. 1, stated in his affidavit in
evidence that on 28/06/2002, he was driving the Maruti Zen
bearing registration No. GA-02/J-4802 belonging to his wife i.e.
respondent no. 2 and was proceeding from Ponda towards
Margao in a slow speed and on his correct side. He stated that at
about 11.50 hours, he reached near the house of one Smt. Laxmi
D. Naik near Sai Baba Temple, Borim when the deceased lady,
who was proceeding towards Ponda by her Maruti Wagon-R car
bearing registration No. GA-02/J-5737, drove the same in a rash
and negligent manner at a fast speed and on reaching the spot of
the accident, all of a sudden, lost control over the vehicle and
came towards wrong side of the road and dashed against the wall
of the house of Smt. Laxmi D. Naik and thereafter, turned turtle
on the road and dashed to the front left side portion of the Maruti
Car driven by him. RW1 stated that the accident occurred due to
the rash and negligent driving of the deceased herself. RW1
produced local newspapers namely Gomantak Times dated
29/06/2002 and Tarun Bharat of the same date as Exhibit 50 colly
as also the extract of the final report as Exhibit 51 colly. First of
all, the deceased was an educated person being a retired
Professor at Engineering College at Farmagudi and a responsible
family person. She had died on the spot whereas the respondent
no. 1 had not sustained any injury. In such circumstances, there
was nobody at the spot except RW1 to give news to the
representatives of the said newspapers, in the manner he
wanted. In his cross-examination, RW1 has stated that he was
driving Zen Car at a speed of 30 Kilometres per hour from the left
side of Ponda-Margao road. He further stated that Laxmi Naik
was demanding money from Police prior to removal of the vehicle
since the wall of her house was damaged. He stated that he had
tried to avoid the impact with Wagon-R car on seeing it dashing
against the wall of the house and then turning turtle. He stated
that the police had made inquiries with him apart from
conducting panchanama and other formalities and he had
described as to how the accident had taken place. He admitted
that he had continued to be at the spot till the conclusion of the
panchanama and even when the body of the deceased was lifted
from the accident spot and even thereafter. The version given by
RW1 to the police was, therefore, one sided. No doubt, RW1
denied the suggestion that taking advantage of the absence of
the family of the deceased, he prevailed upon the police and
police acted in collusion with him and prepared panchanama and
the sketch at the spot.
15. Instead of examining Smt. Laxmi Naik, the
respondents examined Shri Laxman Naik as RW2. RW2 stated
that on 28/06/2002 by about 11.50 hours, he had reached home
from the fields and was washing his feet in the courtyard when he
noticed the Maruti car proceeding from Margao towards Ponda
direction from the courtyard of his house, which was on the right
side of the road. He stated that the said Maruti car dashed
against the wall of his house and in the process fell against
another Maruti car coming from Ponda towards Margao. He
stated that the police recorded his statement as also that of his
wife. He stated that Maruti car, proceeding from Margao towards
Ponda, was driven at a very fast speed and that his house was
totally damaged due to the impact of the Maruti Car and he
incurred expenses of ` 8,000/- approximately towards repairs. In
his cross-examination, RW2 admitted that he was looking at his
feet while washing them and came towards the road only after
hearing sound of impact. He admitted that he saw the car
dashed against his house only after hearing the sound of impact.
He could not state as to who were the occupants of the Maruti
Van proceeding from Margao to Ponda and for that matter, the
occupants of Maruti car proceeding from Ponda direction. He
denied the suggestion that his wife was demanding money from
the police on account of damages to their house, soon after the
accident. Since the Maruti car driven by the deceased had
dashed the wall of the house of RW2, naturally, RW2 had to claim
damages from the deceased. Therefore, it is quite possible that
RW2 had put the blame on the deceased. But he had not seen
the actual accident.
16. According to RW3, A.S.I. Uday Naik, no offence was
registered against any driver, but the case was closed as “A”
summary, since, according to the A.S.I. Wadkar since deceased,
the death was caused due to the fault of the deceased herself.
17. RW4 Shri Mafaldo Fernandes, in his affidavit in
evidence, stated that on 28/06/2002, he was proceeding from
Churchorem to Ponda by his scooter bearing registration no.
GA02/-1488 and at about 11.50 hours, he reached MajilwadaBorim
where one Wagon-R bearing registration no. GA02/J-5737
overtook him in a rash and negligent manner and at a fast speed
and thereafter, all of sudden went towards right hand side of the
road and gave dash to the house situated on that site and
thereafter, turned turtle on the road and dashed to Maruti car
bearing registration no. GA02/J-4808 which had halted after
crossing the speed breaker on noticing the Wagon-R coming
towards wrong side. He stated that as soon as he saw the
Wagon-R giving dash to the house and turning turtle, he stopped
his scooter and rushed to help the driver of the said Wagon-R and
found that driver was one lady, who was trapped in the car. He
stated that thereafter the people who gathered there, removed
the lady from the Wagon-R and kept her body on the road to give
first aid and it was found that she was dead. RW4 stated that
there was no fault on the part of the Maruti Zen and the fault was
totally of the deceased lady. He stated that after some time, the
police came to the spot and he along with the other persons
narrated the incident to the police. According to RW4, he had
given his address to the driver of the Maruti Zen and on
01/07/2008, the wife of the said driver of Maruti Zen contacted
him and requested to come as a witness. He stated that since he
had witnessed the accident, he agreed and accordingly, on
02/07/2008, contacted the Advocate appearing on behalf of the
Insurance Company and narrated as to how the accident had
taken place. In his cross-examination, RW4 stated that he was
working as a teacher in Churchorem and after the accident, learnt
that the respondent no. 1 was from Churchorem. He stated that
he was proceeding to Ponda for some personal work in and
around Telephone Department. He stated that he confirmed that
the deceased was removed from the vehicle by the members of
the public and further stated that he did not know if the fire
brigade personnel had arrived at the spot or had removed the
deceased from the damaged car. In fact, the fire brigade
personnel had arrived at the spot and had removed the dead
body from the car. The Final Report says that the fire brigade
was informed to rush to the spot. No other witness including RW1
stated that the Maruti car had halted after crossing the speed
breakers. The testimony of RW4 is not free from suspicion and
cannot at all be relied upon.
18. In the facts and circumstances of the case,
considering the evidence of AW7 and of RW1, in my view, the
conclusion arrived at by the learned M.A.C.T. that there was
contributory negligence on the part of the deceased as well as
the respondent no. 1, in the ratio of 25:75, cannot be faulted.
There was no reason for the deceased to suddenly lose control
over the vehicle and go on the wrong side. Otherwise, the
deceased was not a new driver. She used to always travel by the
same car. I, therefore, hold that the learned M.A,.C.T. has
correctly held that the accident had occurred due to the
negligence of the deceased as well as of the respondent no. 1
and that the contributory negligence was in the proportion of
25:75.
19. The next point that arises for determination is whether
the compensation awarded by the learned M.A.C.T. is unjust and
unreasonable and should be reduced.
20. The evidence of AW1, the husband of the deceased
proves that the deceased was Professor in Government College of
Engineering, Farmagudi, Ponda and while in service, she was
earning ` 23,000/- per month. AW4 Shri Guruprasad
Cuncolienkar, the Deputy Director of Accounts/PA-III has proved
the last drawn salary certificate of the deceased which is at
Exhibit 38. This certificate shows that as on 31/01/2002, the
deceased was drawing gross salary of ` 22,260/-. The deceased
had taken voluntary retirement and was not in service as on the
date of the accident i.e. 28/06/2002. Since the deceased had
taken voluntary retirement, it can be safely presumed that she
was getting pension. It is known fact that pension would be 50%
of the gross salary and the learned M.A.C.T. has taken the income
of the deceased by way of pension as ` 10,058/- which is in fact
less than 50% of ` 22,260/-. 50% of ` 22,260/- is ` 11,130/-.
21. Merely because the deceased was a retired Government
servant, it cannot be said that she was not entitled to take tuition
and that she was actually not giving tuition. AW1 has specifically
stated that the deceased was earning `5,300/- by way of tuition.
In his cross-examination, AW1 stated that his wife was taking
tuition at home depending on the availability of time since she
was otherwise, gainfully employed as a lecturer. There is no
denial to the above statements made by AW1. The evidence of
AW6, Ms. Carmin Barretto reveals that the deceased used to
conduct ballet classes at Fatima Convent High School in the
name and style of school of ballet. AW6 has stated that she was
the student of the deceased in the year 1992 and used to pay `
300/- per month as fees. AW6 stated that after she finished her
course, she joined the school of ballet as a teacher and the
deceased started paying her ` 1,000/- per month as her salary.
According to AW6, the deceased used to earn approximately
about ` 20,000/- per month by conducting the school of ballet.
She stated that the deceased had conducted two shows one at
Gomant Vidya Niketan in the year 1993 and another at Kala
Academy in the year 1994. In her cross-examination, AW6 stated
that there were about 60 students learning ballet including
herself. She could not say whether she would be in possession of
the receipt issued to her by the deceased in respect of payment
of ` 300 to the deceased. In my view, considering the evidence
of AW1 and AW6, the learned M.A.C.T. has rightly held that the
deceased was drawing an amount of ` 5,000/- on tuitions. The
age of the deceased was between 52 to 55 years. In the case of
“Rajesh Vs. Rajbir Singh”, [(2013) 9 SCC 54], the Hon'ble Three-
Judge Bench of the Supreme Court has observed as under:-
“ 12. In Sarla Verma's case, 2009 ACJ 1298 (SC),
it has been stated that in the case of those above
50 years, there shall be no addition. Having regard
to the fact that in case of those self-employed or
on fixed wages, where there is normally no age of
superannuation, we are of the view that it will only
be just and equitable to provide an addition of 15%
in the case where the victim is between 50 and 60
years so as to make the compensation just,
equitable, fair and reasonable. There shall normally
be no addition thereafter”.
Since the deceased was earning ` 5,000/- by way of self
employment of giving tuition, and since her age was below 60
years, an addition of 15% had to be made to her income of `
5,000/-, and by doing so the said income of the deceased
becomes ` 5,750/-.
22. The learned M.A.C.T. has held that the monthly income
of the deceased was ` 15,058/-. As already stated earlier, If the
income by way of pension was 50% of the last drawn salary
which was ` 22,260/- it had to be ` 11,130/- and not ` 10,058/- as
held by the learned M.A.C.T. Adding further income of ` 5,750/-
earned out of tuition, the total income becomes ` 16,880/-. The
contention of the learned Counsel appearing for the respondents
to the effect that the family of the deceased would be getting
family pension after the death of the deceased and, therefore,
the said family pension amount had to be deducted from the total
income, has no force at all. In the case of “Lal Dei and others”
(supra), the Hon'ble Supreme Court has held that the Motor
Accident Claims Tribunal as well as the High Court could not have
deducted the amount of family pension given to the family while
calculating dependency of the claimants. The Apex Court
referred to the case of “Helan C. Rebello Vs. Maharashtra
S.R.T.C.”, [1998 (3) Mh. L. J. (SC) 674] : [1999(1) SC 90], wherein
the Apex Court had specifically dealt with the said question and
had observed that the family pension is earning of an employee
for the benefit of his family in the form of his contribution in the
service in terms of the service conditions receivable by the heirs
after his death. It was observed that the heirs receive family
pension even otherwise than the accidental death and there is no
co-relation between the two and, therefore, the family pension
amount paid to the family cannot be deducted while claiming the
compensation awarded to the claimants. Therefore, the learned
M.A.C.T. cannot be said to have committed any error by not
deducting the family pension amount.
23. In the case of “Sarla Varma (Smt.) and others Vs. Delhi
Transport Corporation and another”, [(2009) 6 SCC 121], it has
been held that the age of the claimants or the deceased
whichever is higher is relevant for determination of
compensation, for motor vehicular accident cases. In the present
case, since the wife of the claimant no. 1 had died, it can
reasonably be said that the claimant no. 1 was elder to the
deceased. As per the marriage certificate, which is part of exhibit
21 colly, the claimant no. 1 was married to the deceased on
10/02/1983. The claimant no. 2 was born on 11/05/1984 which
means that she was about 18 years old at the time of accident.
The learned M.A.C.T. held that the age of claimant no. 1 was
between 52 to 55 years at the time of accident. In the case of
“Sarla Verma” (supra), it has been held that the multiplier to be
used for age group of 51 to 55 years is 11. The learned M.A.C.T.
has used the multiplier of 11. Hence, the multiplier has been
rightly chosen by the learned M.A.C.T.
24. In the present case, though the claimant no. 1 is a
Doctor by profession and, therefore, may not be dependent on
the income of the deceased, however, the claimants no. 2, 3 and
4 were dependents on the income of the deceased. In the case
of “Sarla Verma” (supra), it has been held that 1/3rd of the income
should be deducted towards personal and living expenses of theFA119/2009
24
deceased if the deceased was married and the number of
dependents were 2 to 3. Since in the present case, the
dependents were three in number, the learned M.A.C.T. has
rightly made the deduction of 1/3rd.. Since the monthly income of
the deceased was ` 16,880/-, her yearly income was ` 2,02,560/-
and on deducting 1/3rd towards personal expenses of the
deceased, from the same, the remainder is ` 1,35, 040/-, which
becomes the multiplicand. By using multiplier of 11, the loss of
dependency becomes ` 14,85,440/-. In the case of “Rajesh Vs.
Rajbir Singh”, (supra), after considering various judgments
including that in ”Sarla Verma” (supra), the Hon'ble Three-Judge
Bench of the Supreme Court has held that the compensation
under the head “loss of consortium” to the spouse, loss of love,
care and guidance to children and funeral expenses amount
should be awarded at ` 1,00,000/- and ` 25,000/- respectively.
Even in the recent case of “Savita Vs. Bindar Singh and others”,
[(2014) 4 SCC 505], the Hon'ble Supreme Court has held that the
compensation under head “loss of consortium” to the spouse,
loss of love, care and guidance to children and funeral expenses
amounts should be ` 1,00,000/- and 25,000/- respectively. The
learned Reference Court has awarded ` 5,000/- towards loss of
consortium, ` 2,500/- towards loss of estate and ` 2,000/- towards
funeral expenses and further awarded compensation of `FA119/2009
25
2,00,000/- towards pain and sufferings. In my view, the question
of awarding compensation towards pain and sufferings in a death
case would not arise. But, towards loss of consortium and
towards funeral expenses, an amount of ` 1,00,000/- and `
25,000/- respectively ought to have been awarded. By adding `
1,25,000/,- and ` 2500/- towards loss of estate, the total
compensation comes to ` 16,12,940/-. Since it was the case of
contributory negligence of 25:75 by bringing down the said
amount by 25%, the compensation to which the claimants are
entitled, becomes ` 12,09,205/-. The learned M.A.C.T. has
awarded ` 11,50,953/- as compensation. The claimants have not
filed any appeal against the said award. Therefore, the
impugned judgment and award does not warrant any
interference.
25. In the result, the appeal is dismissed and stands
disposed of accordingly, with no order as to costs.
U. V. BAKRE, J.
SMA
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