Admittedly, the deceased was an agricultural labourer. Learned Counsel for the MSRTC has first tried to submit that an agricultural labourer neither fits into the category of self employed nor being on a fixed salary, and therefore, the concept of future prospects cannot be applied. She has also sought to invoke the dictionary meaning of the word 'self employed'. Firstly, no doubt, self employed would mean earning income directly from one's own business, trade, or profession rather than as a specified salary or wages from an employer, however, in my view, an agricultural labourer is a service provider of agricultural labour and can be said to be engaged in his profession like a carpenter or a cobbler. He has the skill of agriculture labour and is specialized in performing agriculture labour. Therefore, in my view, an agricultural labourer earning income from the profession of agriculture labour is a self employed person. No contrary view or decision has been brought to my notice. {Para 11}
IN THE HIGH COURT OF BOMBAY
First Appeal No. 1579 of 2006
Decided On: 21.09.2023
Kalpana Madhu Gavali and Ors. Vs. Maharashtra State Road Transport Corporation
Hon'ble Judges/Coram:
Abhay Ahuja, J.
Citation: MANU/MH/3837/2023.
1. This is an Appeal filed under Section 173 of the Motor Vehicles Act, 1988, (the "M. V. Act") by the original claimants in Claim Application No.189 of 2003 filed before the Motor Accident Claims Tribunal, Baramati, seeking enhancement of compensation, in view of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others MANU/SC/1366/2017 : (2017) 16 Supreme Court Cases 680.
2. The brief facts are that on 18th May 2003 one Madhu Kondiba Gavali, who had gone to Akluj to attend marriage of daughter of one Dattu Hange and after the marriage he came to the old State Transport (ST) Bus stand Akluj and when he was going to answer nature's call, one bus owned by the Respondent - Maharashtra State Road Transport Corporation (MSRTC) bearing no.MH-R/R-2018 came from behind in excessive speed and gave dash to him, due to which he fell down and the bus ran over him, crushing his skull and killing him on the spot. The Appellants, who are the wife, the father and two sons of the deceased Madhu Gavali preferred a Claim Application under Section 166 of the M. V. Act for an amount of Rs.3,00,000/- as compensation. It was the case of the Appellants that the deceased person, an agricultural labourer, was earning Rs.3,000/- per month and that he would have earned Rs.2,00,000/- to Rs.3,00,000/-, had he survived. The Appellants claimed Rs.2,60,000/- by way of loss and Rs.40,000/- towards pain and agony, totalling to Rs.3,00,000/-. The Respondent MSRTC opposed the Claim Application and filed a written statement stating that the ST bus was in slow speed and the driver was driving the bus by observing traffic rules with proper care. That, the deceased himself fell to the backside wheel and the said fact was not known to the driver and the accident occurred due to mistake of the deceased, and therefore, the bus driver was not liable for the accident. It was, accordingly, prayed that the application be dismissed.
3. The Tribunal, after going through the evidence including the First Information Report (FIR) and the other police papers, postmortem report as well as the testimony of the witnesses, held that Madhu Kondiba Gavali died in an accident on 18th May 2003, on the spot, being run over and crushed by the offending ST bus at Akluj Bus depot and held that the driver of the ST bus was negligent for the accident. It is recorded that the driver was not examined and the Tribunal held that there was no substance in the defence of the ST bus driver that he was not liable to pay compensation. The Tribunal, in the absence of any evidence on record regarding the income of the deceased, held the notional income to be Rs.15,000/- per annum from his agricultural labour work and after deducting 1/3rd income for his personal expenses, held that the family sustained dependency loss of approximately Rs.10,000/- per year. Considering the age of the deceased on the basis of the postmortem report, to be 30 years, the Tribunal applied multiplier of '17' and came to a total dependency loss of Rs.1,70,000/-. The Tribunal awarded Rs.10,000/- towards loss of consortium and love and affection and also an amount of Rs.5,000/- towards funeral expenses and Rs.2,500/- as loss of estate and held that the Appellants were entitled to a total compensation of Rs.1,87,500/- including 'No fault liability' amount of Rs.50,000/-.
4. The Respondent MSRTC did not challenge this judgment and award. However, the Appellants, aggrieved by the judgment and award, have filed this Appeal for enhancement of compensation. Mr.Rajure, learned Counsel for the Appellants, would submit that the Appellants do not dispute the notional income of Rs.1,250/- per month calculated on the basis of Rs.15,000/- per annum. However, the Appellants are aggrieved that the future prospects of 40%, as observed in the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others (supra), have not been awarded. Mr.Rajure also relies upon the decisions of this Court in the case of Rajendra Datta Halarnkar & Anr. vs. Mrs.Deepali Dinesh Harlarnkar MANU/MH/1308/2022 : 2022 (5) ALL MR 257 to submit that once notional income is determined, the benefit of future prospects will have to be granted. Learned Counsel would submit that 40% of Rs.1,250/- would be Rs.500/- and if that is added to the notional income of Rs.1,250/-, the monthly income would be Rs.1,750/- and for 12 months it would amount to an income of Rs.21,000/- per annum. Mr.Rajure submits that this is so because the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others (supra) considers application of 40% future prospects in the case of a person, who is self employed or a person who is employed in an establishment. Mr.Rajure would submit that the deceased, an agricultural labourer, was self employed, married of 30 years having wife and two sons and there being three dependents, the deduction towards personal expenses would be Rs.14,000/-. Mr.Rajure does not also dispute the multiplier of '17' that has been applied. Learned Counsel would submit that Rs.14,000/- multiplied by 17 would come to Rs.2,38,000/-.
5. Further, Mr.Rajure draws the attention of this Court to the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and Others MANU/SC/1012/2018 : (2018) 18 Supreme Court Cases to submit that the Appellants, in addition, are entitled to an amount towards loss of consortium of Rs.40,000/- each to the dependents with 10% enhancement in a span of three years i.e. Rs.44,000/- and funeral expenses of Rs.15,000/- with 10% enhancement that would be Rs.16,500/- and loss of estate of Rs.15,000/- with 10% enhancement that would be Rs.16,500/-. Thus, the Appellants are entitled to consortium amount of Rs.44,000/- each for the three Appellants, that would be an amount of Rs.1,32,000/- as against Rs.10,000/- awarded by the Tribunal; to that the funeral expenses of Rs.16,500/- as against Rs.5,000/- as awarded by the Tribunal and loss of estate of Rs.16,500/- as against Rs.2,500/-awarded by the Tribunal, would need to be considered. Learned Counsel would submit that, therefore, the total amount under the conventional heads would be Rs.1,65,000/-. Mr.Rajure would, therefore, submit that the total compensation that the Appellants would be entitled, would be Rs.4,03,000/- (Rs.2,38,000/- + 1,65,000/-). Learned Counsel has tendered across the bar a chart containing the computation on the above basis. The said chart has also been handed over to the learned Counsel for the Respondent Corporation and is reproduced as under :
6. Ms.Bhansali, learned Counsel for the Respondent Corporation, would submit that the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others (supra) refers to only a person who is self employed or a person who is on a fixed salary. Learned Counsel strenuously urges her contention and tenders across the bar, dictionary meaning of the word 'self employed' which reads as under :
"earning income directly from one's own business, trade, or profession rather than as a specified salary or wages from an employer."
She would submit that, admittedly, the deceased was an agricultural labourer and would not fit into either of the description and therefore the decision in the case of National Insurance Company Limited vs. Pranay Sethi and Others (supra) would not apply to the facts of this case, as far as the future prospects are concerned and appropriate orders be passed.
7. Learned Counsel further submits that, in any event, no interest be awarded on the amount of future prospects. She relies upon the decision of the Jammu and Kashmir and Ladakh High Court in the case of National Insurance Company Limited vs. Mst. Aisha Bano and Ors.1 in support of her contention and submits that the same view has also been taken by the Guwahati High Court earlier. Learned Counsel, therefore, submits that National Insurance Company Limited vs. Pranay Sethi and Others (supra) would not apply to the case in hand.
8. I have heard the learned Counsel at length and with their able assistance perused the papers and proceedings and given my anxious consideration to the rival contentions.
9. It is not in dispute that Madhu Gavali died being run over by the ST bus owned by MSRTC on 18th May 2003. Learned Counsel for the MSRTC does not dispute the same. Also, no Appeal has been filed against the impugned judgment and award by the MSRTC.
10. The main contention raised in this Appeal is the applicability of the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others (supra) with respect to future prospects and increase in the amount under the conventional heads. Learned Counsel for the Respondent Corporation has only disputed the application of future prospects and corresponding interest to the case of the Appellants but not the enhancement sought under the conventional heads.
11. Admittedly, the deceased was an agricultural labourer. Learned Counsel for the MSRTC has first tried to submit that an agricultural labourer neither fits into the category of self employed nor being on a fixed salary, and therefore, the concept of future prospects cannot be applied. She has also sought to invoke the dictionary meaning of the word 'self employed'. Firstly, no doubt, self employed would mean earning income directly from one's own business, trade, or profession rather than as a specified salary or wages from an employer, however, in my view, an agricultural labourer is a service provider of agricultural labour and can be said to be engaged in his profession like a carpenter or a cobbler. He has the skill of agriculture labour and is specialized in performing agriculture labour. Therefore, in my view, an agricultural labourer earning income from the profession of agriculture labour is a self employed person. No contrary view or decision has been brought to my notice.
12. The Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others (supra) bestowed their anxious consideration and observed in paragraph 57 thereof that there is really no rationale not to apply the principle with respect to fixing future prospects to the self employed or a person who is on a fixed salary. The Hon'ble Supreme Court has gone on to observe that to follow the doctrine of actual income at time of death and not to add any amount with regard to future prospects to the income for the purposes of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated in Section 168 of the M. V. Act.
13. It would also be pertinent to refer to paragraph 59.4 of the said decision, where the Hon'ble Supreme Court has observed that in case of deceased who was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% is where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation.
14. Paragraphs 52, 57 and 59.4 of the said decision are usefully quoted as under :
"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh vs. Rajbir Singh MANU/SC/0480/2013 : (2013) 9 SCC 54. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- towards loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh vs. Rajbir Singh (supra) refers to Santosh Devi vs. National Insurance Co. Ltd. MANU/SC/0322/2012 : (2012) 6 SCC 421, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.
57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."
15. I am also in agreement with the decision of this Court in the case of Rajendra Datta Halarnkar & Anr. vs. Mrs.Deepali Dinesh Harlarnkar (supra) that once notional income is determined, the benefit towards future prospects will have to be granted. This Court in the case of Rajendra Datta Halarnkar & Anr. vs. Mrs.Deepali Dinesh Harlarnkar (supra) has observed in paragraphs 27, 28 and 35 that the contention raised that no addition can be made towards future prospects in case of notional income is not acceptable. This Court has held that once notional income is determined, benefit for addition towards future prospects will have to be granted. The said paragraphs are usefully quoted as under :
"27. Most of the aforesaid decisions were recently considered by the Hon'ble Supreme Court in Kirti and Another vs. Oriental Insurance Company Limited [MANU/SC/0004/2021 : 2021 ALL SCR 669]. The specific issue as to whether addition towards future prospects should apply to the notional income of a housewife was considered in this matter. The Supreme Court held that once the notional income has been determined, the benefit of addition towards future prospects will have to be granted in terms of the law laid down in National Insurance Co. Ltd. v. Pranay Sethi - MANU/SC/1366/2017 : (2017) 16 SCC 680.
28. The Hon'ble Supreme Court noted that there is a shift in jurisprudence regarding future prospects with the five-Judge Bench decision of the Supreme Court in Pranay Sethi (supra). The Supreme Court extended the benefit regarding future prospects to even self-employed persons, or those on a fixed salary. Taking the above rationale into account, the situation is quite clear concerning notional income determined by a court in the first category of cases outlined earlier, those where the victim was employed but claimants are unable to prove the income before the court. Once the victim has been proved to be employed at some Venture, the necessary corollary is that she would be earning some income. It is clear that no rational distinction can be drawn with respect to the granting of additions due to future prospects merely on the basis that the housemaker's income was not proved, particularly when the court has determined the issue of notional income. Further, when it comes to cases, relating to notional income for non-earning victims, the above principle applies with equal vigour, particularly with respect to homemakers. Once the notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. The Supreme Court referred to its earlier decisions where it has been granting additions towards future prospects even in cases about notional income.
35. In this case, as noted earlier, there is evidence on record based on which the income of Deepali could have been determined at ` 8,000/- to ` 10,000/- per month. However, even if all this evidence is ignored, as has been ignored by the Tribunal, the notional income of Deepali based on her status as a homemaker, in this case, ought to be taken as not merely ` 4,000/- per month, but at least ` 6,000/- per month. To this, applying the law laid down in Pranay Sethi (supra), an addition to the extent of 25% is warranted because the evidence on record suggests that the age of Deepali on the date of the accident was around 44 years. This means that Deepali's income should be taken at ` 8,000/- per month. Applying the prescribed multiplier of 14, the compensation, were Deepali to expire in the accident, would come to ` 13,44,000/-. Since there is no dispute about Deepali having suffered permanent disablement to the extent of 50% on account of the injuries sustained by her in the accident, this amount will have to be determined at ` 6,72,000/-."
16. Ergo, in the facts of the case at hand, the deceased was an agricultural labourer, aged 30 years, and therefore, rightly the future prospects of 50% of notional income would be applicable.
17. With respect to the increase under the conventional heads, which, although are not disputed by the learned Counsel for the Respondent Corporation, I draw support from the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and Others (supra). Paragraphs 20 and 21 are usefully quoted as under :
"20. The MACT as well as the High Court have not awarded any compensation with respect to loss of consortium and loss of estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra). The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant. In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs.15,000 towards Loss of Estate to Respondent Nos. 1 and 2.
21. A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse."
18. In view of above discussion, I have no doubt that the Appellants, who are the legal representatives of the deceased agricultural labourer Madhu Gavali, would be entitled to the future prospects as held in the case of National Insurance Company Limited vs. Pranay Sethi and Others (supra) and the increase under the conventional heads in accordance with the decision of the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and Others (supra). Also, the Appellants, in addition, are entitled to an amount towards loss of consortium of Rs.40,000/- each with 10% enhancement in a span of three years i.e. Rs.44,000/- and funeral expenses of Rs.15,000/- with 10% enhancement that would be Rs.16,500/- and loss of estate of Rs.15,000/- with 10% enhancement that would be Rs.16,500/-. Thus, the Appellants are entitled to consortium amount of Rs.44,000/- each for the three Appellants, that would be amount of Rs.1,32,000/- as against Rs.10,000/- awarded by the Tribunal; to that the funeral expenses of Rs.16,500/- as against Rs.5,000/- as awarded by the Tribunal and loss of estate of Rs.16,500/- as against Rs.2,500/-awarded by the Tribunal, would need to be added, totalling to Rs.1,65,000/-. Therefore, the total amount under the conventional heads would be Rs.1,65,000/-. Mr.Rajure would, therefore, submit that the total compensation that the Appellants would be entitled, would be Rs.4,03,000/- (Rs.2,38,000/- + 1,65,000/-).
19. Coming to the reliance placed by the learned Counsel for the Respondent Corporation on the decision of Jammu and Kashmir and Ladakh at Srinagar High Court in the case of National Insurance Company Limited vs. Mst. Aisha Bano and Ors. (supra), which decision has placed reliance on a similar view taken by the Guwahati High Court in the cases of Khusboo Chirania @ Kanta Chirania vs. Kamal Kumar Sovasaria MANU/GH/1269/2018 : 2018 Supreme (Gau) 966 and Nasima Begum vs. Keramat Ali 2019 Supreme (Gau) 507, while submitting that, if this Court was inclined to consider future prospects, then in any event, compensation granted under the head of loss of future prospects should not be subjected to payment of any interest thereon, I am in agreement with the said submission. I am in agreement with the reasoning given in paragraph 12 of the said decision that future prospects are with regard to probable income to be received in the future and as such, there is no requirement to compensate the claimant by way of future interest for the loss that is to occur in future as the future is yet to happen. The said paragraph 12 is usefully quoted as under :
"12. The third and last contention raised by the learned Counsel for the Appellant is that the portion of compensation granted under the head of loss of future prospects should not have been subjected to payment of any interest thereon. This argument of the learned Counsel carries force due to the fact that the future prospects are relatable to an income to be received in the future and, as such, there could not be any loss to the claimants for the payment of future prospects at the time the deceased met with the accident. The reason for awarding interest on the compensation amount, minus the future prospects, is due to the fact that, though the loss of dependency starts from the date of accident, the compensation amount is computed on the date of the award of the Tribunal, interest is awarded to compensate the loss of money value on account of lapse of time, such as the time taken for the legal proceedings and for the denial of right to utilize the money when due. However, future prospects are with regard to probable income to be received in the future and, as such, there is no requirement to compensate the claimant by way of future interest for the loss that is to occur in the future, as the future is yet to happen. Further, future prospects are given for the entire future and, as such, the claimant is getting compensation in a lumpsum under the future prospects prior to the occurrence of future event(s). Thus, with regard to future prospects, this Court is of the view that there cannot be any interest on future prospects as the same relates to an income to be given in the future. The same view has been taken by the Gauhati High Court in cases reported as 'MANU/GH/1269/2018 : 2018 Supreme (Gau) 966'; and '2019 Supreme (Gau) 507', therefore, the contention of the learned Counsel for the Appellant is accepted that the component of compensation under the head of loss of future prospects is not to be subjected to interest."
20. In view of the above discussion, the following order is passed :
ORDER
(i) The Appellants are entitled to compensation in the manner calculated as per the table in paragraph 5 as above. Accordingly, total compensation is worked out as Rs.4,03,000/- less Rs.1,87,500/- awarded by the Tribunal.
(ii) Except the interest on the compensation under the head of loss of future prospects, as discussed above, let the Respondent Corporation pay an amount of Rs.2,16,000/- along with interest at the rate of 9% per annum on the non-conventional amount and at the rate of 7.5% on Rs.1,65,000/- under the conventional head i.e. for loss of consortium, loss of estate and funeral expenses, with effect from 1st October 2017.
(iii) The Respondent Corporation to deposit the amounts in the Motor Accident Claims Tribunal, Baramati, within a period of four weeks, from the date of uploading of this order, in the manner as contained in the impugned judgment and award.
(iv) The Appeal stands allowed in the above terms. Parties to bear their own costs.
1MAC APP No.33/2022 with connected matters decided on 14th July 2023
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