The New India Assurance Co.Ltd v. Abhijit Madhav Akhave and Ors

Judgment reads as under :- "7. At this juncture, it is necessary to refer to the "doctrine of last opportunity". The said doctrine is said to have emanated from the principle enunciated in Davies vs. Mann (1842) 10 M & W 546, which has often been explained as amounting to a rule that when both parties are careless the party which has the last opportunity of avoiding the results of the other's carelessness is alone liable. However, according to Lord Denning it is not a principle of law, but a test of causation. (See Davies v. Swan Motor Co. (Swansea) Ltd., ) (1949) 2 KB

¶291Though in some decisions, the doctrine has been applied by courts, after the decisions of the House of Lords in Volute (1922) 1 AC 129, and Swadling v. Cooper (1931) AC 1, it is no longer to be applied. The sample test is, what was the cause or what were the causes of the damage. The act or omission amounting to want of ordinary care or in defiance of duty or obligation on the part of the complaining party which conjointly with the other party's negligence was the proximate cause of the accident, renders it one to be the result of contributory negligence." (emphasis supplied)

¶22In the present proceedings the driver of the truck has admitted that he had seen Maruti Van from the distance of 600 mtr. and he was driving at a speed of 30 to 35 Km per hour, admittedly he could have applied the breaks to slow down his vehicle and or to stop his vehicle. The width of the road was 34 ft. and there was additional 5 ft. side white plate, therefore there was opportunity for him to slow down and go towards his left and avoid the accident. The offending truck was a big vehicle compared to Maruti Van. Therefore, the degree of precautions and responsibilities was more on the offending truck. This coupled with the fact that the lights of Maruti Van were on, at the time of accident, therefore, the findings recorded in the judgment of the Supreme Court in the case of Laxman Iyer & Ors. (supra) are squarely applicable to the present proceedings and I hold that the driver of the offending vehicle was negligent and rash while driving of the offending vehicle and due to which accident occurred and 5 persons , including the Mahadev Dattaraya Akhave lost their lives. B). Quantum :-

¶23The MACT has granted the total compensation of Rs.37,48,500/-to the claimants in the following manner :-a)Total earnings -Deductions -Thus Net pay taken -Hence, monthly salary -Rs.77,255/-p.m. Rs.43,323/-Rs.34,023/-Rs.36,000/-p.m. b) 1/3 personal deduction Rs.36,000/-minus Rs.12,000/-Therefore, total Rs.24,000/-per month. c) Future Prospects was not granted Nil d) Multiplicands : Hence Multiplier of '13' was applied. Rs.24,000/-x 12 = Rs.2,88,000/-p.a. Rs.2,88,000/-x 13 = Rs.37,44,000/-e) Loss of estate Rs.2,500/-f) Funeral Expenses Rs.2,000/-Total Rs.37,48,500/-

¶24In the present proceedings, the Claimants have produced on record the last drawn salary certificate (Exhibit – 78) of the deceased. The said certificate shows that last drawn salary of the deceased is Rs.1,20,487/- ( i.e. Rs.77,225 + Rs.43,232/- deductions = Rs.1,20,487)

¶25Supreme Court in the case of Manasvi Jain vs. Delhi Transport Corporation Limited, reported in (2014) 13 SCC 22 held in paragraphs Nos. 8 and 9, as under:- "8. This Court in Shyamwati Sharma v. Karam Singh (2010) 12 SCC 378, while considering the issues of deduction of taxes, contributions, etc., for arriving at the figure of net monthly income, held that : (SCC p. 380, para 9) "9... while ascertaining the income of the deceased,any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans, etc. should not be excluded from the income. The deduction towards income tax/ surcharge alone should be considered to arrive at the net income of the deceased". (emphasis supplied)

¶9In the present case, there Is no dispute about of the salary of the deceased. As per salary certificate, his monthly income, and deductions are as under :- Monthly income Rs.26,950.00 Deductions

Provident fund 8000.00 House Rent

525.00 GIS

120.00 Income tax 2500.00 So, from the above table, it is clear that except an amount of Rs.2500 towards income tax, rest of the amounts were voluntarily contributed by the deceased for the welfare of his family. Considering the decision of this Court in Shyamwati Sharma (2010) 12 SCC 378, in our opinion, except contribution towards income fax, the other voluntary contributions made by the deceased, which are in the nature of savings, cannot be deducted from the monthly salary of the deceased to decide his net salary or take-home salary. Hence, the take-home salary of the deceased comes to Rs 24,450 which can be rounded to Rs 25,000".

[Emphasis Supplied] Therefore, Supreme Court in clear terms in the above Judgment held that deductions towards IT and Professional Tax, etc. should not be excluded from the income of the deceased while calculating the income.

¶26Considering the law as laid down by Supreme Court Manasvi Jain (supra), except the amount towards IT and Professional Tax rest of the amount from the salary were voluntarily contributed by the deceased for welfare of his family as savings, and therefore, it cannot be deducted from his monthly salary. So also the ratio laid down by the Supreme Court in the case of Pranay Sethi (supra), it is clearly stated in the para 44 that, "Income means actual income less the tax paid" Para 44 of Pranay Sethi (Supra) is reproduced as under ; "At this stage, we must immediately say that insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and "income" means actual income less than the tax paid. The multiplier has already been fixed in Sarla Verma which has been approved in Reshma Kumari with which we concur." [Emphasis Supplied] According to the last drawn salary certificate of the deceased Madhav, there was deduction of total sum of Rs.18,483/- towards professional tax and the income tax. Hence the net salary of the deceased Madhav comes to Rs.1,02,004/- p.m.(i.e. Rs.1,20,487/- Minus Rs.18,483/-) Hence,I hold the MACT Court has wrongly considered the only basic pay of Rs.77,255/- and deducted Rs.43,232/- of the deceased Madhav out of which Professional tax and income tax needs to be only deducted. Hence, in the present proceedings I hold that the net salary of the deceased was Rs.1,02,004 /- per month. [(Rs.77,255+ Rs.43,232/- = Rs.1,20,487 Rs.1,20,487/- (-) Rs.18,483/- = Rs.1,02,004/- per month] Personal Deductions

:-

¶27As deceased lost his wife in the said accident, his legal heir of his would be original claimants i.e. two sons and mother. During the pendency of these First Appeals, the mother of the deceased died. Therefore, her legal heir would be the Original Claimant No.1 and 2. Hence, as per the ratio laid down in Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr., reported in (2009) SCC 121, I hold that personal deduction should be at the rate of 1/3. Since the salary of deceased is considered as Rs.1,02,004/- p.m. there could be deduction of Rs.34,001/-p.m. i.e. 1/3rd. Hence, after deduction the Net salary of the deceased is held by me as Rs.68,003/- per month. Future Prospects

:

¶28The Claimants were able to prove that the deceased was 49 years 11 months and 12 days of age at the time of his death. In the proceedings the claimants have produced on record the S.S.C. certificate which proves the age of the deceased Madhav Dattaraya Akhave. The Supreme Court in the Judgment of Pranay Sethi (supra), IN Paragraph 59.3 held as under:- "While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case of the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax".

[Emphasis Supplied] Therefore, considering the age of the deceased as 50 years and his salary after deduction as Rs.68,003/- per month, additional 30% increase in the salary on account of Future Prospects comes to Rs.20,400/-. Therefore, the total income of the deceased would be Rs.68,003 + Rs.20,400 = Rs.88,403/- per month. Multiplier :

¶39As the salary of the deceased is considered as Rs.88,403/- per month. Yearly income would be Rs.88,403/- x 12 months = Rs.10,60,836/- per year. The tribunal has considered multiplier of "13", based on the age of dependent. Supreme Court in case of Sarla Verma (Smt.) & Ors. (supra) has held in paragraph 42 as under : "We, therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas), Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years".

(Emphasis supplied) Considering the Multiplier formula laid down by the Supreme Court and considering the age of the deceased as 49 years at the time of his death, he falls under the category of 46 to 50 years, therefore the multiplier of "13" will be applicable. The amount of Rs.10,60,836/- per year calculated above has to be multiplied by "13". Hence, the said amount would be Rs.1,37,90,868/-.(Rupees One Crore,Thirty-Seven Lakhs, Ninety Thousand, Eight Hundred and Sixty-Eight/-) Conventional Head :

-

30.1 Consortium for the original claimants no.1,2 and 3 of the deceased was not granted by the MACT. The Supreme Court in the judgment of Pranay Sethi (supra) has held that the amount of Rs.40,000/- should be granted under the head of consortium. Further in the Judgment of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram & Ors. reported (2018) 18 SCC 130 it is held that the amount of Rs.40,000/- on account of consortium should be granted to each of the Claimants.

30.2 Supreme Court in the case of Pranay Sethi (supra) has further clarified that there has to be 10 % increase after every 3 years on the amount of Rs.40,000/-. Since the Judgment in case of Pranay Sethi (supra) was delivered on 31 October, 2017, the amount of Rs.40,000/-is considered as on that date. The present proceedings are decided today in the month of November, 2023, which is 6 years after the judgment in case of Pranay Sethi (supra) delivered by the Supreme Court, hence there will be rise of 10% after every 3 years. Therefore, on the amount of Rs.40,000/-; an amount of Rs.8,400/-more would be payable to each of the Claimants (two sons and mother of the deceased). Therefore, on account of consortium total amount of Rs.48,400/-would be payable to each of the Claimants. Therefore, on account of consortium the amount payable would be Rs.14,45,200/-

30.3 On account of Loss of Estate, the MACT had granted Rs.2,500/-. In the Judgment of Pranay Sethi (supra) Supreme Court has granted Rs.15,000/- plus 10% increase on every 3 years. Since the present proceedings are decided today after a gap of 6 years after the delivery of judgment in case of Pranay Sethi (supra) by the Supreme Court, the loss of estate in present proceedings is calculated at Rs.15,000/- plus 10% rise on Rs.15,000/- for every 3 years. Therefore, the total amount of Rs.18,000/- on the account of loss of estate, will be payable to each of the Claimant.(i.e. Rs.18,000/- x 3 = Rs.54,000/-)

30.4 As far as funeral charges are concerned, the MACT Court has granted a meagre sum of Rs.2,000/-. The Supreme Court in the case of Rajwati and Ors vs. United India Insurance Company Limited & Ors. reported in 2022, ACJ 2754 has granted funeral expenses of Rs.20,000/-. Paragraph 22 of the said judgment reads as under :- "22. The deceased left behind five dependants, i.e., the present Appellants. In view of this, the grant of Rs. 40,000/- by the Learned Tribunal towards loss of consortium is insufficient in our view, and deserves interference. A three-Judge Bench of this Court in United India Insurance Co. Ltd. v. Satinder Kaur 2020 ACJ 2131 (SC), has awarded loss of spousal consortium at the rate of Rs.40,000/- and for s loss of parental consortium to each child at the rate of Rs.40,000/-. The compensation under these heads also needs to be increased by 10 per cent after every three years. Accordingly, the grant of Rs. 40,000/- towards loss of consortium is increased to Rs. 44,000/- to each Appellant, amounting to a total of Rs. 2,20,000/-. Along with this, Rs. 15,000/- each under the heads of 'funeral expenses' and 'loss of estate' is also very meagre. In our considered opinion, an amount of Rs. 20,000/- is liable to be paid towards funeral expenses. Similarly, award of Rs. 15,000/- towards 'loss of estate' is liable to be increased to Rs. 20,000/-." (Emphasis supplied) Therefore, I grant a sum of Rs.20,000/- on account of funeral expenses.

30.5 Consequently, the total amount payable on account of Conventional Head would be Rs.2,19,200/-. Total Amount Of Compensation

:-

¶31Rs.1,37,90,868/- (+) Rs.2,19,200/- = Rs.1,40,10,068/-.

¶32The amount already granted in the award is Rs.37,48,500/- which has to be deducted from the above amount of Rs.1,40,10,068/-. The Tribunal has granted higher rate of interest @ 9% per annum.

¶33Thus, I hold that the Claimants are entitled to additional compensation of Rs.1,02,61,568/- (Rs.1,40,10,068/- minus Rs.37,48,500/-) along with interest thereon at the rate of

7.5% per annum from the date of filing of the claim petition (i.e. 28 May, 2003) till realization, as per the ratio laid down in the Award dated 28 September 2005. However, since the Claimant No.3 has died, (who was the mother of the deceased and grandmother of the Original Claimant No.1 and 2) her share would be given in equal proportion to the Claimant No.1 and 2.

¶34In view of above, appeal of the Claimants i.e. First Appeal No.549 of 2006 stands partly allowed and appeal filed by the Insurance Company i.e. First Appeal No.286 of 2006 is hereby dismissed. There shall be no order as to costs.

¶35It is submitted that the Insurance Company has already deposited Award amount in the concerned MACT. If the Claimants have already withdrawn certain amount from the amount deposited, the said amount already withdrawn should be adjusted while allowing the Claimants to withdraw the claim amount as decided by me today. The said amount should be granted as per the ratio laid down in the impugned judgment dated 28 September 2005.

(RAJESH S. PATIL, J.)

vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.286 OF 2006 The New India Assurance Company Limited, Mata Building, Near Civil Hospital, Opposite Ambedkar Road, Sangli ...Appellant / (Ori.Opponent No.2) ….Versus…. 1. Abhijit Madhav Akhave, Age – 20yrs, Occupation – Education. 2. Davadutta Mahadev Akhave, Age – 14 yrs, Occupation – Education. 3. Smt. Leela Dattaraya Akhave, since deceased deleted having L.Rs. - Respondent Nos.1 and 2. All Residents of A-27, Reliance Housing Complex, At post Mohopada Taluka - Khanapur, District Raigad. 4. Mahadeo D. Dabade, Age – Major, Occupation – Business, Resident of Priya Complex, 3rd Floor, Room No.2, Opposite Shriram Talkies, Ulhasnagar. ...Respondents WITH FIRST APPEAL NO.549 OF 2006 1. Abhijit Madhav Akhave, Age – 22 yrs, Occupation – Service. VASANT ANANDRAO IDHOL Date: 2024.03.30 13:24:34 +0530 2. Devadutta Madhav Akhave, Age – 16 yrs, Occupation – Education. 3. Smt. Leela Dattaraya Akhave, since deceased deleted having L.Rs. - Appellant Nos.1 and 2. All Residing at A/27, Reliance Housing Complex, At & Post Mohopada-Taluka, Khanapur, District Raigad. ...Appellants ...(Original Applicants) ...Versus... 1. Mahadeo D. Dabade, Age – Major, Occupation – Business, Resident of Priya Complex, 3rd Floor, Room No.2, Opposite Shriram Talkies, Ulhasnagar. 2. The New India Assurance Company Limited, Mata Building, Near Civil Hospital, Opposite Ambedkar Road, Sangli. ...Respondents … (Ori.O.Ps.) Mr.Tejpal S. Ingale with Mr.Abhishek T. Ingle and Ms.Priyanka Babar for the Appellant in FA No.549 of 2006 and for the Respondent Nos. 1 to 3 in FA No.286 of 2006. Ms.Poonam Mittal for the Appellant in FA No.286 of 2006 and for Respondent No.2 in FA No.549 of 2006. CORAM : RAJESH S. PATIL, J. DATE : 6TH & 7 TH NOVEMBER , 2023. ORAL JUDGMENT :- 1. First appeal No.286 of 2006 is filed under Section 173 of the Motor Vehicle Act, 1988 by the Insurance Company and First Appeal No. 549 of 2006 filed by original Claimants, both challenging the judgment and award dated 28 September 2005, passed in Claim Petition No.151 of 2003 by Member MACT, Sangli. FACTS 2. On 28 July 2002 at about 2.00 p.m., in the afternoon, on Sangli-Kolhapur Road near Akashwani Kendra, Sangli, one captain Shailendra Karandikar was driving Maruti Van Bearing Registration No. KA-23/M-466. His wife (Sonali), two months old son Sumedh, Vaijayanti Madhav Akhave (Maternal aunt of Sonali), Madhav Dattatraya Akhave (husband of Vaijayanti) and Devdutta Madhav Akhave minor son of Vaijayanti and Madhav Akhave, were travelling along with him. They were returning from Narsobawadi to Sangli. The Maruti Van was proceeding South to North direction. The owner of the Maruti Van was a family friend Mr. Sanjay Ganesh Patankar resident of Sangli. It is undisputed that captain Shailendra Karandikar was holding valid driving license on the date of the accident. 3. As Maruti Van driven by captain Shailendra Karandikar proceeded towards South to North Akashwani Kendra, truck bearing No. MH-05-1420 (for short "offending truck") came from the opposite direction from North to South. There was collusion between offending truck and Maruti Van driven by captain Shailendra. As such, accident took place and in the said accident, captain Shailendra, his wife Sonali, son Sumedh, Madhav Akhave died on the spot and Vaijayanti (maternal aunt of Sonali) died in hospital. However, Devdutta Akhave, the son of Madhav Akhave and Vaijayanti Akhave survived. 4. Five claim Petitions were filed in total, arising out of said accident. The present proceedings is pertaining to the death claim of the deceased Madhav Dattaraya Akhave. Motor Accident Claim Petition No.151 of 2003 was filed by three Claimants (being, the two sons and mother of the deceased Madhav Akhave), in MACT Sangli claiming compensation amount of Rs.1,44,87,000/- with interest at the rate of 18% per annum from the date of filing of the Claim Petition from Respondents jointly and se