New India Assurance Co. Ltd. vs Abulrahim Siddiki and Others

H.K. Rathod, J.—Heard learned Advocate Ms. Megha Jani for appellant New India Insurance Company and learned Advocate Mr. KK Nair for respondent insurance company as well as learned Advocate Mr. AG Vyas for respondents original claimants in these appeals and civil applications.

By filing these appeals, appellant insurance company has challenged common award passed by claims tribunal, Ahmedabad in claim petition No. 1387 of 1998 with claim petition No. 983 of 1998 decided on 22nd April, 2002. In Claim Petition No. 1367 of 1998, claims tribunal directed opponents No. 1,2 and 3 jointly and/or severally to pay amount of Rs. 6,30,000.00 to claimants with costs and 10 per cent interest. In Claim Petition No. 983/98, claims tribunal has quantified liability of opponent No. 5 to the extent of 30 per cent and that of opponent No. 3 to the extent of 70 per cent and accordingly directed them to pay total compensation of Rs. 6,90,000.00 as per their liability quantified by claims tribunal with costs and 10 per cent interest. In Claim Petition No. 1367 of 1998, claims tribunal has awarded Rs. 9,00,000.00 total compensation but after deducting 30 per cent towards negligence of deceased, directed opponents to pay Rs. 6,30,000.00 with costs and 10 per cent interest. In another claim petition, claims tribunal awarded Rs. 6,90,000.00 against opponent No. 3 and 5.

It is necessary to note some brief facts of incident. On 3rd July, 1997, at about 9.30 a.m., deceased was going by his truck No. GJ.1.V.6998 and was passing on by-pass road near Divagam near Vankodi Naka at relevant time, offending truck No. 786 of opponent No. 1 got punctured in tube of tyre, as a result, offending truck dashed against said truck No. 6998 of deceased, as a result, deceased as well as conductor (cleaner) died on spot, occupying truck No. 6998.

On behalf of driver, claim petition No. 983 of 1998 was filed and on behalf of conductor, claim petition No. 1367 of 1998 was filed before claims tribunal. Before claims tribunal, respondents No. 1 and 2 were served but they remained absent. Opponent No. 3 Insurance Company filed its written statement at Exh. 41. On behalf of Opponent No. 5, learned advocate Mr. Janardan appeared and filed written statement at Exh. 41. In written statement filed at Exh. 41 by opponent No. 3, it is clearly stated that accident has not taken place on account of rash and negligent driving of truck No. MP.06.0786 but on account of negligence on part of deceased Istiyak Ahmad who was driving his truck No. GJ.1.V.6998. Time, date and place of accident as alleged by claimants has also been denied. Averments as regards income and age of deceased were also denied. It was clearly stated before claims tribunal that offending vehicle of opponent No. 2 is not liable for accident but deceased was driving his truck and himself was liable for contributory negligence. Application u/s 170 of MV Act was preferred by opponent No. 3 before claims tribunal which was granted by claims tribunal as per order below Exh. 59 and such application preferred by learned Advocate Mr. AR Janardan on behalf of opponent No. 5 was also granted by claims tribunal by passing order below Exh. 60. Thereafter, issues have been framed by claims tribunal at Exh. 57.

This accident occurred between two trucks, truck bearing registration No. MP.06.E.0786 and truck bearing registration No. GJ.1.V.6998. Driver and conductor of truck No. 6998 died but driver and conductor of truck No. 786 not died.

Claims tribunal has decided question of negligence and has come to conclusion that driver of truck No. 786 is negligent to extent of 70 per cent and driver of truck No. 6998 is negligent to extent of 30 per cent and accordingly, apportionment was made by claims tribunal. Appellant - insurance company of truck No. 786 is challenging question of negligence as decided by claims tribunal and is also challenging quantum decided by claims tribunal. During pendency of first appeals, amendment in memo of appeal was made by appellant insurance company which was allowed and accordingly ground (n) was added to memo of appeal by amending memo of appeal as per order of this Court dated 28.4.2003, on 1st May, 2003. In view of amendment, contention was raised by appellant that opponent No. 1 and 2 who happened to be driver and owner of vehicle insured with appellant have not been served and endorsement in judgment shows that they are served but it is not reflecting correct position. It was also contended that when driver and owner of vehicle insured with appellant insurance company are not served and are not served and not heard, then, no award can be passed against them. When no award can be passed against insured, insurance company cannot be made liable to pay any amount under contract of indemnity which is a policy of insurance. Such contention was raised by advocate for appellant before claims tribunal that driver and owner are not served and, therefore, opponent No. 3 insurance company cannot be held liable. Aforesaid contention is recorded by claims tribunal in paragraph 8 of judgment. However, claims tribunal has not dealt with said contention and, therefore, it is submitted before this Court that claims tribunal has erred in holding insurance company liable to indemnify insured. To verify this contention, learned Advocate Ms. Megha Jani has verified record and proceeding which have been called by this Court and after considering Record and Proceeding in that regard, specific endorsement is made that opponents No. 1 and 2 both have received notice issued by claims tribunal and acknowledgement of both opponent No. 1 and 2 is annexed to original records and proceedings and, therefore, aforesaid contention raised by learned advocate Ms. Megha Jani by way of amendment as referred to above does not survive in light of original acknowledglement found from records and proceedings. Therefore, this Court has not dealt with aforesaid contention while deciding these appeals.

Learned Advocate Ms. Jani submitted that FIR was filed by PSI GR Ahwad Tarpoli. She submitted that in entire FIR, blaim was made against driver of truck No. 6998 who died in accident. FIR is also lodged against driver of said truck No. 6998. She also submitted that even criminal prosecution was also lodged against driver of truck No. 6998 and yet, 30 per cent negligence has been decided by claims tribunal without any evidence on record. She has also submitted that claims tribunal has not properly dealt with FIR filed by PSI and, therefore, claims tribunal has committed gross error in deciding question of negligence and also not properly appreciated statement of Raju Rambhuvan Kashyap working in Shivshakti Motor Garage whose statement also suggests that because of rash and negligent driving of driver of truck No. 6998, accident occurred. In support of that, she referred to page 8 where finding is given by claims tribunal. Relying upon paragraph 9, page 8, she submitted that when there is head on collision by two offending vehicles, both are trucks, then, normally, 50:50 per cent negligence is to be decided between both drivers. She submitted that claims tribunal has come to conclusion that accident has taken place by head on collision between two offending vehicles which are trucks, and then apportionment is made contrary to FIR and Panchanama. In para 14, without giving any reasons, claims tribunal has straightway come to conclusion that 30 per cent negligence is of driver of truck No. 6998 and 70 per cent negligence is of driver of truck No. 786. She also read before this Court FIR as well as panchanama and pointed out width of road where accident had taken place and position after accident occurred was also pointed out by her. In short, her submission is that in facts of this case, considering head on collision between both trucks, 50:50 negligence ought to have been held by claims tribunal which has not been done and, therefore, claims tribunal has committed error in deciding 30 per cent and 70 per cent negligence of truck No. 6998 and 786.

She also raised contention in respect of quantum decided by claims tribunal in respect of driver as well as conductor. For that, she has placed reliance on apex court decision in case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , in respect of personal and living expenses. Therefore, para 25 to 32 of said apex court decision are quoted as under:

We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiableand likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may beso. No claimant would admit that the deceased was a spendthrift, even if he was one.

It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience. In fact one-third deduction, got statutory recognition under Second Schedule to the Act, in respect of claims u/s 163A of the Motor Vehicles Act, 1988 (''MV Act'' for short). But, such percentage of deduction is not an inflexible rule and offers merely a guideline.

In Susamma Thomas, it was observed that in the absence of evidence, it is not unusual to deduct one-third of the gross income towards the personal living expenses of the deceased and treat the balance as the amount likely to have been spent on the members of the family/dependants.

In U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, this Court held that if the number of dependents in the family of the deceased was large, in the absence of specific evidence in regard to contribution to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. By this method, two units is allotted to each adult and one unit is allotted to each minor, and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. This Court gave the following illustration : (Trilok Chandra case, SCC p. 370, para 15)

15 Male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3500. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for and adult and one unit for a minor. Thus X and his wire make 2+2=4 units and each minor one unit i.e. 3 units in all, totaling 7 units. Thus the share per unit works out to Rs. 3500/7=Rs. 500 per month. It can thus be assumed that Rs. 1000 was spent on X. Since he was a working member some provision for his transport and out-of-pocket expenses has to be estimated. In the present case we estimate the out-of-pocket expense at Rs. 250. Thus the amount spent on the deceased X works out to Rs. 1250 per month per month leaving a balance of Rs. 3500-1250=Rs.2250 per month. This amount can be taken as the monthly loss of X''s dependents.

In Fakeerappa and Another Vs. Karnataka Cement Pipe Factory and Others, while considering the appropriateness of 50% deduction towards personal and living expenses of the deceased made by the High Court, this Court observed:

What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction.

In view of the special features of the case, this Court however restricted the deduction towards personal and living expenses to one-third of the income.

Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.

Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father.

Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.

She also raised contention that in case of death of married and earning person, 1/3rd deduction is normally considered to be reasonable. However, in this case, claims tribunal has deducted only 1/5th in case of driver and 1/4th in case of conductor and then on that basis, decided dependency and, therefore, same is on higher side looking to family members of both deceased. She also raised contention that 1/3rd deduction is not taken by claims tribunal and 1/5th as well as 1/4th is on higher side and, therefore, claims tribunal has committed gross error in deciding quantum of compensation. Except that, no other submission is made by learned Advocate Ms. Jani for appellant.

Learned Advocate Mr. KK Nair appearing for respondent No. 5 insurance company has fairly submitted that respondent No. 5 insurance company has not challenged aforesaid common award made by claims tribunal, meaning thereby, respondent No. 5 insurance company has accepted common award made by claims tribunal.

Learned Advocate Mr. AG Vyas appearing for respondents original claimants has submitted that claims tribunal has rightly decided claim petitions based on legal evidence and has rightly appreciated evidence on record and in doing so, claims tribunal has not committed any error which would require interference of this Court. He also submitted that quantum has also been rightly determined by claims tribunal considering family memers those who are dependent upon income of deceased and no counter or rebuttal evidence was produced in respect of fact that claimants are not dependent upon income of deceased. He submitted that there is no straight jacket formula which can be applied for deduction of personal expenses and it depends upon facts and circumstances of each case and in facts and circumstances of present case, claims tribunal has rightly worked out figure of personal expenses of deceased and has rightly deducted 1/4th and 1/5th personal expenditure in respect of deceased and therefore, no interference is required. He further submitted that question of negligence is also rightly decided by claims tribunal. He also submitted that looking to panchanama which is giving clear picture of stationary condition of both truck which has been available after accident, naturally it will not give correct and clear picture of accident, how it had happened between two offending vehicles. He submitted that in case of driver and cleaner of truck No. 6998, both died in said accident and, therefore, their evidence would naturally not be available but driver and conductor of another offending vehicle being truck No. 786 were very much available and yet, they have not been been examined by appellant and they have not stepped into witness box before claims tribunal explaining how accident occurred between both offending vehicles, so, claims tribunal has rightly drawn adverse inference against driver of truck No. 786. He also submitted that looking to panchanama, truck No. 786 was having excessive speed and there was rash and negligent driving with uncontrollable speed and, therefore, immediately vehicle could not be stopped and 10 ft. fresh brake marking were found as per panchanama which suggests excessive speed of truck No. 786 and therefore, claims tribunal has rightly made apportionment between two offending vehicles and in doing so, no error is committed requiring interference of this Court and, therefore, as per his submission, there is no substance in these appeals and same are therefore required to be dismissed with costs.

I have considered submissions made by learned advocates for respective parties. I have also perused impugned common award made by claims tribunal. Exh. 49 is FIR and Exh. 50 is panchanama of scene of offence. Xerox copy of both documents have been supplied to this Court by learned advocate Ms. Megha Jani for appellant insurance company. I have perused both documents. Considering FIR as it is, it is clear that complainant of said FIR was not an eye witness of accident, meaning thereby, he was not present at the time when accident occurred between two offending vehicles trucks. He was not witness to said accident. Panchanama was carried out in his presence. Front portion of both trucks was completely smashed and complainant has made inquiry from driver Nasruddin Gafurkhan and another driver Ramesh D. Sharma both residing in State of Madhya Pradesh and according to them, in their truck, they were coming from Dana Bandar with white powder like salt while going through bypass road Dhokpur Rajasthan at about 9.30 a.m. near Divagam village, one truck No. 6998 was coming from opposite side. After over taking another truck going ahead, dashed to their truck and accident has occurred. Witness Rambhuvan Kashyap working in Shivshakti Motor Garage also stated same facts that said accident has taken place because of error on the part of driver of said truck No. 6998. In panchanama dated 3rd July, 1997, width of road is shown which is of about 60 ft. and there was fresh brake marking of truck No. 786 upto 10 ft. on the place of accident and accident occurred between both vehicles truck from western side of middle portion of road. Both sides north and south 5 ft. kacha road was available. Accordingly, panchanama was carried out on same day when accident occurred at about 13.40 hours to 14.20 hours. Looking to aforesaid two documents, claims tribunal has considered one more important aspect that driver of truck No. 786 who was present at the time when accident occurred and he was one of driver of truck No. 786 has not come forward into witness box for explaining situation on the spot, how this accident has occurred and in view of that, adverse inference was drawn by claims tribunal against said driver of truck No. 786. Claims Tribunal has also considered that merely relying upon complaint filed by PSI at Exh. 49, deceased cannot be made solely responsible for accident because said PSI is not an eye witness and driver of truck No. 786 who was an eye witness is not examined and he has not stepped into witness box. This being very much important fact, has been rightly appreciated by claims tribunal that due to heavy impact and also because of uncontrollable speed of vehicle being truck No. 786, two persons died one driver and another cleaner/conductor of truck No. 6998 as dashing given by truck No. 786 was having such a great impact that two persons immediately lost their lives on the spot. PSI who filed complaint was not examined before claims tribunal. Ordinarily, FIR is not admissible in evidence unless it becomes part of record. Appellant insurance company was relying upon FIR and, therefore, it was duty of appellant insurance company to see that complainant is examined before claims tribunal but complainant was not examined before claims tribunal and, therefore, claims tribunal has rightly appreciated evidence on record. Claims tribunal has also come to conclusion that looking to documentary evidence as well as oral evidence. Complainant PSI was relying upon statement of one witness Rambhuvan Kashyap working in Shivshakti Motor Garage but said witness has also not been examined by appellant insurance company before claims tribunal, therefore, it is not an accident occurred due to composite negligence of both driver but it is a contributory negligence of deceased driver of vehicle No. 6998. It is well established principle of law that in case of composite negligence, normally, apportionment is to be made 50:50 per cent but in case of contributory negligence, it should have to be decided by claims tribunal on the basis of evidence on record. I have considered FIR and Panchanama. Truck No. 6998 was overtaking truck going ahead and at that time, considering width of road 60 ft., opposite truck No. 786 came from opposite direction and ought to have foreseen that if he does not act as a reasonable reasoned man, he might himself be hit and he must take into account possibility of others being careless. So, driver of truck No. 786 was having an opportunity to control his vehicle moment truck No. 6998 coming from opposite side overtaking one ahead vehicle is seen and at that time, he could have taken his vehicle on extreme left side and thereby, he could have avoided accident. Such care and caution has not been taken by driver of truck No. 786 though opportunity was available to him and, therefore, considering 10 ft. fresh brake marking of vehicle No. 786 which was suggesting uncontrollable speed not able to control it even after seeing opposite vehicle coming from and ultimately it has been dashed with heavy impact which has resulted into death of two persons conductor and driver of truck No. 6998.

This aspect has been considered by apex court in case of A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, In said decision, in case of contributory negligence, test has been decided by apex court. It was held that of the two, who was driving his vehicle negligently and rashly and in case of both were so doing, who was more responsible for the accident and who of the two had the last opportunity to avoid the accident are relevant facts. It was held that plaintiff can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account possibility of others being careless. Relevant discussion made by apex court in para 11 and 13 of said decision are reproduced as under:

To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who were more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff''s fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff''s part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might be hit himself and he must take into account the possibility of others being careless.

In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivershimself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.

In case of K. Hemlata as referred above, apex court has considered earlier decision in case of T.O. Anthony Vs. Karvarnan and Others, Relevant discussion made by apex court in para 6,7 and 8 is reproduced as under:

''Composite negligence'' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.

Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of ''composite negligence'' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.

It is not in dispute that the Mahazar Ex. P-2 showed that the accident spot was at a distance of 2.26 meters from the Southern edge of the tarred road and 4.79 meters from the Northern edge of the tarred road. If the appellant was proceeding from Palakkad to Trichur (from East to West) and the accident occurred at a distance of 2.2 meters from the southern edge of the road and 4.79 meters from the Northern edge of the road, the inference is that the appellant was on the right side of the road and the private bus came partly to the wrong side of the road. But the fact that there was a head-on collision could not be ignored. The evidence shows that the appellant was not diligent, as he neither slowed down the bus nor swerved to his left, on seeing the oncoming bus. On the facts and circumstances we are of the view that the appellant was also partly responsible for the accident and we fix the responsibility at 25% on the appellant and 75% on the first respondent.

In facts of this case, claimants who are dependents of driver and conductor died in accident, are claiming compensation, therefore, it is a case of contributory negligence and not a case of composite negligence, therefore, contention raised by learned Advocate Ms. Jani for appellant that normally, in such cases, where there is head on collision, 50:50 per cent negligence is to be decided, such contention, looking to facts of this case as considered by claims tribunal, cannot be accepted because it is not a case of composite negligence but it is a clear case of contributory negligence of driver of truck No. 6998. Therefore, contention raised by learned advocate Ms. Jani for appellant is rejected. Finding given by claims tribunal on that issue relying on evidence on record FIR Exh. 49 and panchanama Exh. 50 and considering fact that PSI who has lodged complaint has not been examined, one witness Rambhuvan Kashyap working in Shivshakti Motor Garage has also not been examined and driver of vehicle truck No. 786 who was an eye witness was not examined before claims tribunal by appellant insurance company and no rebuttal evidence was produced by appellant before claims tribunal, such finding cannot be considered to be baseless and claims tribunal has rightly given such finding and has rightly drawn adverse inference against driver of truck No. 786 and in doing so, no error has been committed by claims tribunal which would require interference of this Court. Therefore, contentions raised by learned advocate Ms. Jani for appellant in that regard are rejected.

In respect of contention raised by learned advocate Ms. Jani for appellant about 1/3rd deduction to be made towards personal expenses of deceased, in case of Sarla Verma as referred to above, para 25 to 32 of which has been relied upon by learned Advocate Ms. Jani, in same decision, apex court has considered that it is very difficult to have clear evidence to show actual expenses of deceased, therefore, it is also very difficult to prescribe or standardize deduction towards personal expenses of deceased who has become victim of such accident, therefore, if number of dependents in family was large, in absence of specific evidence on record about contribution, court may adopt unit method for arriving at the contribution of deceased to his family. By this methods, two units are allotted to each part and one to each minor and total number of units are to be decided. Then, income is to be divided by total number of units. This unit method is also given in case of U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, which has been referred to and relied upon by apex court in case of Sarla Verma (supra). After all, such question is to be considered on the basis of legal evidence available on record before claims tribunal. In both cases of driver and conductor, father was examined who gave clear evidence that person who died was main person in family who was maintaining entire family. Looking to age of father in case of driver, 70 years, and looking to age of father in case of cleaner/conductor, 70 years, naturally, father was not earning member in family. Rest of persons in case of female are having occupation of household work and in case of male members, having nil occupation and they were dependents on income of deceased in both cases. No rebuttal evidence was produced by appellant on record before claims tribunal. Not only that but father was also not cross examined by advocate for appellant insurance company before claims tribunal, meaning thereby, whatever suggested by father in his oral evidence before claims tribunal has gone uncontroverted and unchallenged and so, in absence of such evidence from side of appellant, claims tribunal has rightly made deduction of 1/5th towards personal expenses of deceased in case of driver who was maintaining family of six members and in case of conductor, 1/4th looking to four members in family maintained by him. Recently, this aspect has been considered by apex court in case of National Insurance Co. Ltd. v. Kimlibai and Ors. 2009(6) ST 106 where case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, has been relied upon. Following observations made by apex court in para 14, 16 and 17:

Appellant-insurance company is in appeal challenging the impugned award and order primarily on the following two grounds:

(i)that the amount enhanced by the High Court is excessive and exorbitant, more so, without there being any basis, it has been assessed that deceased could have earned Rs. 100/- per day; and

(ii) that deduction of only 1/4th towards his personal expenses from his total income has wrongly been allowed and it should have been 1/3rd of his total income.

xxx xxx

It could not be disputed before us that deceased was working as a carpenter. Thus, obviously working as such, even in the year 1997 he could have comfortably earned Rs. 100/- per day. This has also been admitted by P.W.3 with whom the deceased was employed that he was being paid Rs. 100/- per day. Even if we assume that he was working only for six months in a year as carpenter and for remaining six months he was working in his own field, that would not materially affect his income. While he was working in his own field, he was contributing to augment his income and thereby was saving Rs. 100/- per day on the labour that he would have spent, if he had not worked himself. Thus, looking to the matter from that angle, it is clear that he would have continued to earn Rs. 100/- per day, whether he worked as a carpenter or in his own field.

As far as application of proper multiplier is concerned, looking to the age of the deceased and that of the widow, in our opinion, multiplier of 17 which has been applied by the High Court is proper and does not call for interference.

In aforesaid decision, 1/4th deduction towards personal expenses from his total income was challenged by insurance company but apex court has considered that looking to large number of family member was dependent upon income of deceased, 1/4th deduction towards his personal expenses is considered to be reasonable. Therefore, according to my opinion, there cannot be any straight jacket formula which can be applied in each and every case for deducting amount of personal expenses from income of deceased for deciding dependency benefits but it would depend upon facts and circumstances of each case, for deciding whether 1/3rd should be deducted or 1/4th should be deducted or 1/5th should be deducted towards personal expenses of deceased. Ultimately it is to be taken into account by claims tribunal while deducting personal expenses of deceased looking to his income and family back ground and life style of deceased who normally uses amount for personal expenses and on that basis, considering large family members as dependent and being a simple employee or labourer, may not be having any habit to use amount for personal expenses rather than giving to his family, therefore, in facts and circumstances of this case, deduction of 1/5th in case of driver and 1/4th in case of conductor cannot be considered to be unreasonable. On the contrary, this Court has to consider whether amount of compensation awarded by claims tribunal is found to be reasonable, just and proper or not. According to my opinion, in both cases, while deciding amount of compensation for driver and conductor, claims tribunal has not at all taken into account future prospective income of deceased which is necessary or ought to have been taken into account because in future, his salary and Bhatthas/allowances would have been increased and it would not have remained same which he was receiving on the date of accident.

Relevant observations made by claims tribunal in para 12 and 14 are reproduced as under:

(12) Having heard the learned advocates and perusing the documents on record, it is clear in the petition that applicants have clearly stated that deceased was working as driver and drawing monthly salary of Rs. 5000/- and daily allowance of Rs. 70/- which is also supported by two witnesses namely applicant No. 1 father of the deceased at Exh. 58 and income witness Mr. Siddik at Exh. 62 and both have supported to the version of the monthly earning of the deceased. Therefore, there is no reason to doubt the veracity stated in the above deposition exh. 58 as well as Exh. 62 counting his total monthly income. As per the above deposition, it amounts to Rs. 7,000/- p.m. And had the deceased lived, he would have been prospered by way of increase in his monthly income. However, this Tribunal after hearing learned advocates and perusing papers comes to the conclusion that Rs. 5000/- may be just and reasonable to infer monthly income of the deceased cannot be said to be an excessive amount. Since there are six family members and including deceased, there are seven members. Therefore, as per the judgment reported in Gujarat State Road Trans. Corpn. Vs. Mer Ranmal Bhima (deceased) through heirs, 1/6th amount can be deducted. Therefore, in the present case, Rs. 1,000/- is deducted from Rs. 5,000/- and Rs. 4,000/- comes as monthly dependency loss, since deceased was of 24 years, multiplier of 18 is pressed into service in view of the judgment S. Chandra and Others Vs. Pallavan Transport Corporation, Therefore, Rs. 4000/- x 12 x 18 will amount to Rs. 8,64,000/- under the head of future economic loss to be granted to the applicants. For loss of expectation of life Rs. 15000/- and for transportation expenses Rs. 6000/- are granted. Under all the heads, awardable amount would be Rs. 9/- lacs. However, as held in earlier paragraphs, amount of 30 per cent contributory negligence is to be deducted from the awardable amount. Therefore, deducting Rs. 2,70,000/- (30%) total amount will come to Rs. 6,30,000/-. Therefore, it is held that applicants are entitled to recover amount of Rs. 6,30,000 jointly and severally from the opponent Nos. 1,2 and 3 together with interest at the rate of 10 per cent p.a.

(14) Having heard learned advocates and perusing documents on record, it is clear that looking to the depositions of deceased father at exh. 61 as well as income witness at Exh. 62, it is just and reasonable to infer that deceased monthly loss would be Rs. 4000/- and deducting Rs. 1,000/- as personal expenses as per the judgment (supra) the net income would be Rs. 3000/- and deceased was of 22 years, 18 multiplier is to be pressed into service. Therefore, Rs. 3000 x 22 x 18, it will come to Rs. 6,48,000/-. For loss of expectation of life Rs. 15,000.00 for loss of consortium Rs. 15000/- and for transportation and after death ceremony Rs. 12000/- are granted. Under all the heads, applicants are entitled to recover Rs. 6,90,000/- jointly and severally to be recovered from opponent Nos. 3 and 5. However, it is clarified that in both matters 30% liability is to be foisted upon Insurance Company opponent No. 5. Therefore, while awarding Rs. 6,90,000/- 70 % amount will have to be deposited by opponent No. 3 and Mr. Janardan rightly submited that since opponent No. 5 is only made liable for 30%, the opponent No. 3 will have to deposit 30% of the above amount. In the result, both insurance companies will deposit above amount as per above apportionment together with interest at the rate of 10 per cent p.a. Hence I pass following order:

In view of above discussion and observation made by claims tribunal and considering special facts and circumstances of case, when, future prospective income is not considered by claims tribunal while determining amount of compensation, in absence of such consideration, deduction of 1/4th and 1/5th in respect to both case cannot be considered to be unreasonable and arbitrary. If future prospective income would have been considered and then, amount of compensation would have been worked out, then, difference between 1/3rd deduction on one hand and 1/4th and 1/5th on other hand would not have much relevance or effect on ultimate compensation. This aspect has not been taken into account by claims tribunal though one witness Siddique was examined who gave evidence in support of income of deceased and against which no evidence in rebuttal was produced by appellant insurance company before claims tribunal. Therefore, considering award as a whole, in light of evidence on record as considered by claims tribunal, according to my opinion, 1/5th and 1/4th deduction made by claims tribunal for deducting personal expenses of deceased from income of deceased cannot be considered to be on higher side and according to my opinion, claims tribunal has rightly decided matter and has rightly awarded reasonable and just compensation in favour of claimants and same cannot be considered to be unjust, unreasonable and/or on higher side in any manner whatsoever, therefore, in view of above facts and circumstances of case, decision in case of Sarla Verma (supra) cited by learned advocate Ms. Megha Jani for appellants is not applicable to facts of present case and helpful to appellants . Therefore, contentions raised by learned advocate Ms. Jani in that regard cannot be accepted and same are, therefore, rejected.

Claims tribunal has rightly and properly decided both claim petitions which are based on legal evidence. Finding given by claims tribunal in respect of question of negligence as well as quantum cannot be considered to be baseless and/or perverse. On the contrary, findings are based on appreciation of legal evidence on record and, therefore, according to my opinion, no error is committed by claims tribunal while deciding claim petitions and, therefore, matter does not call for any interference of this Court. Therefore, there is no substance in these appeals and same are, therefore, dismissed with no order as to costs.

Today, this Court has dismissed first appeals filed by appellant insurance company. Therefore, civil application No. 2626 and 2627 of 2003 are also dismissed. Amount, if any, deposited by appellant in registry of this Court be transmitted to claims tribunal immediately, if it has not been transmitted so far.