Niyaz Ahemad Masood Sailani and Others vs Champabai and Others

P.B. Varale, J.—By way of present appeal, the appellants are challenging the judgment and award dated 03.10.1998 in Motor Accident Claims Petition No. 58 of 1995 passed by the learned Member, Motor Accident Claims Tribunal, Akola.

The brief facts, which give rise to filing of the present appeal, can be summarized as under:--

"That, one Ramanarayan, who was the son of applicant No. 1 Sunderlal Chandak, aged about 58 years used to cultivate the agricultural land and was also running the business of one Bichhayat Kendra situated at Mouza Tembhurni, Taluka Khamgaon, District Buldana. It was the routine of Ramnarayan to collect the milk from the farm. On 19.11.1994, Ramnarayan along with Radheshyam Gandhi, as per his routine and regular practice, at about 08:00 a.m., after collecting the milk from the farm, was proceeding to the house on two wheeler i.e. scooter. Radheshyam Gandhi was riding two wheeler and Ramnarayan was a pillion rider. When the scooter reached near Octroi Post, a truck bearing registration No. MTV-2434 driven by appellant No. 1-Niyaz Ahemad (non-applicant No. 1 in the claim petition) in rash and negligent manner, gave dash to the scooter. Ramnarayan and Radheshyam were thrown on the ground and received severe injuries. Ramnarayan was immediately taken to the hospital at Khamgaon and on examination, doctor at Khamgaon Hospital opined that the injury being a severe head injury and apprehended a damage to the brain and considering the critical condition of Ramnarayan, advised to shift him immediately to expert doctor at Nagpur. Accordingly, arrangements were made for shifting Ramnarayan and he was shifted to one Arif Nursing Home at Nagpur. The doctors Gautam Darda and Shyam Babhulkar attached to Central Neuro Hospital, Nagpur, though performed surgery, the same was not of any help. On 20.11.1994 at about 12:45 p.m., Ramnarayan succumbed to the injuries."

A Claim Petition was filed at the instance of the father of the deceased Ramanarayan, namely Sunderlal Chandak, widow Champabai Chandak, sons Sunil and Rajkumar Chandak and daughters Sushma, Sau Shiladevi and Sau. Sandhyadevi. The compensation was claimed for the amount of rupees 15 lakhs. It was submitted in the claim petition that deceased Ramnarayan was cultivating the agricultural land of his family as well as the lands of his aunt as his aunt was having no son. It was further submitted that apart from the income earned from the agricultural land, Ramnarayan was also receiving income from the business of Bichhayat Kendra and he was an income tax payer and his income was to the tune of Rs. 1,30,000/- per year. It was also submitted that as the father of deceased Ramnarayan having age of 92 years and was alive and keeping good health, Ramnarayan would have survived till the age of 90 years and at the time of unfortunate accident his age was only 58 years. It was submitted that the medical treatment was provided to Ramnarayan at various hospitals at Khamgaon and Nagpur and the expenses incurred for the treatment were to the tune of Rs. 22,800/-. It was also submitted in the petition that the applicants i.e. claimants lost the shelter and a guidance of their father who was an agriculturist as well as a businessman. Sushma, applicant No. 5 sister of applicant Nos. 3 and 4 Sunil and Rajkumar respectively is mentally challenged and the death of their father was an unfortunate shock and lost to her. The claimants, in support of their claim, placed on record the documents, namely First Information Report (Exh.40), Spot Panchnama (Exh.41), Inquest Panchnama and Postmortem Report of the deceased (Exh.36). On behalf of the applicants, oral evidence was tendered by appellant No. 2 Sunil Chandak son of deceased Ramnarayan. The claim was resisted by the non-applicants i.e. the appellants. The written statements were filed on behalf of the non-applicants.

It was submitted on behalf of non-applicant Nos. 1 and 2 that the non-applicant No. 1 (appellant No. 1) was driving the truck in a moderate speed and he stopped the vehicle at the Octroi Post. After paying the octroi duty, the appellant No. 1 was about to start his truck and he saw that another truck was coming from the opposite direction as well a scooter was also coming from the opposite direction. A scooterist was driving his scooter in rash and negligent manner to overtake the truck. One another truck was standing on the left corner side of the road. The non-applicant No. 1 (appellant No. 1) stopped his vehicle so as to make a way to the truck coming from the opposite direction and the scooterist, who was unable to control the vehicle and was overtaking the truck in excessive speed, lost control over his vehicle and gave dash to the buffer of a truck of non-applicant No. 1. On account of dash given by the scooterist, the scooterist and the pillion rider Ramnarayan fell down on the ground and sustained injuries. Thus, it was the submission of the non-applicants and more particularly the non-applicant No. 1 that the scooterist was responsible for the dash because of his rash and negligent driving and as such it was the case of contributory negligence. It was submitted that the non-applicant No. 1 i.e. appellant No. 1 himself made arrangements to shift the injured i.e. scooterist and the pillion rider by stopping a Maruti Van and he himself approached the traffic controller and narrated the incident to him. The appellant No. 1 to show his bona fides, did not remove his vehicle from the spot till the formalities of drawing panchnamas etc. were completed. It was then submitted that the amount of compensation claimed by the applicants is excessive and exorbitant. It was further submitted that the sons of the deceased are major and self dependent whereas the applicant Nos. 6 and 7 are the married daughters of the deceased and they are residing with their respective husbands. As such, they are not the dependent of deceased Ramnarayan. It was also submitted that the business of Bichhayat Kendra was managed by the applicant No. 4 and even after the death of the father, the applicant No. 4 who is the son of deceased Ramnarayan could have managed the business of Bichhayat Kendra and as such there was no loss of business.

The non-applicant No. 1 (appellant No. 1) was examined on behalf of the non-applicants. On the rival submissions and the material presented before the learned Tribunal, the learned Member, MACT allowed the claim petition partly. During the pendency of the claim petition, the applicant No. 1-Sunderlal Chandak, the father of deceased Ramnarayan expired. The learned Member, MACT held that the applicant Nos. 2 to 5 only will be entitled for the compensation of death of deceased Ramnarayan. The learned Member directed the non-applicants to pay jointly and severally an amount of Rs. 7,68,000/- towards compensation along with the interest.

Shri Kukday, the learned Counsel appearing on behalf of the appellants vehemently submitted that the learned Tribunal erred in allowing the claim partly and awarding an excessive compensation. The submission of the learned Counsel for the appellants is that no material was placed before the learned Tribunal to show the income earned by the deceased. He also submitted that though it was claimed that the deceased was running a Bicchayat Kendra and was earning income from the profits of the said business, no accounts were filed to that effect. Shri Kukday, the learned Counsel for the appellants submitted that though it was claimed by the applicants that the deceased was an income tax payee, neither returns nor assessment orders passed by the Income Tax Officer were filed. He further submitted that the only witness examined by the claimants i.e. applicant No. 3-Sunil Chandak is unable to give the details of the accident and the version of Sunil would show that there was no loss to the agricultural income. The submission of the learned Counsel for the appellants is that though the deceased was cultivating the agricultural field, by the death of Ramnarayan, there was no loss to the agricultural income. At the most, there could have been loss to the services rendered by Ramnarayan for the cultivation or the other agricultural operations. Shri Kukday, the learned Counsel for the appellants further submitted that the applicant Nos. 3 and 4 being major/adult sons of deceased Ramnarayan, they could not have been termed as dependents of the deceased and as such these two major sons were not entitled for any compensation. At the most, the compensation ought to have been awarded to the applicant No. 2 who is the widow of deceased Ramnarayan and applicant No. 5-Sushma, an unmarried daughter of Ramnarayan. The learned Counsel for the appellants submitted that the quantum of the compensation awarded by the learned Tribunal as well as the multiplier applied by the Claims Tribunal is not just and proper. He placed reliance on the judgments of the Apex Court in the cases of State of Haryana and Another Vs. Jasbir Kaur and Others, (2003) ACJ 1800 : AIR 2003 SC 3696 : (2003) 1 JT 601 Supp : (2003) 135 PLR 414 : (2003) 6 SCALE 113 : (2003) 7 SCC 484 : (2003) 2 SCR 245 Supp : (2003) 2 UJ 1527 : (2003) AIRSCW 4198 : (2003) 6 Supreme 206 and New India Assurance Company Ltd. Vs. Yogesh Devi and Others, (2012) ACJ 702 : AIR 2012 SC 945 : (2012) 114 CLT 305 : (2012) 2 JT 265 : (2012) 2 SCALE 409 : (2012) 3 SCC 613 : (2012) 2 TAC 1 : (2012) AIRSCW 1519 : (2012) 2 Supreme 284 .

Per contra, Shri Tote, the learned Counsel appearing on behalf of the respondents (original applicants) supported the judgment and award passed by the learned Tribunal. He placed reliance on the judgment of the Apex Court in the case of Kusum Lata and Others Vs. Satbir and Others, (2011) ACJ 926 : AIR 2011 SC 1234 : (2011) 162 PLR 490 : (2011) 2 RCR(Civil) 379 : (2011) 3 SCALE 74 : (2011) 3 SCC 646 : (2011) 2 SCC(Cri) 18 : (2011) 3 SCR 480 : (2011) 2 TAC 1 : (2011) AIRSCW 1593 : (2011) 2 Supreme 207 and the judgments of this Court in the cases of National Insurance Co. Ltd. Vs. Ms. Vaishali Harish Devare and Others, (2013) 1 ABR 467 : (2013) 2 ALLMR 368 : (2013) 4 BomCR 782 : (2013) 1 MhLj 411 and Tukaram Vaijnath Bahirwal and Another Vs. Smt. Nasib Kaur and Others, (2003) 3 ALLMR 1090 : (2003) 105 BOMLR 122 .

With the assistance of the learned Counsel appearing on behalf of the respective parties, I have gone through the record. Insofar as the submission of the learned Counsel for the appellants that the learned Claims Tribunal failed to appreciate the fact that the scooterist was in excessive speed and as such it was the case of contributory negligence is concerned, the learned Member, MACT rightly held that though it was the scooterist driving the scooter was in high speed, at the same time, the non-applicant No. 1 (appellant No. 1) was also at the fault. As even though the appellant No. 1 saw that the vehicle truck was coming from the opposite direction and also a scooter was overtaking the truck, he did not stop the vehicle truck and the other material factor is that the deceased Ramnarayan was not riding the scooter but he was a pillion rider and for the fault of rider Radheshyam, the pillion rider Ramnarayan cannot be held responsible for contributory negligence. The documents placed on record show that the insurance policy of the offending vehicle was valid when the accident took place. The validity period of the policy was from 12.01.1994 to 11.01.1995 and the accident took place on 19.11.1994. Shri Kukday, the learned Counsel for the appellants vehemently submitted that the learned Claims Tribunal awarded the excessive quantum of compensation and there was no material placed on record to that effect.

On the aforesaid aspect, perusal of the records shows that the 7/12 extracts of the lands were placed on record. Survey No. 630 is in possession of Sunderlal Chandak i.e. the father of the deceased Ramnarayan. On perusal of 7/12 extracts, the learned Member, MACT observed that the cultivation column of 7/12 extract shows that the deceased cultivated the land in the years 1991-92, 1992-93 and 1993-94. The total area of the said land was 8H and 99R. Out of this, the area of 5H and 50R was under cultivation of the deceased. The material placed on record also shows that the crops were being taken from this land were jowar, urid and sunflower. Considering the area under cultivation and the crop pattern, the learned Member, MACT arrived at a conclusion that the deceased was earning income at the rate of Rs. 70,000/- from agricultural land and as per the oral evidence of applicant No. 3-Sunil coupled with income tax certificate placed on record, the learned Member arrived at a conclusion that the deceased was receiving yearly income of Rs. 1,30,000/-from his agricultural as well as the business of Bichhayat Kendra. The learned Member held that the applicant Nos. 3 and 4, the sons of deceased Ramnarayan though major and adult sons of the deceased, they are looking after the agricultural activities and the business of deceased Ramnarayan and they are the legal representatives of the deceased who can file the application for compensation and are entitled for compensation on account of the deceased. The applicant No. 2 being the widow of the deceased and mother of applicant No. 5, unmarried sister of applicant Nos. 3 and 4 are the dependents of the deceased and are entitled for the compensation. Considering the income of the deceased Ramnarayan and the share of each of the dependents and by applying the multiplier in view of the judgment of the Apex Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, (1994) ACJ 1 : AIR 1994 SC 1631 : (1994) 107 PLR 1 : (1993) 4 SCALE 643 : (1994) 2 SCC 176 , the learned Member, MACT arrived at a conclusion that the applicant Nos. 2 to 5 are entitled for compensation of Rs. 7,68,000/- along with the interest at the rate of 12 per cent per annum. Thus, considering the fact that the applicants have placed on record the material in the form of 7/12 extracts and the income tax receipts and on appreciation of this material with the oral testimony of applicant No. 3-Sunil, the learned Tribunal arrived at just and proper conclusion.

I am unable to accept the submission of Shri Kukday, the learned Counsel for the appellants that no material was placed on record and the learned Tribunal on assumption and presumption awarded the compensation. The learned Counsel for the appellants though placed reliance on the judgments of the Apex Court in the cases of State of Haryana and another v. Jasbir Kaur and others and New India Assurance Co. Ltd. v. Yogesh Devi and others (cited supra), in my opinion, these judgments are of no help to the learned Counsel in support of his submission. The Apex Court in the case of State of Haryana and another v. Jasbir Kaur and others (cited supra) observed that no material was placed before the Tribunal so as to show the income or the quality of the agricultural land. In the present matter, as stated above, before the Tribunal, the material in the form of 7/12 extracts was placed on record and the oral testimony of applicant No. 3-Sunil was considered on the backdrop of the material. It will not be out of place to refer the observations of the Apex Court for awarding the just compensation--

"It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be ''just and reasonable''. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza : not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just."

Shri Kukday, the learned Counsel for the appellants also placed reliance on the judgment of the Apex Court in the case of New India Assurance Co. Ltd. v. Yogesh Devi and others (cited supra). It was an attempt of the learned Counsel for the appellants to submit that no material was brought before the learned Tribunal to show the accounts of the income earned from the business of Bichhayat Kendra. In the matter of New India Assurance Co. Ltd. v. Yogesh Devi and others (cited supra), the claimants submitted that deceased Vijendrasingh was the owner of three vehicles and the only evidence on behalf of the claimants presented before the Tribunal was in the form of statement of the first respondent that the deceased used to give her an amount of Rs. 35,000/- per month. It was admitted that the deceased was not filing any income tax returns. The Tribunal, on the basis of the fact that the deceased was the owner of two buses and one bus was given on contract and the deceased was earning Rs. 3,900/- per month in the capacity of the driver of the bus, held that the income of the deceased was Rs. 7,380/-. The High Court of Rajasthan in an appeal, held that deceased Vijendrasingh who was earning Rs. 3,900/- per month as a driver could have earned Rs. 10,000/- from other buses as the owner and, therefore, Vijendrasingh''s income tax should be taken as Rs. 23,900/- per month or Rs. 24,000/- in the round. The Apex Court observed that though it is agreed with the logic of the High Court, the quantum of such income would depend upon various factors, such as; whether it is a stage carriage or a contract carriage, the condition of the bus, its seating capacity, the route on which it is plying, the cost of maintenance, the taxes to be paid on such business etc. In the case of New India Assurance Co. Ltd. v. Yogesh Devi and others (cited supra), it was admitted by the respondent that the deceased Vijendrasingh was not filing any income tax returns. In the present case, the income tax receipts were placed on record. The material in the form of 7/12 extracts were also placed on record in support of the claim of the applicants along with the oral testimony of applicant No. 3-Sunil.

Though there cannot be any dispute on the proposition of law reflected in the judgments of the Apex Court in the matters of New India Assurance Co. Ltd. v. Yogesh Devi and others (cited supra) and State of Haryana and another v. Jasbir Kaur and others (cited supra), these judgments are of no help to the learned Counsel for the appellants as the facts are totally different. On the contrary, Shri Tote, the learned Counsel for the respondents was justified in placing the reliance on the judgment of this court in the case of Tukaram Vaijnath Bahirwal and another v. Nasib Kaur w/o late Bagusing and others (cited supra) and this Court in the said matter, considering the damage in the case of agriculturists, observed thus :--

"At this stage, it is to be noted that while estimating the damages in case of agriculturist, the value of supervisory services and the value of services as farm servant need to be considered. The question of estimating damages on the death of an ''agriculturist'' owning agricultural land and cattle, has engaged the attention of various High Courts in our country from time to time. His Lordship of Andhra Pradesh High Court at Hyderabad in D. Vinoda and Others Vs. B. Basava Raju and Others, (1988) 2 ACC 405 : (1988) ACJ 1072 : (1988) 1 APLJ 615 after referring to as many as 17 cases of various High Courts summarized the principles regarding estimating damages on the death of an agriculturist, as under :--

"(i) In the case of death of an agriculturist owning agricultural land, the value of the ''supervisory'' services of the deceased have to be first estimated. This will not be merely equivalent to the value of the services of a farm servant or a manager of the property employed for that purpose. It will be more than that because an owner manager takes extra care in increasing the income year by year and also in increasing the value of the property. After thus estimating the ''special'' value of the supervisory services of an ''owner-manager'' a deduction is to be made in respect of the money the deceased would have spent for himself out of such sum and then the annual contribution to the family is to be arrived at. Then an actuarial multiplier suitable to the age of the deceased has to be applied.

(ii) It is not permissible to say that no amount need be awarded towards the loss to the dependency merely because the corpus of the agricultural land is left intact for the dependents. When in case of death of non-cultivators who have other properties the properties remain intact and still damages are awarded, there is no reason why on death of cultivators who have agricultural land, a negative attitude should be taken. The general practice of making automatic deductions for the value of property inherited has fallen into desuetude. The value of the accelerated receipt of property cannot according to the Privy Council be treated as a total or partial equivalent of the loss to the dependency inasmuch as the said acceleration has to be set off against the loss of saving of the deceased to the family. At the other extreme, it is equally not permissible to capitalise the income from the land by a number of years'' purchase."

(emphasis supplied).

This Court further observed thus--

"The agricultural labourers use to work during fixed period during the course of the day without shouldering any responsibility to profit or loss from the agriculture, but the owner of the land has to look after cultivation throughout the year. He has to take steps for increasing the income from the farm year by year and also in increasing the value of the property. Therefore, the value of supervisory services of the agriculturist in addition to the value of services as farm servant will have to be taken into consideration while assessing the damages. There cannot be any exact uniform rule for measuring the value of the supervisory services, however, it depends upon the facts and circumstances of each case."

(emphasis supplied).

On the backdrop of the aforesaid consideration, in my opinion, no error is committed by the learned Member, MACT. The appeal being meritless deserves to be dismissed and the same is accordingly dismissed.