Bombay High Court
The New India Assurance Co. Ltd vs Mr. Sunil Parsharam Garud And Ors on 29 October, 2015
Bench: A.S. Oka
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nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1271 OF 2014
WITH
CIVIL APPLICATION NO.3156 OF 2014
(FOR STAY)
IN
FIRST APPEAL NO.1271 OF 2014
The New India Assurance Company Limited
Divisional Office, Kamgar Bhavan,
Sangli ...Appellant
Versus
1. Sunil Parsharam Garud
Age 47 years, Occ: Service
R/o Mahadeonagar Islampur,
Tal.Walwa, District - Sangli
2. Kumar Sumit Sunil Garud
Age. 20 years, Occ:Education
R/o Mahadeonagar Islampur,
Tal.Walwa, District - Sangli
3. Kumar Sanket Sunil Garud
Age. 16 years, Occ:Education
R/o Mahadeonagar Islampur,
Tal.Walwa, District - Sangli
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4. Raghunath Dnyanu Khambe
Age. Major, Occ:Business
A/p Urun Islampur, Taluka Walwa,
District - Sangli.
5. Imtiyas Lukaman Maner,
Age. 43 years, Occ:Driver
R/o Mahadeonagar Islampur,
Tal.Walwa, District - Sangli ...Respondents
WITH
CIVIL APPLICATION NO.2329 OF 2015
(FOR MONEY WITHDRAWAL)
ig IN
FIRST APPEAL NO.1271 OF 2014
1 Sunil Parsharam Garud
Age 52 years, Occ: Service
R/o Mahadeonagar Islampur,
Tal.Walwa, District - Sangli
2. Kumar Sumit Sunil Garud
Age. 25 years, Occ: At present Nil,
R/o. As above.
3. Kumar Sanket Sunil Garud
Age. 22 years, Occ: Education,
R/o. As above. ...Applicants (Orig.
Respondent Nos.1 to 3)
IN THE MATTER BETWEEN
The New India Assurance Company Limited
Divisional Office, Kamgar Bhavan,
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Sangli ...Appellant
Versus
1. Sunil Parsharam Garud
Age 52 years, Occ: Service
R/o Mahadeonagar, Islampur,
Tal.Walwa, District - Sangli
2. Kumar Sumit Sunil Garud
Age. 25 years, Occ:Education
R/o As above.
3. Kumar Sanket Sunil Garud
Age. 22 years, Occ:Education
R/o As above.
4. Raghunath Dnyanu Khambe
Age. Major, Occ:Business
A/p Urun Islampur, Taluka Walwa,
District - Sangli.
5. Imtiyas Lukaman Maner,
Age. 48 years, Occ:Driver
R/o Mahadeonagar Islampur,
Tal.Walwa, District - Sangli ...Respondents
Mr.Shrikant Madhukar Dange, for the Appellant in the Appeal and for the
Applicant in Civil Application No.3156 of 2014 and for the Appellant in
Civil Application No.2329 of 2015.
Mr.Akshay Prakash Shinde, for the Applicants in Civil Application
No.2329 of 2015 and for the Respondents in First Appeal No.1271 of 2014
and in Civil Application No.3156 of 2014.
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CORAM : A. S. OKA &
REVATI MOHITE DERE, JJ.
RESERVED ON : 13rd AUGUST, 2015.
PRONOUNCED ON : 29th OCTOBER 2015.
JUDGMENT (Per Revati Mohite Dere, J.) :-
1. Rule. Rule is made returnable with the consent of the parties
forthwith and is taken up for final hearing.
2.
The appellant - insurance company (Original opponent No. 2)
has taken exception to the Judgment and Award dated 9th May, 2014, passed
by the Learned Member of the Motor Accident Claims Tribunal, Islampur,
Sangli, by which the respondent - claimants were granted compensation of
Rs.49,02,216/- with Interest @ of 6% per annum from the date of filing of
the claim petition till its realization.
3. The appellant is the Insurance Company of the vehicle, which
was involved in the accident, in which the deceased - Ujwala died.
Respondent No.1 is the husband of the deceased, Respondent Nos.2 and 3
are the sons of the deceased ; Respondent No.4 is the owner of the vehicle,
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in which the deceased was traveling when it met with an accident ; and
Respondent No.5 was the driver of the said vehicle. The impugned Award
has been challenged by the appellant - company essentially on two counts,
viz., (i) that the issue of negligence has not been properly considered by the
Tribunal and (ii) that the future prospects ought not to have been granted to
the respondent - claimants, as the deceased was not permanently employed
in any Government post/organization/PSUs, but was serving in an unaided
private college.
4. The respondent - claimants supported the Award and
contended that no interference was warranted in the same.
5. Before we deal with the rival submissions advanced by the
parties, it will be necessary to set out the factual matrix of the case and the
evidence adduced by the respondent - claimants, in support of the Claim
Petition.
On 3rd January, 2009, Ujwala Sunil Garud (deceased) was
proceeding from Mumbai to Islampur, after attending a meeting. She was
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travelling in a Mahindra Scorpio Vehicle, bearing No.MH-10-AG-1515.
When the vehicle came on the Pune-Mumbai Road near Ravet Fata, the
driver of the said vehicle lost control over the vehicle, as he was driving the
vehicle at high speed, resulting in the vehicle turning turtle. As a result of
the accident, Ujwala sustained serious injuries and died on the spot. The
driver of the vehicle is stated to have driven the said vehicle in a rash and
negligent manner resulting in the accident. Pursuant to the accident, an FIR
came to be registered as against the respondent no.5 i.e. the driver of the
vehicle, which was registered vide C.R.No.6 of 2009 with the Dehu Road
Police Station, for the alleged offences punishable under Section 279,
304A, 337 of the Indian Penal Code and under Section 184 of the Motor
Vehicles Act. Respondent Nos.1 to 3 filed a Claim Petition in 2009, under
Section 166 of the Motor Vehicles Act in the Motor Accident Claims
Tribunal, and sought compensation of Rs.85,00,000/- Respondent nos.4
and 5 (Original Opponent Nos.1 and 3) contested the claim and filed their
written statements (Exhibit - 22). They questioned the age and income of
the deceased and denied that the accident occurred due to rash and
negligent driving of respondent no.5 - driver. According to the Respondent
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nos.4 and 5, the respondent no.5 had a valid licence at the time of the
accident and had driven the vehicle cautiously with due care and caution.
They did not dispute the ownership and insurance of the vehicle.
6. The appellant - insurance company (Original opponent no.2)
contested the claim by filing a written statement, which is at Exhibit - 17
and questioned the age and income of the deceased and the manner in
which the accident occurred. They denied that the vehicle was being driven
rashly and negligently and that the deceased suffered grievous injuries in
the accident. They appellant - insurance company contended that
Respondent Nos.1 and 2 were not dependent on the deceased and had their
own independent income.
7. The respondent - claimants in support of their claim petition
examined the first respondent i.e. Sunil Parsharam Garud ; Prashant
Prabhakar Mokashi, a Clerk of Rajarambapu Co-operative Bank, Sakharale
Branch ; Shivaji Shankar Pisal, an employee of Rajarambapu Co-operative
Sugar Factory, who was attached to the Accounts Section of the said
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Factory; Kumar Panditrao Inamdar, an Office Superintendent attached to
the Rajarambapu Institute, in which Institute, the deceased was serving;
Babasaheb Patil, a Clerk of Hutama Co-operative Sugar Factory and
Jaysing Keshav Patil, an Accountant working in Hutama Co-operative
Sugar Factory. As far as the first respondent and Kumar Panditrao
Inamdar, are concerned, they were examined to prove the qualifications of
the deceased, the nature of her job and her salaried income. Shivaji Pisal
was examined to show the income received by the deceased in her account.
The rest of the witnesses were examined to show the agricultural income of
the deceased received by her from the agricultural land, which she held in
her name along with her family members i.e. her husband, brother-in-law
and mother-in-law.
8. The Tribunal after considering the evidence on record
concluded that the respondent - claimants had proved; (i) that the driver of
the vehicle was rash and negligent ; (ii) that had the deceased survived,
being a permanent employee, she would have been entitled to a higher
salary and the benefit of the 6 th Pay Commission, and as such would have
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drawn a salary of around Rs.34,000/- ; (iii) after applying the formula laid
down in Sarla Verma's case, considering the dependency etc, including
future prospects, applied the multiplier of 14 and awarded compensation of
Rs.49,02,216/- to the respondent - claimants with an interest @ of 6% per
annum from the date of filing of the Claim Petition till its realization. Both
the appellant and the fourth respondent were held jointly and severally
liable to pay the said compensation. Under the conventional heads the
Tribunal awarded Rs.25,000/- towards loss of consortium ; Rs.10,000/-
towards loss of estate and Rs.10,000/- towards funeral expenses. The
apportionment was to be done as follows ; 20% of the compensation
amount was to be paid to the respondent no.1 - claimant i.e. husband of the
deceased and 40% was to be paid equally to respondent nos.2 and 3 i.e.
sons of the deceased. Out of the said compensation allotted to the
respondent nos.2 and 3, an amount of Rs.10,00,000/- each i.e.
Rs.20,00,000/- was to be invested in FDR in the name of respondent Nos.
2 and 3 with a Nationalized Bank for a period of 5 years.
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9. The first respondent - claimant in support of the Claim Petition
filed his affidavit of evidence i.e. Exhibit - 26. He has stated that on 3 rd
January, 2009, his wife - Ujwala was proceeding from Mumbai to
Islampur, after attending a meeting in a Mahindra Scorpio Vehicle, bearing
No. MH-10-AG-1515 ; that when the vehicle came on the Pune-Mumbai
Road, near Ravet Fata, the driver of the said vehicle lost control over the
same, as he was driving the vehicle at high speed, in a rash and negligent
manner, resulting in the vehicle turning turtle ;
ig that pursuant to the
accident, an FIR came to be registered as against the respondent no.5 -
driver of the vehicle, which was registered vide C.R.No.6 of 2009 with the
Dehu Road Police Station ; that as a result of the accident, Ujwala
sustained serious injuries and died on the spot ; that his wife - Ujwala was
aged 44 years ; was a strong and stout women ; that she had completed her
Post Graduation in Engineering Faculty and had done some short term
courses ; and had attended Seminars, Workshops and Engineering
Programs. He has stated that his wife - Ujwala was a member of the
'Institution of Electronics and Telecommunication Engineers' and also a
member of the 'Biomedical Engineering Society of India'; that she has
attended the First National Convention of Women Engineers; that she had
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passed the Vocal Examination of 'Akhil Bhartiya Gandharv Mahavidyalay
Mandal, Mumbai; that at the relevant time, she was serving as a Professor
in 'Rajarambapu Institute of Technology', Rajaramnagar, Islampur, and was
drawing a Salary of Rs.25,376/- per month; that she was a permanent
employee and had a great career ahead ; that she would have been entitled
to future benefits, allowances from time to time and that she had a bright
future of traveling abroad in connection with her expertise. He has further
stated that considering her age, qualification and expertise, she would have
become a Senior Professor within 5 years and within a few years thereafter,
would have gone on to become the Dean of the College. He has stated that
his wife was the earning member of the family and that all the family
members were dependent on her income and that she was looking after the
education of their children. He has also stated that his wife was supervising
her own agriculture land and was drawing an income of Rs.2,00,000/- from
supply of sugarcane annually.
10. It has come in the cross examination of the first respondent -
claimant that he was working as a Grade-II Engineer in the Irrigation
Department since 1983 and was drawing a salary of Rs.55,000/- per
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month ; that a sum of Rs.10,100/- was being deducted from his salary
towards income tax, professional tax, group insurance and provident fund ;
that his salary about 3 years back was about Rs.40,000 /- to 42,000/- per
month ; that his elder son - Sumit (respondent no.2) had completed his
M.B.B.S Examination in 2011 and that after completing his M.B.B.S from
a Government College he was required to work in a rural area for 2 years ;
and that his second son - Sanket (respondent no.3) was studying B.Tech
and would be completing his education in 2015. In the cross examination
several suggestions were put to the first respondent - claimant, however he
has denied the same. Nothing substantial has come on record in the cross-
examination of the first respondent with respect to the age, qualification,
income, expertise of the deceased as well as with respect to dependency on
the deceased. He has denied the suggestion that the driver of the said
vehicle was not driving the said vehicle in a rash and negligent manner ;
that his son - Sumit was receiving Rs.14,000/- per month during his
housemanship ; that his wife was not a permanent employee ; that as the
Rajarambapu Institute was 15-20 kms away from Islampur, the number of
college students were reducing; that the Diploma Courses in the College
were shut down because of reduction of the students; that there was no
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possibility of future increments in his wife's job and that the agricultural
income from sugarcane was not shown by the deceased in the income tax
returns. A few admissions that have come on record in the cross
examination of the said witness are that the deceased had not appeared for
NET-SET examination, however, he has stated that the same was not
compulsory for teachers in the Engineering faculty. He has admitted that
he was a co-owner of the agricultural land, alongwith his deceased wife -
Ujwala, his brother and mother and that 60% of the income received from
sugarcane was spent on cultivation of sugarcane crops. He has denied the
suggestion that 70% of the expenditure of the children's education was
looked after by him and that his son had become economically independent
and that the deceased would spend 60% of her income on herself.
11. The other crucial witness who was examined on the point of
salary and employment of the deceased was Kumar Panditrao Inamdar. The
said witness has stated in his examination in chief, that he has been working
in the Rajarambapu Institute of Technology, Rajaramnagar, Islampur, since
1983 and was currently the Head of the Accounts Department. He has
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stated that the record of all the employees and teachers including the salary
drawn by them was maintained by the Institute. He has stated that deceased
- Ujwala was serving as a Professor in their College and that she had done
her B.E. (Electrical) and M.E (Electrical). He has stated that she joined the
Institute on 1st January, 1986 and according to the documents submitted by
the deceased, her date of birth was 15 th November, 1964. He has tendered a
Service Book of the deceased, which was taken on record and marked as
Exhibit - 63. He produced the salary register of the deceased from the
year 2009 to 2010. A copy of the same was taken on record and marked as
Exhibit - 64. He also produced the salary certificates/salary slips of the
deceased which bear the College Seal. He has stated that the salary
certificates/salary slips of the deceased show that she was drawing a salary
of Rs.25,376/- per month. He has produced all the salary certificates/salary
slips of the deceased which are marked as Exhibit - 65 (colly.) He has
further stated that the 6th Pay Commission came into force in November,
2010 giving retrospective effect for payment as per the the 6 th Pay
Commission from January, 2006. He has stated that since Ujwala Garud
expired in 2009, she could not receive the benefit of the the 6 th Pay
Commission and therefore Exhibit - 65, which was produced shows her
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last drawn salary as Rs.25,376/- and does not include the benefit of the 6 th
Pay Commission. He has stated that the deceased was a permanent
employee of the Institute and has produced a document in support thereof,
which was exhibited vide Exhibit - 66. He has tendered the due and drawn
register of the deceased which was also exhibited vide Exhibit - 67.
According to him, if the deceased was alive, she too would have received
the benefit of the 6th Pay Commission and would have been entitled to a
salary in accordance thereto. He has produced a document in support
thereto, which is at Exhibit - 68. He has stated that although Rajarambapu
Institute of Technology, was a private unaided college, when permission
was granted to start the said College, the State Government had directed
that the said unaided private Colleges, would have to comply with all the
Rules/Regulations/Directives of the State Government. He has stated that
all the employees of his college are receiving the benefits in accordance
with the Government Rules. He has stated that considering the
qualifications and the experience of the deceased, she would have
definitely become an Associate Professor. The said witness was cross
examined at length, however nothing substantial has been brought in the
cross examination of the said witness. It has come in the cross examination
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of the said witness that the said institute i.e. Rajarambapu Institute of
Technology, had started in the year 1986 ; that after 15 years, Annasaheb
Dange College was opened at 'Ashtha' and thereafter a College was started
at 'Shirala' ; that all these Colleges were unaided Colleges ; that
Rajarambapu Institute of Technology, had also started a College by the
name 'Rajarambapu Polytechnic College' but the same was closed down
after 7 years due to lack of students ; and that the salary of a
teacher/professor, came from the students fees. The said witness was cross
examined on the documents which were tendered vide Exhibits - 64, 65 and
66, however nothing substantial has come in the cross examination of the
said witness to disbelieve him. The said witness has denied the suggestion
that the deceased was not a permanent employee of the institute; that the
institute was not paying salary as per the Government Rules ; that the
signature of the deceased on the salary certificate/salary slip was not of the
deceased.
12 As far as the evidence led with respect to the agricultural
income of the deceased, the Tribunal has rightly come to the conclusion,
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after considering the evidence of witnesses in this regard, that the
respondent no.1 - claimant was receiving income from the lands, even after
the demise of the deceased. The Tribunal has discussed the evidence in this
regard at length and we do not find any error/infirmity in this finding.
13. We have perused the impugned Judgment and Award and the
evidence that has come on record with the assistance of the parties. We
have also given our anxious consideration to the submissions advanced by
both the learned counsel for the parties. With regard to the submission of
the learned counsel for the appellant - company, that the respondent -
claimants had failed to prove negligence, we do not find any merit in the
said submission. No doubt, the first respondent - claimant is not an eye-
witness to the accident, however, he has produced on record all the relevant
documents i.e. FIR, spot panchanama, P.M.report etc., to show that the
deceased sustained fatal injuries in the said accident. There is nothing
substantial brought on record in the cross-examination of the first
respondent on the point of negligence except making suggestions a) that
the driver of the vehicle was not driving the vehicle in a rash and negligent
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manner and b) that the driver was not driving in a high speed, both of
which have been denied by him. It is pertinent to note, that despite the fact
that the respondent no.5 - driver of the vehicle had appeared and filed his
written statement, no steps were taken by the appellant - insurance
company to either examine the driver of the vehicle nor was any material
brought on record, to prove the contrary. Inspite of the fact, that the best
witness was available, the appellant - company did not examine the driver
and hence an adverse inference will have to be drawn, for failure to
examine the driver of the vehicle.
14. The second submission of the learned counsel for the appellant
is that the Tribunal had erred in coming to a conclusion, a) that the
deceased was a permanent employee of the Institute, which was an un-
aided private institute, drawing a salary of Rs.25,376/- per month and
b) that the deceased would have been entitled to receive the benefit of the
6th Pay Commission and consequently the respondent - claimants would be
entitled to future prospects in conformity with the decision of the Apex
Court in the case of Sarla Verma. We do not find any infirmity in the said
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finding. The said finding is based on the evidence that has been adduced in
this regard i.e. the evidence of the first respondent - claimant and Kumar
Inamdar and the judicial pronouncements in this regard. There is no merit
in the submission advanced by the learned counsel for the appellant, that as
the deceased was not working with a Government organization/PSUs but
was working in a private, unaided institute, she was not entitled to receive
30% towards future prospects. It appears from the evidence of the first
respondent - claimant that deceased - Ujwala aged 44 years, was a highly
qualified lady, having done her post graduation in Electrical Engineering
and some short term courses. It also appears that she had participated in
Seminars, Workshops and Engineering Programmes. The deceased was a
member of the 'Institution of Electronics and Telecommunication
Engineers' and of 'Bio-Medical Engineering Society of India' and had
attended the first National Convention of Women Engineers. The deceased
was working in Rajarambapu Institute of Technology as a Professor and
was drawing a Salary of Rs.25,376/- per month and was a permanent
employee of the Institution. It appears from the track record of the deceased
that she had a great career ahead and as such would have been entitled to
future benefits, allowances from time to time. It also appears that
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considering the age, qualification and expertise of the decesed, she had the
prospects of rising higher in her field. It also appears from the evidence that
the deceased was an earning member of the family and that all the family
members were dependent on her income and that she was looking after the
education of their children. It also appears that the deceased was drawing
an agricultural income of Rs.2,00,000/- from sugarcane annually.
15. From the perusal of the evidence of Kumar Inamdar, it is
evident that the deceased joined the Institute in January 1986 and that her
date of birth as per Service records was 15th November, 1964. From the
documents produced by the said witness, it is evident that the deceased was
serving as a Professor in the said Institute since 1986, was made permanent
in 1988 and was drawing a salary of Rs.25,376/- in 2009. The said witness
has categorically stated that although the said institute was an un-aided
private institute, it was required to comply with the Government
directives, including grant of benefits under the 6th Pay Commission to its
employees. Thus, it appears from the evidence that the employees of the
institute were being paid in accordance with the 6 th Pay Commission from
2010, with retrospective effect from 2006. It appears from the record that
the deceased was confirmed as a permanent employee of the said institute
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in the year 1988. It also appears from the evidence and documents on
record that the deceased was highly qualified and experienced and as such,
had great prospects in the future, entitling her to future increments and
financial benefits. Thus, there is no infirmity in the finding of the Tribunal
that the deceased was a permanent employee, serving in the Institute,
drawing a salary of Rs.25,376/-, that she would have been entitled to the
benefit of the 6th Pay Commission as well as future prospects considering
her track record.
16. The submission of the learned counsel for the appellant that the
deceased had no future prospects as she had not appeared for NET-SET
examination is devoid of any merit. It appears from the evidence, that the
said NET-SET examination was not applicable to Technical Educational
Institutes and no material is brought on record to show the contrary. The
submission of the learned counsel for the appellant that as the deceased was
not working with a Government Institute/Organization/PSU, she would not
be entitled to 30% future prospects, is completely devoid of merit. The
fact that the deceased was working in a private unaided school would not
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make any difference, as the Institute was bound to comply with all State
directives/regulations, including payments to its employees under the 6 th
Pay Commission.
17. The submission of the learned counsel for the appellant that a
unaided private school survives on the students' fees and that one of its
associate institute was closed for want of students and therefore there was
no guarantee that the institute would have continued is devoid of merit. It
appears that no specific suggestion to that effect has been given. Even
assuming the same to be true, what cannot be overlooked is the fact that the
deceased was a highly qualified and experienced lady and as such, she
could have secured a good job in any other College/Institute. Thus, the
Tribunal has rightly considered and granted benefit of the Judgment of the
Apex Court in the case of Sarla Verma (Smt) and Others v/s Delhi
Transport Corporation and Another1 and has rightly awarded 30%
towards future prospects. Admittedly, the deceased was 44 years of age at
the time of the accident and respondent no.1 - claimant was 48 years and
the children were aged 20 and 16 years respectively in the year 2009. It
1 (2009) 6 SCC 121
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appears from the evidence on record that the deceased was contributing
towards the expenditure of the family, including for the education of her
children and that her family members were dependent on her income. The
Tribunal had rightly came to a conclusion based on the evidence on record
that the last drawn salary of the deceased in December 2008 was
Rs.25,376/- per month. It appears that after all statutory deductions and
other deductions, her Net Salary was Rs.15,276/-. From the Gross Salary of
Rs.25,376/-. a sum of Rs.200/- towards Professional Tax and other
deductions were for Provident Fund, Life Insurance Corporation etc.
18. The submission of the learned counsel for the appellant that
respondent no.1 - claimant i.e the husband of the deceased was earning at
the relevant time and as such was not dependent on the income of his wife
cannot be accepted, in view of the evidence that has come on record. No
doubt, the first respondent - claimant was working in the Irrigation
Department and was drawing a monthly salary of Rs.55,000/- per month,
out of which Rs.10,000/- odd was being deducted towards various
deductions including statutory deductions. According to the evidence that
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has come on record, the deceased would spend her entire salary on the
family members and was also paying for her children's education. There is
no serious challenge to this part of the evidence that has come on record.
In this day and age, considering the cost of living, the income of both the
husband and wife are equally important for running the house as they
supplement each other's income. It cannot be generally said that as the other
spouse (surviving) is earning, there is no dependency. When a husband and
wife, with separate incomes are living together and sharing their expenses,
and in consequence thereof, their joint living expenses are less than twice
the expenses of each living separately, then each, by the fact of sharing is
conferring a benefit on the other. This results in higher savings. In case, one
spouse loses the benefit of contribution rendered by the other in managing
the household, in such a situation, the surviving spouse would be entitled to
compensation for loss of dependency (for loss of services rendered in
managing households). In the present case, it has come in the evidence that
the deceased was contributing her entire salary for the household needs
including for the education of her two sons, who were studying at the
relevant time. The said evidence as noted earlier has gone unchallenged.
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19. As far submission advanced by the learned counsel for the
appellant - company, that while calculating the compensation, the age of
the first respondent - claimant i.e husband of the deceased, ought to have
been taken into consideration, and not the age of the deceased, as done by
the Tribunal, we are of the opinion that the said submission is without
substance. The Apex Court in the case of National Insurance Company
Limited v/s Shyam Singh and Others 2 considered the age of the claimants
only keeping in mind the gross difference between the age of the deceased
and the age of the claimants and keeping in mind the longtivity of the
parties, after following Vijay Shankar Shinde and Others v/s State of
Maharashtra3 , observed in Para 9 as under:-
"9. This Court in Vijay Shankar Shinde and Others v/s State of
Maharashtra, after referring to the earlier judgments of this
Court, in detail, dealt with the law with regard to determination
of the multiplier in a similar situation as in the present case. The
said findings of this Court are as under:
"6. ........
7. ..........In fact in U.P. State Road Transport Corporation v.
Trilok Chandra (1996) 4 SCC 362, Ahmedi, J. (As the Chief
2 (2011) 7 SCC 65
3 (2008) 2 SCC 670
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Justice then was) has pointed out the shortcomings in the said
Schedule and has held that the Schedule can only be used as a
guide. It was also held that the selection of multiplier
cannot in all cases be solely dependent on the age of the
deceased. If a young man is killed in the accident leaving
behind aged parents who may not survive long enough to
match with a high multiplier provided by the Second
Schedule, then the Court has to offset such high multiplier
and balance the same with the short life expectancy of the
claimants. That precisely has happened in this case. Age of
the parents was held as a relevant factor in case of minor's
death in recent decision in Oriental Insurance Co. Ltd. v.
Syed Ibrahim and Ors. AIR 2008 SC 103. In our
considered opinion, the Courts below rightly struck the
said balance."
Thus, if the deceased is a young person, who dies in an
accident leaving behind aged parents/claimants, who may not survive long
enough, the Court would have to offset the high multiplier provided in the
second schedule and balance the same with short life expectancy. The said
observations will not apply to the facts of the present case, inasmuch as, the
deceased was aged 44 years at the relevant time and the respondent no.1 -
claimant was 48 years and as such the age difference was only of 4 years.
Further, the Apex Court in the case of UP State Road Transport
Corporation v/s Trilok Chandra4 has observed as under :-
4 (1996) 4 SCC 362
27/31 fa.1271.2014.doc
For concluding the analysis it is necessary now to refer to the
judgment of this Court in the case of General Manager, Kerala
State Road Transport, Trivandrum vs. Susamma Thomas
1994(2) SCC 176. In that case this Court culled out the basic
principles governing the assessment of compensation emerging
from the legal authorities cited above and reiterated that the
multiplier method is the sound method of assessing
compensation. The Court observed :
"The multiplier method involves the
ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances
of the case and capitalizing the multiplicand by
an appropriate multiplier. The choice of the
multiplier is determined by the age of the
deceased (or that of the claimants whichever is
higher and by the calculation as to what capital
sum, if invested at a rate of interest appropriate to
a stable economy, would yeild the multiplicand
by way of annual interest. In ascertaining this,
regard should also be had to the fact that
ultimately the capital sum should also be
consumed-up over the period for which the
dependency is expected to last."
Hence, following the above dictum laid down in UP State Road
Transport Corporation (supra), we find no merit in the said submission
advanced by the learned counsel for the appellant.
28/31 fa.1271.2014.doc
20. The Tribunal has rightly come to a conclusion, on the basis of
the record that the last drawn salary of the deceased in December 2008 was
Rs.25,376/- per month and that after the implementation of the 6 th Pay
Commission, the salary of the deceased would have been Rs.34,843/-. The
Tribunal has rightly come to the said conclusion that the recommendations
of the 6th Pay Commission were applied to teachers in November 2010
giving retrospective effect from January, 2006 and as such the deceased
would have been entitled to the benefit of the 6 th Pay Commission, when
she died in January 2009 and as such she would have been entitled to a
salary of Rs.34,843/- as per the 6th Pay Commission on the said date. The
Tribunal had thereafter deducted professional tax and Income Tax from the
said amount of Rs.34,843/- as required and arrived at an amount of
Rs.33,360/-. We find that there is an error in the said calculation here. We
find that the Tribunal has deducted only Rs.1283/- for Income Tax from
Rs.34,843/- instead of deducting 10% from the said amount of Rs.34,843/-
which is Rs.3484/-. Thus, according to us, sum of Rs.200/- would have to
be deducted towards Professional Tax and Rs.3484/- as Income Tax, from
the amount of Rs.34,843/-. After deducting the said amounts, the salary
would be Rs.31,159/-. Thus, the net yearly income of the deceased would
29/31 fa.1271.2014.doc
be Rs.31,159 X 12 = Rs.3,73,908/- Thereafter, as rightly awarded by the
Tribunal, 30% would have to be added towards future prospects, which
would then be Rs.4,86,080/-. From the said amount of Rs.4,86,080/-, 1/3 rd
would have to be deducted towards personal expenses of the deceased.
After deducting 1/3rd towards personal expenses, dependency would come
to Rs.3,24,054/-. The deceased was 44 years old at the time of her death,
considering the formula set out in Sarla Verma's case, the multiplicand
which have to be adopted would be '14'. Thus, the respondent - claimants
would be entitled to receive the compensation of Rs.45,36,756/-. As far as,
compensation under the conventional heads are concerned, we doe not find
any error in the compensation awarded to respondent no.1 - claimant
towards loss of consortium. However, the amounts awarded towards loss
of love and affection and funeral expenses needs to be enhanced.
Accordingly, amounts towards loss of love and affection is increased to
Rs.50,000/- each and amount towards funeral expenses is increased to
Rs.25,000/-. Accordingly, respondent nos.2 and 3 are granted Rs.50,000/-
each towards loss of love and affection and all the respondents are granted
Rs.25,000/- towards funeral expenses in conformity with the Judgment of
the Apex Court in the case of Rajesh and Others v/s Rajbir Singh and
30/31 fa.1271.2014.doc
Others5. It appears that although in the body of the Judgment the Tribunal
has awarded interest @ 7% per annum on the compensation awarded by
him, however in the operative part of the order the interest awarded is
reflected as @ 6%. Considering the Judgments and interest generally
awarded in such cases, we are of the opinion that the rate of interest be
enhanced to 7% from 6%. This error will have to be corrected by
exercising the power under Rule 33 of Order XLI of the Code of Civil
Procedure, 1908.
21. Accordingly, we pass the following order :-
ORDER
i) The appeal is partly allowed ;
ii) The respondent - claimants would be entitled to a compensation
of Rs.46,61,756/- at the rate of 7% per annum from the date of
the Claim Petition till its realization;
iii) The apportionment shall be done in accordance with the
Judgment and Award dated 9th May, 2014, passed by the
Learned Member of the Motor Accident Claims Tribunal,
5 (2013) 9 SCC 54
31/31 fa.1271.2014.doc
Islampur at Sangli.
iv) Writ of this judgment along with R&P shall be forwarded to the
Tribunal, within four weeks.
22. Civil Application nos.3156 of 2014 and 2329 of 2015 do not
survive and the same are disposed of.
23. All concerned to act on the authenticated copy of this order.
(REVATI MOHITE DERE,J.) (A.S. OKA,J.)
