Orissa High Court
Suryamani Jena And Others vs Secretary on 4 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.617 of 2012
[From the judgment dated 23rd April, 2012 passed by Shri P. Ch.
Mohapatra, LL.M., 1st MACT, Cuttack in M.A.C. No.601 of 2009]
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Suryamani Jena and Others ...... Appellants
Versus
Secretary, Home Department,
Government of Odisha, Bhubaneswar ...... Respondent
Advocate(s) appeared in this case :-
For Appellants : Mr. K. C. Nayak, Advocate
For Respondent : Mr. Sarojananda Mishra,
Additional Government Advocate
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
4th May, 2022
B.P. Routray,J.
1. Present appeal by the claimants is directed against the impugned
judgment dated 23rd April, 2012 of learned 1st MACT, Cuttack passed in
MAC No.601 of 2009 wherein compensation to the tune of Rs.5,44,500/-
along with interest @ 7.5% per annum from the date of filing of the claim
application, i.e. 19th October, 2009 has been granted on account of death
of the deceased in the motor vehicular accident dated 7th August, 2009.
2. The claimants who are present Appellants are the parents and sister
of the deceased. The deceased was a bachelor. The case of the claimants is
that on 7th August, 2009 when the deceased was going in his motor cycle,
the police van bearing registration number OR 05 B 2622 (hereinafter
referred as 'offending vehicle') dashed against it from the backside and
ran over the deceased resulting his death.
3. The learned Tribunal while fixing negligence on the part of the
driver of the offending vehicle directed for payment of compensation to
the aforesaid tune taking the monthly income of the deceased at Rs.4,500/-
and applying multiplier '15'. While determining the multiplier the learned
Tribunal counted the age of the parents of the deceased instead of the
deceased.
4. The Appellants challenged the quantum of compensation mainly on
the ground that the learned Tribunal has erred in law by counting the age
of the parents for the purpose of multiplier. They further submitted that
despite the salary certificate of the deceased filed on record, the learned
Tribunal disbelieving the same had determined the monthly income taking
him as a skilled labourer @ Rs.150/- per day.
5. First coming to examine the income of the deceased it reveals that
the salary certificate under Ext.12 was produced from the side of the
Claimants with the claim that he was serving as Branch Manager of a
finance company at Bargarh, namely Ashmitha Micro Finance Ltd. and
getting salary of Rs.14,734/- per month. The learned Tribunal disbelieved
such claim of monthly income to the extent of Rs.14,734/- by discarding
the salary certificate on the ground that the same has not been
satisfactorily proved. It is true that P.W.3 examined on behalf of the
Claimants was the Area manager of the aforesaid finance company who
has stated about the occupation and working of the deceased in the
company as such. The learned Tribunal without discussing the evidence of
said P.W.3 discarded the claim of the Appellants with regard to his
income and took him as a skilled labourer capable of earning Rs.150/- per
day. No such rationality is seen behind such approach of the Tribunal to
discard the income of the deceased adduced through P.W.3. The position
of P.W.3 as an Area Manager of the company and proving the salary
certificate by coming to the witness box is not sufficiently rebutted in his
cross-examination. Therefore, the approach of the Tribunal is not found
reasonable to take the income of the deceased as a skilled labourer. As
such, the income of the deceased is accepted at Rs.14,734/- and
considering the statutory deductions there-from as per the prevalent tax
rate for the financial year 2009-10, the income of the deceased can safely
be assessed at Rs.14,000/- per month.
6. Admittedly the deceased was a bachelor aged about 25 years. No
challenge is there to the said finding of the learned Tribunal. As per the
principles decided in the case of National Insurance Company Ltd. v.
Pranay Sethi and Others (2017) 16 SCC 680 it has been held as follows:-
"xxx xxxx xxxx
37. Before we proceed to analyse the principle for addition of
future prospects, we think it seemly to clear the maze which is
vividly reflectible from Sarla Verma v. DTC, reported in
(2009) 6 SCC 121, Reshma Kumari v. Madan Mohan, (2013) 9
SCC 65, Rajesh v. Rajbir Singh, (2013) 9 SCC 54 and Munna
Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347. Three
aspects need to be clarified. The first one pertains to deduction
towards personal and living expenses. In paragraphs 30, 31 and
32, Sarla Verma (supra) lays down:-
"30. Though in some cases the deduction to be made towards
personal and living expenses is calculated on the basis of
units indicated in UP SRTC v. Trilok Chandra, (1996) 4
SCC 362, the general practice is to apply standardised
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 dependent family
members is 4 to 6, and one-fifth (1/5th) where the number
of dependent family members exceeds six.
31. 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 dependant. In the
absence of evidence to the contrary, brothers and sisters
will not be considered as dependants, because they will
either be independent and earning, or married, or be
dependent on the father.
32. 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 the family of the bachelor is
large and dependent 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."
7. The Constitution Bench of the Hon'ble Supreme Court have further
observed in Pranay Sethi case (supra) that for the purpose of multiplier
the table placed in the case of Sarla Verma v. DTC, reported in (2009) 6
SCC 121 has to be followed. No different approach was taken to count the
age of the parents in case of a bachelor. The probable reason may be that,
the parents are still alive and it would be inappropriate to consider the
expected life duration of living persons. So the multiplier is decided in
reference to the age of the deceased based on the normal expectancy of his
life and not the expected life duration of his parents who are not dead.
8. In Sube Singh and Anr. v. Shyam Singh (dead) and Ors., (2018) 3
SCC 18, the Hon'ble Supreme Court in answering the question regarding
application of multiplier with reference to age of the parents of the
deceased, have observed as follows:-
"The sole question to be answered in this appeal is: whether the
High court was right in applying multiplier 14 for determining
compensation amount in a motor accident claim case in
reference to the age of parents of the deceased whilst relying on
the decision of this Court in Ashvinbhai Jayantilal Modi v.
Ramkaran Ramchandra Sharma, (2015) 2 SCC 180?
xxxxxxx xxxxx xxxxx
4. On the basis of the finding recorded by the Tribunal and
affirmed by the High Court, it is evident that the deceased was
23 years of age on the date of accident i.e. 22-9-2009. He was
unmarried and his parents who filed the petition for
compensation were in the age group of 40 to 45 years. The High
Court, relying on the decision in Ashvinbhai Jayantilal Modi
case (supra) held that multiplier 14 will be applicable in the
present case, keeping in mind the age of the parents of the
deceased. The legal position, however, is no more res integra. In
Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347
decided by a three-Judge Bench of this Court, it is held that
multiplier should depend on the age of the deceased and not on
the age of the dependents. We may usefully refer to the
exposition in paras 11 and 12 of the reported decision, which
read thus:
"11. The remaining question is only on multiplier. The
High Court following Santosh Devi v. National Insurance
Co. Ltd., (2012) 6 SCC 421 has taken 13 as the multiplier.
Whether the multiplier should depend on the age of the
dependants or that of the deceased, has been hanging fire
for some time; but that has been given a quietus by another
three-Judge Bench decision in Reshma Kumari v. Madan
Mohan, (2013) 9 SCC 65. It was held that the multiplier is
to be used with reference to the age of the deceased. One
reason appears to be that there is certainty with regard to
the age of the deceased but as far as that of dependants is
concerned, there will always be room for dispute as to
whether the age of the eldest or youngest or even the
average, etc., is to be taken. To quote:
'36. In Sarla Verma v. DTC, (2009) 6 SCC 121, this
Court has endeavoured to simplify the otherwise
complex exercise of assessment of loss of dependency
and determination of compensation in a claim made
under Section 166. It has been rightly stated in Sarla
Verma case (supra) that the claimants in case of death
claim for the purposes of compensation must establish
(a) age of the deceased (b) income of the deceased;
and (c) the number of dependants. To arrive at the loss
of dependency, the Tribunal must consider (i)
additions/deductions to be made for arriving at the
income; (ii) the deductions to be made towards the
personal living expenses of the deceased; and (iii) the
multiplier to be applied with reference to the age of
the deceased. We do not think it is necessary for us to
revisit the law on the point as we are in full agreement
with the view in Sarla Verma case (supra).'
12. In Sarla Verma case (supra) at para 19 a two-Judge
Bench dealt with this aspect in Step 2. To quote:
'19..... Step 2 (Ascertaining the multiplier)
Having regard to the age of the deceased and period of
active career, the appropriate multiplier should be
selected. This does not mean ascertaining the number
of years he would have lived or worked but for the
accident. Having regard to several imponderables in
life and economic factors, a table of multipliers with
reference to the age has been identified by this Court.
The multiplier should be chosen from the said table
with reference to the age of the deceased.'"
5. Considering the aforementioned principle expounded in Sarla
Verma case (supra), which has been affirmed by the
Constitution Bench of this Court in National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680, the appellants are
justified in insisting for applying multiplier 18."
9. In the case of Joginder Singh and Another v. ICICI Lombard
General Insurance Company, (2020) 18 SCC 808, Hon'ble Apex Court
relying on the observations of Sube Singh case (supra) have held as
follows:-
"xxxxxxxx xxxxx xxxxxx
6. We have perused the judgments of the courts below, and
find that the wrong multiplier has been applied to the facts of the
present case. The issue with respect to whether the multiplier to
be applied in the case of a bachelor, should be computed on the
basis of the age of the deceased, or the age of the parents, is no
longer res integra. This issue has been recently settled by a
three-Judge Bench of this Court in Royal Sundaram Alliance
Insurance Co. Ltd. v. Mandala Yadagari Goud, (2019) 5 SCC
554, wherein it has been held that the multiplier has to be
applied on the basis on the age of the deceased. The Court held
that:
'10. A reading of the judgment in Sube Singh case
(supra) shows that where a three-Judge Bench has
categorically taken the view that it is the age of the
deceased and not the age of the parents that would be the
factor of the purposes of taking the multiplier to be applied.
This judgment undoubtedly relied upon Munna Lal Jain
case (supra) which is also a three-Judge Bench judgment in
this behalf. The relevant portion of the judgment has also
been extracted. Once again the extracted portion in turn
refers to the judgment of a three-Judge bench in Reshma
Kumari case (supra). The relevant portion of Reshma
Kumari case in turn has referred to Sarla Verma case and
given its imprimatur to the same. The loss of dependency is
thus stated to be based on : (i) additions / deductions to be
made for arriving at the income; (ii) the deductions to be
made towards the personal living expenses of the deceased;
and (iii) the multiplier to be applied with reference to the
age of the deceased. It is the third aspect which is of
significance and Reshma Kumari categorically states that it
does not want to revisit the law settled in Sarla Verma case
in this behalf.
11. Not only this, the subsequent judgment of the
Constitution Bench in Pranay Sethi case (supra) has also
been referred to in Sube Singh case for the purpose of
calculation of the multiplier.
12. We are convinced that there is no need to once again
take up this issue settled by the aforesaid judgments of
three- Judge Bench and also relying upon the Constitution
Bench that it is the age of the deceased which has to be
taken into account and not the age of the dependents'
7. In the present case, since the deceased was 20 years old, a
multiplier of '18' ought to have been applied as per the decision
of this Court in Sarla Verma case."
10. Further this Court in the case of Divisional Manager, Reliance
General Insurance Co. Ltd. v. Manjushree Mohapatra and Another, (in
MACA Nos.570 & 640 of 2018, decided on 6th December, 2019) have
held that, when a bachelor dies, his age shall be taken into account while
applying multiplier. However said decision of this court in Manjushree
Mohapatra case (supra) has been stayed by the Hon'ble Supreme Court in
SLP (Civil) Nos.11757-11758 of 2019.
11. In view of the authoritative pronouncements discussed above, the
logic of counting age of the parents for the purpose of multiplier as the
dependents does not hold good and the Tribunal has failed in his approach
in counting the age of the parents, instead of the age of the deceased.
12. No challenge has been made from the side of the Respondent with
regard to the dependency of the parents and unmarried sister of the
deceased. Nothing has also been brought on record to discard the claim of
dependency of the father and unmarried sister on the deceased. Therefore
the finding of the learned Tribunal in favour of the claimants as
dependents of the deceased is left undisturbed.
13. Applying the principles enumerated in Pranay Sethi case (supra)
the compensation amount is modified as per the following table.
(i) 50% of annual income Rs.7000/- X 12 =
Rs.84,000/-
(ii) Adding 40% towards future Rs.84,000 + Rs.33,600/- =
prospects Rs.1,17,600/-
(iii) Applying multiplier '17' Rs.1,17,600 X 17 =
(in reference to the age of the deceased) Rs.19,99,200/-
(iv) Adding Rs.70,000/- towards funeral Rs.19,99,200 +
expenses, loss of estate and loss of Rs.70,000/- =
filial consortium for the mother, the Rs.20,69,200
total compensation comes to
14. In the result the appeal is disposed of with a direction to the
Respondent, i.e., State of Odisha to deposit the total compensation of
Rs.20,69,200/- (twenty lakh sixty-nine thousand two hundred) along with
interest @ 6% per annum from the date of filing of the claim application,
i.e. 19th October, 2009 before the learned tribunal within a period of two
months from today; where-after the same shall be disbursed in favour of
the claimants on such terms and proportion to be decided by the learned
Tribunal.
15. The appeal is disposed of.
(B.P.Routray)
Judge
M.K. Panda/Sr. Steno
