(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgment and order passed by the Tribunal in MACP No.1039/96, whereby the Tribunal has awarded compensation of Rs.4,51,000 with interest at the rate of 12 p.a.
2. The short facts are that the deceased Kishorbhai Karsanbhai Patel on 02.05.1995 when was going in his maruti car bearing No.GJ17C136 from Khambholaj to Umreth, one jeep bearing GUM7695 dashed with the maruti car and the deceased sustained injuries and thereafter, he succumbed to the injuries. The said accident gave rise to the claim petition being MACP No.1039/96 before the Tribunal for compensation of Rs.35 lakhs. The Tribunal at the conclusion of the hearing passed the aforesaid judgment and award. Against the said judgment, the present appeal has been preferred by the original claimantsappellants herein for enhancement of the compensation.
3. We have heard Mr.Mousim Hakim for the appellants and Mr.Majmudar, learned counsel appearing for respondent no.3 insurance company, the main contesting party. The other respondents no.1 and 2 are served but none appears on their behalf. We have considered the reasons recorded by the Tribunal in the Judgement.
4. The learned counsel appearing for the appellants raised mainly two contentions, one was that the assessment of the income by the Tribunal after considering the prospective income is erroneous. In his submission, the deceased at the time of accident had regular income of Rs.7000 p.m. as Consultant from Fleetweld Ltd. and he had also agricultural income. But the Tribunal has assessed only Rs.6000 after considering the prospective income. The second contention is that towards personal expenses, the Tribunal has deducted 1/3rd of the amount in spite of the fact that the number of claimants were more than three and in his submission, 1/4th of the amount was required to be deducted towards personal expenses.
5. Whereas Mr.Majmudar, learned counsel for the respondent no.3 insurance company submitted that it is true that the certificates of the salary in the year 1994 as well as for the income of the year 1995 had come on record, and on behalf of the Company, the witness was examined but in his submission, the deposition on behalf of the company was not reliable inasmuch as when he was crossexamined, he had stated that necessary documents can be produced but when he was called upon to produce the document, he filed the affidavit that company is closed since 2001 and there was dispute with the labourers and the documents have been destroyed. It was therefore submitted that the computerised statement of the company were unreliable and therefore the Tribunal has rightly assessed the income.
6. The contention of Mr. Majmudar that the evidence is unreliable of the witness who was examined on behalf of the company in our view cannot be accepted so as to discard the evidence in toto. If the witness is fully believed, the income of the deceased at the time of the accident would come to Rs.4500 p.m. plus Rs.7500 p.m., total Rs.11500. But we do find that since TDS certificate or income tax returns were not produced or did not come on record, nor the other relevant record of the company, even if the trustworthiness of the statement of the witness is diluted, income can reasonably be assessed at Rs.7000 per month.
7. The perusal of the record at mark 19/9 and 19/10 onwards which have been admitted as a part of the record of the company by the witness Shri Dipak Sakhidas Patel on behalf of the Company shows that upto March 1995, the income of the deceased was Rs. 4500 as salary. Evidence has come on record that the deceased was being paid Rs.7000 in the month of April 1994, May 1994, June 1994 onwards till February 1995. If we consider the best evidence available, the same would be of Rs.7000 per month more particularly because even in the claim petition, it has been stated that the deceased was getting Rs.7000 monthly as Technical Consultant from Fleetweld Ltd.
8. It is true that the contention of the claimants before the Tribunal was that the deceased was earning the income of Technical Consultant in addition to his salary but we have to keep in mind that both the Companies were owned by only one person and no proof is produced for deduction of TDS or income tax return being filed by the deceased. Therefore, considering the facts and circumstances and upon reappreciation of the evidence, it appears to us that appropriate assessment of the income of the deceased at the time of accident could be Rs.7000 per month. Further, the aspects of prospective income was also required to be considered keeping in view the educational background of the deceased that he was B.Sc. gold medalist and was also working as a consultant. If the prospective income is considered, then it would be 1.5 times the actual income and consequently come to Rs.10,500 per month. As against the same, the Tribunal has erroneously assessed the income as Rs.4000 and after considering the prospective income, has arrived at the figure of Rs.6000 per month. Under the circumstances, the compensation was required to be ascertained treating the income as Rs.10,500 for the purpose of economic loss.
9. There is substance in the contention of the learned counsel for the appellants that as number of claimants were more than three, the Tribunal ought to have deducted 1/4th of the amount for the personal expenses. The said aspect should not detain us further in view of the decision of the Apex Court in the case of Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr (2009) 6 SCC 121 and more particularly the observations made at para 30 of the said judgment which reads as under “30. 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.”
10. In view of the aforesaid observations and discussions, taking the income for economic loss, if it is considered at Rs.10500 per month, and 1/4th of the amount of Rs.2625 is deducted towards personal expenses, the net amount would come to Rs.7875 per month. Out of the said amount, the Tribunal has held the deceased liable to the extent of 40% and apportionment of the contributory negligence to the driver of the jeep insured with the respondent no.3 company is to the extent of 60%. Such amount would come to Rs.4725/ per month and for one year it would come to Rs.56,700 and if further considered with the multiplier of 15, as applied by the Tribunal, such amount would come to Rs.8,50,500 towards the economic loss for the purpose of compensation. In addition to the above, the Tribunal has considered Rs.32000 towards compensation under other heads and 60% of the said amount would come to Rs.19200. Accordingly, the total compensation would come to Rs.8,69,700. As against the same, the Tribunal has awarded compensation of Rs.4,51,200. Under the circumstances, the judgment and award passed by the Tribunal deserves to be modified.
11. In view of the aforesaid observations and discussions, it is held that the original claimants shall be entitled to the compensation of Rs.8,69,700 from the respondents. However on the aspect of interest, the Tribunal has awarded interest at the rate of 12% p.a. on the amount of Rs.4,51,200, which we do not find it to be interfered with but on the additional amount of compensation, i.e., Rs.4,18,500, we find it proper to award interest at the rate of 9% p.a. from the date of the application till the amount is actually deposited with the Tribunal. We also find that the apportionment of the compensation awarded by the Tribunal does not deserve to be disturbed but on the additional amount of compensation, the Tribunal shall permit withdrawal to the extent of 30% to the original claimants in proportion to their share and remaining 70% of the amount shall be invested by the Tribunal in fixed deposit receipt for a period of five years but with the condition that the original claimants shall be entitled to the periodical interest as and when it becomes due and upon expiry of the said period of investment of five years, the amount will be available to the original claimants unless there is prohibitory order or any further order of any higher forum known to law.
12. Appeal is allowed to the aforesaid extent. Considering the facts and circumstances, the respondents shall pay the cost on the additional amount of compensation of Rs.4,18,500.
(JAYANT PATEL, J.) (C.L. SONI, J.) *bjoy