The challenge in this appeal is to the impugned judgment and award rendered by the Ld. M.A.C. Tribunal [Aux.] Rajkot on 20/6/2005 in M.A.C. Petition No. 836/1999, whereby the aforementioned claim petition till realization with proportionate costs thereon, to the original claimants, who are respondent nos. 1/1 to ¼ from the appellant – Oriental Insurance Co. Ltd., which was original opponent no. 3, together with respondent nos. 2 to 5, who were original opponent nos. 1, 2, 4 and 5. The Tribunal further directed that the appellant [original opponent no. 3] Insurance Company shall deposit 80% of the awarded amount and the respondent no. 5 Insurance Company [opponent no. 5] shall deposit 20%
aforementioned award by preferring this appeal.
2. As per the case of the original claimants, the vehicular accident occurred on 11/4/1999 at about 10.30 p.m., near village Ribda on Rajkot – Gondal National Highway. At that time, the deceased – Chandrashekhar Jobanputra was proceeding on motor cycle No. GJ-3-BB-2485 as a pillion rider, which was driven by respondent no. 4 [opponent no. 4 – Rajeshbhai] and when they reached near village Ribda, at that point of time, the truck bearing Registration No. GTW-4210 came in a rash and negligent manner from behind, which was driven by respondent no. 2 herein [opponent no. 1], which belonged to respondent no. 3 [opponent no. 2] and which was insured with the appellant [opponent no. 3] – Insurance Company. It was the case of the claimants that the aforementioned truck dashed from behind on the rear part of the motor cycle and in the result, the pillion rider Chandrashekhar sustained serious bodily injuries and succumbed to the injuries. It was the case of the claimants that at the relevant time, the aforementioned motor cycle was insured with respondent no. 5 [ opponent no. 5] New India Assurance Co. Ltd. That at the time of the accident and death, the deceased was aged about 35 years and he was Clerk-cum-Typist in Mari-time Board [Gujarat] in the project known as “Rozi Pier” and used to earn monthly remuneration of Rs.5,456/-. The original claimants, who happened to be widow, minor son and parents [respondent nos. 1/1 to ¼ herein] filed the aforementioned claim petition to recover in-all Rs.10 lac by way of compensation from the appellant, so also from the respondent nos. 2 to 5 herein [original opponent nos. 1 to 5].
3. Before the Tribunal, the Insurance Companies of both the vehicles, namely the appellant, so also respondent no. 5 – Insurance Companies filed written statements and disputed the case of the claimants. The Insurance Companies of both the vehicles attributed negligence qua the driver of other vehicle. Before the Tribunal, oral and documentary evidence was adduced and ultimately, while replying issue no. 1 regarding the negligence, the Tribunal came to the conclusion that the rider of the motor cycle, namely respondent no. 4 [opponent no. 4] was negligent to the extent of 20% and the driver of the truck, namely the respondent no. 2 [opponent no. 1] was negligent to the extent of 80%. The Tribunal then came to the conclusion that at the time of accident, the deceased was aged about 34 years and he was serving as Clerk-cum-Typist having a permanent job. The Tribunal then observed that though the monthly salary of the deceased was Rs.5,456/-, but considering the permissible deductions like GPF, HRA, and other such allowances, the carry home monthly salary was Rs.3,166/- at the time of the accident. The Tribunal then came to the conclusion that considering the age of the deceased, had he survived, then at the time of his retirement, he would have earned Rs.6,800/-
p.m. Thus, the future prospective monthly income of the deceased was considered to be Rs.6,800/-. The Tribunal came to the conclusion that in-all there being four dependents on his income, this was a fit case to deduct 1/4th amount towards self expenses of the deceased and, therefore, deducted Rs.1,700/- towards self expenses and thus Rs.5,100/- p.m., was considered to be the loss to the monthly dependency benefits and annual loss to the dependency benefits comes to Rs.61,200/-. The Tribunal applied multiplier of 17 years and observed that the claimants were entitled to recover Rs.10,40,400/- by way of compensation under the head of loss to the dependency benefits. The Tribunal awarded Rs.50,000/- by way of loss of consortium, Rs.1 lac by way of conventional amount and Rs.10,000/- by way of funeral expenses. Thus, the Tribunal awarded in- all Rs.12,00,400/- by way of compensation.
4. Mr. Anal Shah, Ld. Advocate for the appellant – Insurance Company, at the outset, submitted that the Tribunal committed error while awarding Rs.12,00,400/- by way of compensation to the claimants. It is submitted that the Tribunal basically erred in coming to the conclusion that the future monthly prospective income of the deceased can be assessed at Rs.6,800/-. Mr. Shah relied upon a decision rendered in the case of Oriental Insurance Co. Ltd. v/s. Jashuben [2008] 4 S.C.C. 162, wherein Hon'ble the Apex Court held that in case when the deceased being salaried employee, the income of the deceased on the date of retirement is not relevant factor. Mr. Shah relied upon a decision rendered in the case of Sarla Verma v/s. Delhi Transport Corporation reported in [2009] 6 S.C.C. 121 and more particularly para. 11 in the said decision, wherein it has been observed that to calculate the future prospective income, an addition of 50% of actual salary to the actual salary income of the deceased should be considered, where the deceased had a permanent job and was below 40 years. Accordingly, Mr. Shah submitted that in the instant case, taking into consideration even the carry home monthly income of the deceased to be Rs.3,166/- as held by the Tribunal, the future prospective income, in any case, cannot be more than Rs.4,749/- p. m.
4.1. Mr. Shah then submitted that the Tribunal erred in deducting 1/4th amount towards self expenses of the deceased as the father can never be considered as the dependent on the income of his deceased son and, therefore, the Tribunal should have deducted 1/3rd amount, namely Rs.1,583/- p.m., towards self expenses of the deceased. It is submitted that deducting Rs.1,583/- from Rs.4,749/-, it can safely be said that the claimants sustained monthly loss to the dependency benefits at Rs.3,166/- and the annual loss to dependency benefits comes to Rs.37,922/-.
It is submitted that the Tribunal erred in applying multiplier of 17 years, but considering the age of the deceased and the age of the dependents, the Tribunal should have adopted the multiplier of 16 years. It is, therefore, submitted that at the most, it can be said that the total loss to the dependency benefits comes to Rs.6,07,872/-.
4.2. Mr. Shah submitted that as per the case of Sarla Verma [supra], the Tribunal should have granted Rs.10,000/- under the head of loss of consortium, Rs.20,000/- under the head of conventional amount and Rs.5,000/- towards funeral expenses. It is submitted that, at the most, it can be said that the claimants were entitled to recover Rs.6,42,872/- by way of compensation.
4.3. Mr. Shah further submitted that the Tribunal erred in awarding running interest @ 9% p.a., but at the most it should have been 6% p.a. Mr. Shah, therefore, submitted that the appeal may be accordingly allowed.
5. Mr. M R Maulavi, Ld. Advocate for Mr. Shakeel Qureshi, Ld. Advocate for the respondent nos. 1/1 to 1/4 [original claimants] fully supported the impugned judgment and award rendered by the Tribunal and submitted that the Tribunal rightly considered the future prospective income of the deceased. To arrive at such conclusion, the Tribunal took into consideration the over-all evidence produced by the claimants in this case and there is no reason whatsoever to interfere with the said findings. Mr. Maulavi submitted that there is positive evidence to come to the conclusion that even the father was dependent upon the income of deceased and, therefore, no error is committed by the Tribunal by deducting 1/4th amount towards self expenses of the deceased. The Tribunal rightly considered the multiplier of 17 years. It is submitted that though, on face of it, it may look that the Tribunal awarded exorbitant amount under the heads of loss of consortium, conventional amount and funeral expenses, but while awarding the amount of compensation under these three heads, the Tribunal took into consideration the over-all evidence on record. It is submitted that the impugned judgment and award came to be passed in the year 2005 and, therefore, the running interest @ 9% p.a., cannot be said to be on higher side. It is, therefore, submitted that the appeal may be dismissed.
6. Considering the submissions advanced on behalf of both the sides, it can safely be said that the appellant mainly assails the quantum of compensation awarded by the Tribunal to the original claimants.
7. I have taken into consideration the record and proceedings and the impugned judgment and award rendered by the Tribunal. Considering para. 11 in the impugned judgment and award, it seems that the Tribunal came to the conclusion that as per the evidence on record and more particularly the pay slip of the deceased showing the last month's salary prior to his death, the gross monthly salary of the deceased was Rs.5,456/-. It further transpires that the Tribunal rightly considered certain permissible deductions like GPF, GPF loan, group insurance, HRA, etc. The Tribunal rightly observed that while considering the amount of compensation under the head of loss to the future dependency benefits, the aforementioned deductions are required to be deducted from the total [gross] actual salary of the deceased. Thus, for the purpose of awarding compensation under this head, after the aforesaid deductions, the carry home salary is required to be considered. It further transpires that after deducting the aforesaid amount, the Tribunal appears to have rightly held that the carry home salary of the deceased can be said to be Rs.3,166/- p.m. The Tribunal in para.
12 in the impugned judgment and award, came to the conclusion that as per the evidence produced by the claimants, at the time of retirement, the basic salary including DA and other allowances of the deceased would have been Rs.10,388/- p.m. The Tribunal, then added Rs.3,166/- in Rs.10,388/-, which comes to Rs.13,554/- and divided said figure by two and half and thus according to the Tribunal, the monthly prospective future income of the deceased can be assessed at Rs.6,777/-, rounded off at Rs.6,800/-.
8. I have taken into consideration the ratio laid down by the Hon'ble Apex Court in Jashuben's case [supra], wherein the Hon'ble Apex Court observed that the income of the deceased at the time of retirement can never be relevant factor. I have also taken into consideration the decision rendered in Sarla Verma's case [supra], more particularly para. 11 in the said decision, wherein the Hon'ble Apex Court observed that “we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years.”
9. In above view of the matter, in the instant case, considering the age of the deceased being 34 years and the actual carry home salary being Rs.3,166/- p.m., it can safely be said that the future prospective monthly income of the deceased can be assessed at Rs.4,749/-. The Tribunal deducted 1/4th amount towards self expenses of the deceased. On behalf of the appellant, it has been submitted that the Tribunal should have deducted 1/3rd amount since father is not dependent. I have taken into consideration the relevant observations made by the Tribunal in the impugned judgment and award and I have also taken into consideration that along with parents, in-all there were four family members in the family of the deceased, excluding the deceased. Considering over-all evidence on record, there does not appear any error having been committed by the Tribunal in coming to the conclusion that on the income of the deceased, excluding the deceased, there were other four dependents. Thus, the Tribunal did not commit any error while coming to the conclusion that this is a fit case wherein 1/4th amount should be deducted towards self expenses of the deceased. Under such circumstances, from the monthly prospective income of Rs.4,749/-, 1/4th deduction comes to Rs.1,187/- and, therefore, it can safely be said that the monthly loss to the future dependency benefits comes to Rs.3,562/-. Thus annual loss to the future dependency benefits comes to Rs.42,744/-. The Tribunal adopted the multiplier of 17 years. However, considering the age of the deceased, so also the age factor of the dependents and considering para. 21 in Sarla Verma's case [supra], the Tribunal should have adopted the multiplier of 16 years. Thus, the total loss to the dependency benefits can be said to be Rs.6,83,904/-. It further transpires that the Tribunal erred in awarding Rs.50,000/- towards loss of consortium, Rs.1,00,000/- towards conventional amount and Rs.10,000/- towards funeral expenses. Considering the observations made in Sarla Verma's case [supra], this Court is of the opinion that the claimants are entitled to recover Rs.10,000/- under the head of loss of consortium, Rs.20,000/- under the head of conventional amount and Rs.5,000/- towards funeral expenses. Thus, it can safely be said that the claimants are entitled to recover total amount of Rs.7,18,904/-, rounded off to Rs.7,18,910/-.
10. The Tribunal awarded running interest @ 9% p.a. Considering the fact that the original claim petition was of the year 1999 and the award by the Tribunal having been passed in the year 2005, this Court is of the opinion that the Tribunal should have awarded running interest @ 7.5% p.a.
11. It appears that when this appeal came to be admitted, the appellant Insurance Company filed Civil Application for Stay No. 12554/2005 and this Court vide initial order dated 16/12/2005, directed the appellant Insurance Company to deposit with the concerned Tribunal the awarded amount. Thereafter, vide order dated 23/1/2007 this Court directed the concerned Tribunal to invest 90% of the amount in FDR and it seems that 10% amount was permitted to be disbursed to the original claimants. It is pertinent to note that as per the award passed by the Tribunal and more particularly, while reply issue no. 1 regarding negligence, the Tribunal appears to have rightly come to the conclusion that the appellant herein [original opponent no. 3] was required to deposit 80% and the remaining 20% of the awarded amount was required to be deposited by the respondent no. 5 [original opponent no. 5] New India Insurance Co. Ltd. Under such circumstances, the claimants are thus entitled to recover Rs.7,18,910/- by way of compensation with running interest @ 7.5% p.a., from the date of the filing of the claim petition till the amount came to be deposited by the appellant Insurance Company qua its share being 80% with the concerned Tribunal. Under such circumstances, qua 80% share of the appellant, the excess amount deposited by the appellant Insurance Company and which are lying in the FDR, shall be returned to the appellant Insurance Company since the original claimants are held to be entitled to recover Rs.7,18,910/- by way of compensation with aforementioned running interest and proportionate costs. The instant appeal, therefore, deserves to be partly allowed.
12. The appeal is partly allowed and the impugned judgment and award rendered by the Ld.
M.A.C. Tribunal [Aux.] Rajkot on 20/6/2005 in M.A.C. Petition No. 836/1999, awarding Rs.12,00,400/- by way of compensation to the respondent nos. 1/1 to ¼ herein [original claimants] with running interest @ 9% p.a., from the date of the filing of the claim petition till the realization with proportionate costs thereon is hereby modified and it is hereby directed that the original claimants are entitled to Rs.7,18,910/- [Rupees seven lac eighteen thousand nine hundred ten only] by way of compensation with running interest @ 7.5% p.a., from the date of the filing of the aforementioned claim petition till the time when the appellant Insurance Company deposited with the concerned Tribunal its share being 80% of the awarded amount pursuant to the initial order dated 16/12/2005 passed in Civil Application No.
12554/2005. As observed above, pursuant to the order dated 23/1/2007 passed in Civil Application No. 12554/2005, 90% amount was ordered to be invested in fixed deposit in nationalized bank, the appellant Insurance Company shall be entitled to take back the excess amount deposited by it from the concerned Claim Tribunal by making appropriate application and the remaining amount in terms of the modified order of compensation passed by this Court, the Tribunal shall pay said amount by way of account payee cheques to the concerned original claimants. No order as to costs.
(J.C.UPADHYAYA, J.) * Pansala.