Aggrieved by the judgment and award rendered by the Motor Accident Claims Tribunal in MACP No.1681 of 1993 on 20/05/2004, under Section 166 of the Motor Vehicle Act, (for short ‘the Act’) awarding a compensation in the sum of Rs.13,05,064/-, with interest at the rate of 9% per annum from the date of petition till realization, holding the present appellant jointly and severally liable to pay the compensation, the appellant – insurance company – original opponent No.3, is before this Court in appeal under Section 173 of the Act, questioning the award insofar as the quantum to an extent of Rs.7 Lacs is concerned. 2. The original claimants are also before this Court by way of filing Cross Objection No.192 of 2012 claiming enhancement of compensation on various counts.
3. As the main contest between the parties is only on quantum, it is not necessary to discuss other facts in detail.
4. By way of impugned award, the tribunal considered Rs.10,000/- as the income of the deceased;
deducted therefrom 1/3rd amount towards the personal expenses of deceased and, applied multiplier of 16 considering 34 years as age of the deceased at the time of accident to calculate the net dependency of Rs.6667/- and, awarded Rs.12,80,064/- towards dependency loss. The tribunal also awarded a sum of Rs.10,000/- each towards expectation of life and loss of consortium respectively and Rs.5,000/- under the head of transportation and funeral expenses.
5. While assailing the award of the tribunal, in part, as aforesaid, learned Advocate for the appellant would submit that prospective income of the deceased at Rs.10,000/- per month as considered by the tribunal, is not just and proper and is not supported by any cogent evidence. In his submission, before considering Rs.10,000/- per month as prospective income, the tribunal failed to consider various factors like earning capacity of the deceased, normal expectancy of life, nature of service, educational qualifications, status of the family, estimate of the financial assistance expected by legal heirs, etc. and has, therefore, arrived at unjust figure of prospective income of Rs.10,000/- per month.
5.1 It is also contended that, while applying the multiplier of 16, the tribunal was in serious error in taking into consideration only the age of the deceased and failed to consider the age of parents of the deceased, who were dependent upon him. In his submission, this approach of the tribunal is against the well settled principles of law that, in fatal accident, age of parents is also a significant relevant factor, since the deceased during his lifetime, in absence of the accidental death would have maintained his parents for rest of their age and considering growing age of parents, multiplier of 16 is unreasonable.
5.2 It is next contended that in view of the decision in case of Asha & Ors., Vs. United India Insurance Co. Ltd. And Anr., [2004 ACJ 448], net income available to the deceased on the date of his death only could have been taken into account and not the gross income of Rs.5750/- per month. It is submitted that by considering the gross income, the tribunal has made unjust award.
6. As against the aforesaid submissions, it is submitted by learned Advocate for the claimants that the tribunal has committed serious error in not considering and appreciating the deposition of the first respondent herein wherefrom it was borne out that deceased was earning Rs.6,000/- per month at the time of his death. He also submitted that the tribunal has failed to take into consideration the documentary evidence as to income of the deceased produced by GEB, with whom he was employed. In his submission, considering the documentary evidence produced by GEB, Rs.50,000/- per month could have been the income of the deceased had he been alive for next 25 years until the date of retirement. He submitted that the mean of income at the time of retirement i.e. Rs.50,000/- and the income the deceased was earning at the time of death i.e. Rs.6,000/- was required to be considered.
6.1 It is submitted that latest income of the deceased ought to have been taken into consideration and considering his age and also considering that 25 years of service was still available to the credit of the deceased, multiplier of 17 instead of 16 should have been awarded by the tribunal. He further submitted that, however, the tribunal failed to consider the second schedule to the Motor Vehicles Act, and thus did not apply proper multiplier.
6.2 It is next contended that considering the dependents in the family of the deceased only ¼th of the prospective income could have been deducted by the tribunal towards personal expenses of the deceased.
6.3 It is submitted that the tribunal has also erred in considering lesser amount than what was legally available to the claimants towards the conventional amount, funeral expenses, transportation expenses and pain, shock and suffering.
7. From the aforesaid submissions, it appears that this Court is required to appreciate the evidence adduced by the parties as regards the quantum under various heads.
8. It is noticed from the evidence on record that basic salary of the deceased in May, 1993 i.e. month in which, he met with accidental death was Rs.1,670/- per month. Though, the deceased expired in the said month, the tribunal generously added three increments of Rs.250/- each and, thus it arrived at a basic salary of Rs.2,420/- per month and adding dearness allowance as was payable in the year 1996, the basic salary was estimated at Rs.10,000/- per month in the year 1996. It is settled legal position that salary as on the date of the accident is required to be taken into consideration and then the prospective income keeping in view future prospect of the salaried employee is required to be ascertained. The evidence on record reveals that on the date of death of the deceased, he was earning Rs.5,750/- per month and tribunal took into consideration Rs.10,000/- per month as income of the deceased in the year 1996 on the presumption that had he been alive, he would have drawn such income. Therefore, effectively, the tribunal has given due weightage to the prospective income of the deceased by nearly doubling the income drawn by the deceased on the date of the accident. The argument that the deceased, had he not met with an accident, had a chance of increase in his income, would have got promotion and thus would have earned Rs.50,000/- per month on the date of retirement and that the claimants were entitled to be compensated on the basis of mean of income on the date of death of deceased (Rs.6,000/-) and on the date of retirement (Rs.50,000/- per month), is totally misconceived, inasmuch as, relevant factors like uncertainty of life and uncertainty of service career of a person cannot be lost sight of while compensating the heirs of the deceased. It will be unreasonable to ignore such fact and to say, with all precision, that had the deceased not met with accident, he would have reached his age of superannuation.
9. The decisions in case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation and Anr., [AIR 2009 SC 3104] and in case of Santosh Devi Vs. National Insurance Company Limited & Ors., [2012 ACJ 1428], relied upon by the learned Counsel for the claimant in support of his argument, are in fact not an authority on the issue, it rather, inter-alia lays down a proposition of adding either 50% or 30% of the actual salary, depending upon the age of the deceased, so as to arrive at future prospective income of the deceased and as discussed in the foregoing paragraphs of this judgment, effectively, the claimant has already received such benefits as the tribunal fixed his income at Rs.10,000/- per month against his actual income of Rs.5,750/- per month on the date of accident. Similarly in view of above discussion, it is misconceived for the learned Advocate for the claimants to make a claim on the basis of the income earned by the deceased in the year 2003 since deceased had already died in the year 1993.
10. It is also misconceived for learned Advocate for the appellant to contend that only net income i.e. the basic salary can be taken into account for the purpose of dependency loss in light of the decision rendered in the case of Asha (Supra). The reliance placed upon the said case is misconceived, inasmuch as, it is not an authority on the issue as to whether the net income or the gross income after the deductions should be considered. On the facts of the case however, the Hon’ble Apex Court approved the approach of the High Court concerned in deducting amounts towards LIC and HBA, but no law on that aspect was laid down. It is required to be kept in mind that all the financial benefits in whatever form they may be available to an employee, are his income and all the losses like tax, which he is liable to pay under the law without expecting any return, are required to be deducted. Dearness allowance is always paid to an employee so as to compensate him against depreciating money power and rising cost. This amount is always available to an employee in the pay-package and forms part of take-home salary. The dependents during the lifetime of the deceased would also have relied upon the dearness allowance and, therefore, even after the death of the deceased, such benefit must be made available to them. We, therefore, are not inclined to accept the submission to the contrary made by learned Advocate for the appellants on this count.
11. As regards adopting the multiplier, it is true that normally age of the parents is also a relevant a factor in adopting the multiplier, but it appears from record that while the deceased died in the year 1993, his father was alive in the year 2003 when the evidence was being recorded in the present case. Therefore, there was a proof with the tribunal regarding longevity of life of his father. That apart, other dependents being two minors and his wife and mother were also there and, therefore, the tribunal was justified in applying 16 multiplier. Further, appropriate multiplier against the age group of 31 to 35 years is 16 in view of paragraph No.42 of the decision in case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation and Anr., [AIR 2009 SC 3104] and, therefore, the claim of 17 multiplier by the claimant cannot be acceded to.
12. As to contentions that only ¼th of the prospective income could have been deducted by the tribunal towards the personal expenses of the deceased, it can be seen from the record that the deceased had retired parents and wife of the deceased was receiving a pension of Rs.800/- per month and she was also serving in GEB as compassionate appointee on the post of Senior Assistant Typist with gross salary of Rs.6,000/-. These facts are borne out from the cross-examination of the widow of the deceased – Jagrutiben examined at Exh.35. Therefore, the tribunal was justified in deducting 1/3rd towards the personal expenses of the deceased.
13. In view of the foregoing discussions, we do not find any merits either in appeal or cross- objection. The appeal as well as cross-objection stand dismissed.
(D.H.WAGHELA, J.) sompura (G.R.UDHWANI, J.)