1. The appellants herein have challenged the award dated 20.02.2004 passed by the Motor Accident Claims Tribunal (Aux), Surendranagar in Motor Accident Claims Petition No. 340 of 1992 so far as the Tribunal awarded Rs. 4,20,000/- by way of compensation to the original claimants along with 9% interest.
2. It is the case of the appellants that while Shri Ghanshyambhai was standing near a lorry a truck driven by the original opponent no. 1 in a rash and negligent mannerhit him as a result of which he sustained serious injuries. He succumbed to those injuries. The claimants being legal heirs and representatives of the deceased therefore filed claim petition for compensation to the tune of Rs. 8,00,000/-. The Tribunal after hearing the parties passed the aforesaid award.
Mr.
Maulik J. Shelat, learned advocate appearing for the appellant submitted that the Tribunal erred in quantifying the award at Rs. 4,20,000/- . He submitted that the dependency loss awarded by the Tribunal is on the higher side and therefore the same is required to be reduced. He also submitted that the Tribunal erred in considering the prospective income of the deceased at Rs. 3300/- in absence of any cogent evidence on record. He further submitted that considering the dependents of the deceased the Tribunal has wrongly deducted 1/3rd from the income instead of 1/4th. He has relied upon a decision of the Apex Court in the case of Smt Sarla Dixit & Anr Vs. Balwant Yadav & Ors, reported in 1996 AIR 1274 (=1996 SCC (3) 179) and in the case of Sarla Verma & Ors Vs. Delhi Transport Corp. & Anr. Reported in 2009(6) SCC 121.
4. Mr.
Acharya, learned advocate appearing for the respondent supported the impugned award and submitted that the award having been passed after considering the evidence in detail does not call for any interference by this Court. He submitted that the Tribunal has rightly assessed the income assessed by the Tribunal.
5. Before proceeding further it is required to be noted that the issues with regard to income and deduction by way of personal expenses are already settled by the decisions of Apex Court. In the case of Smt Sarla Dixit & Anr Vs. Balwant Yadav & Ors, reported in 1996 AIR 1274 (=1996 SCC (3) 179) it is held as under:
"...
Adopting the same scientific yardstick as laid down in the aforesaid judgement, the computation of compensation in the present case can almost be subjected to a well settled mathematical formula. Deceased in the present case, as seen above, was earning gross salary of Rs.1,543/- per month. Rounding it upto figure of Rs.1,500/- and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderables like accidental death while discharging military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, i.e. upto Rs.3,000/- per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average future monthly income could be arrived at by adding the actual gross income at the time of death, namely, Rs.1,500/- per month to the maximum whichhe would have otherwise got had he not died a premature death, i.e. Rs.3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2, i.e. Rs.2,200/-. Rs.2,200/- per month would have been the gross monthly average income available to the family fo the deceased had he survived as a bread winner...."
5.1 In the case of Sarla Verma & Ors Vs. Delhi Transport Corp. & Anr. Reported in 2009(6) SCC 121 it is held as under:
"In Susamma Thomas this Court increased the income by nearly 100%. In Sarla Dixit the income was increased only by 50% and in Abat Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties,w e are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the decased towards future prospects, whee the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age fo the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Thouugh the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Wehr e the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.) the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
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 numbers 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.
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 ti 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 parents/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 dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be Dependant on the father. 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 family of the bachelor is large and Dependant on the income of the deceased, as in the 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.
The multiplier to be used should be as mentioned in column (4) of the Table (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
6. Thus considering the formula laid down in the case of Smt. Sarla Dixit (supra) the income of the deceased is to be calculated. In the present case the Tribunal has rightly assessed the income of the deceased at Rs. 1200/-. Nothing is pointed out to take a different figure in that regard. The said income should be doubled and actual gross income should be added. By doubling, the amount would come to Rs. 2400/- and by adding current income of Rs. 1200/- it would come to Rs. 3600/-. Average monthly income can be derived by dividing the same by 2. Therefore the average income would come to Rs.1800/- per month and Rs. 21,600/- per annum.
6.1 The Tribunal has wrongly deducted 1/3rd from the income which infact should be 1/4th considering the number of dependents. Accordingly, deducting 1/4th from the total income for personal expenses, the amount dependency loss per annum shall come to Rs. 16,200/-. The multiplier of 15 adopted in the present case is on lower side. Multiplier of 17 shall be just and proper and accordingly the future dependency loss shall come to Rs. 2,75,400/-. Rs. 25000/- is required to be paid towards conventional expenses. Therefore total amount of compensation shall come to Rs. 3,00,400. Against this, the Tribunal has awarded Rs. 4,20,000/- which is excessive. Therefore an additional amount of Rs. 1,19,600/- is required to be awarded.
7. Accordingly, appeal is partly allowed. The claimants shall be entitled to only Rs. 1,19,600/- by way of total compensation. The balance amount along with proportionate interest shall be refunded to the insurance company. The award of the Tribunal is modified accordingly. No order as to costs.
(K.S.
JHAVERI, J.) Divya// Top