(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) These appeals arise out of judgment and award dated 29th June, 2004 passed by the Motor Accident Claims Tribunal (Aux.) Ahmedabad (Rural) in M.A.C.P. No.751/95. The appeals arise in following factual back ground.
2. On 15.2.1995, at around 11.00 o'clock in the morning, one Parshottambhai Patel was travelling as a passenger in jeep car going from Unjha to Baroda. When the vehicle reached near Boriavi, opposite Ganesh Saw Mills, a truck coming from the opposite direction dashed against the jeep. Parshottambhai received fatal injuries. His dependents i.e.widow, two children and aged parent therefore filed the said claim petition in which initially they claimed compensation of Rs.15,00,000.00 from the opponents. Such claim was later on revised to Rs.45,00,000.00. Opponents included owners and insurers of both the vehicles. Jeep was insured by the United India Insurance Co. Ltd. The truck was insured by the National Insurance Co. Ltd.
3. Before the Claims Tribunal, the claimants examined one Kantilal Maganlal at Exh. 51 who was co-passenger in the jeep. The claimants also produced panchanama of the scene of accident at Exh. 42. On the basis of such evidence, the Claims Tribunal concluded that the accident occurred due to rash and negligent driving of both the vehicles. The truck driver was attributed 90 per cent negligence whereas 10 per cent negligence was attributed to the driver of the jeep.
4. With respect to compensation, the claimants established before the Claims Tribunal that the deceased was a Bachelor of Veterinary Science and Animal Husbandry. He was aged 42 years on the date of accident. He was serving as Veterinary Officer in Government Dispensary at Balisana, Patan Taluka. Certificate issued by the employer about his last salary was produced at Exh. 50. The claimants also examined Dr. Mohanlal H. Patel at Exh. 57. He also was a Bachelor of Veterinary Science and Animal Husbandry. He like the deceased was employed in Government Dispensary as Veterinary Officer. He produced his pay slip for the month of April, 2003 at Exh. 58.
5. On the basis of such evidence, the Claims Tribunal believed the income of the deceased on the date of accident at Rs.6271.00. The Claims Tribunal granted 50 per cent towards future rise in income and arrived at a figure of Rs.9407.00 per month towards the income of the deceased. 1/3rd thereof or Rs.3135.00 was set apart for personal expenditure of the deceased leaving the net sum of Rs.6272.00 per month for the dependents. The Claims Tribunal adopted the multiplier of 15 and granted loss of dependency benefits of Rs.11,28,960.00 (i.e.Rs.6272x12x15).
6. To such sum, the Claims Tribunal added a sum of Rs.10,000.00 towards loss of expectation of life and Rs.10,000.00 for loss of consortium. The Claims Tribunal granted Rs.2,000.00 for post death ceremony and, thereby, granted total compensation of Rs.11,50,960.00. 90% of such compensation was payable by the owner of the truck and its insurer that is National Insurance Company and 10 per cent by the owner of the jeep and its insurer that is United India Insurance Co. Ltd. Against such award, claimants have filed First Appeal No. 969 of 2005 seeking further compensation. United India Insurance Company has also questioned its liability to pay any compensation at all in their First Appeal No. 2297 of 2005. The contention of the Insurance Company is that the Claims Tribunal erred in attaching even 10 per cent negligence to the driver of the jeep.
7. We have heard the learned counsel for the parties and we have perused the evidence on record. We would first consider the question of negligence. As noted, the claimants examined one eye witness Kantilal Maganlal at Exh. 51. He stated that on 15.2.1995, he was going from Unjha to Baroda in the said jeep. The deceased was also going to Baroda. The jeep was being driven by one Prahladbhai Ishwarbhai. Along with hm, other persons were travelling in the jeep. At about 11.00 o'clock, in the morning, the jeep reached village Boriavi. When they reached near Ganesh Saw Mills on the National Highway, truck bearing No. GJ-7-T-6986 came from the opposite direction in full speed. The jeep was being driven at slow speed. Upon seeing the truck from the opposite direction, the driver further reduced the speed and took the jeep to the left hand side of the road. The truck driver was however trying to over-take another truck. He, however, failed in his attempt and in the process, he went on the wrong side of the road and dashed against their jeep. He stated that the road had width of 32 ft.
In cross examination, he denied that the jeep was being driven at high speed. He stated that even the jeep driver had died. He, however, did not have details of the claim petition filed by the dependents of the driver.
In the panchanama Exh. 42, it was recorded that the road had a width of 32 ft. The accident had taken place on National Highway No. 8. The jeep was lying on the kacha shoulder of the road. The truck was lying on the wrong side of the road on the eastern edge. The jeep was facing southern direction. The truck was coming from the opposite side.
8. From such evidence on record, it clearly emerges that the accident occurred due to sole negligence of the driver of the truck. In our opinion, the Claims Tribunal erred in holding driver of the jeep even to the extent of 10 per cent negligence in causing the accident. In fact, the Claims Tribunal itself in the impugned judgment recorded that the jeep driver had taken the jeep towards left hand side and the truck driver had come on the wrong side and caused the accident despite it, for the reasons which we cannot appreciate, the Claims Tribunal attributed 10 per cent negligence to the driver of the jeep.
9. Quite apart from the observations of the Claims Tribunal, Kantilal Maganlal examined at Exh. 51 who was eye witness stated in his evidence that the jeep was being driven at moderate speed. The truck came from the opposite direction and the truck driver was trying to over take another truck. When he could not do so, his truck went totally on the wrong side and dashed against the jeep. In the mean time, jeep further had further slowed down his jeep and taken his jeep further to the left. Nothing adverse has come in his cross examination. We have no reason to discard such oral testimony of the witness. Such oral evidence of the witness is fully corroborated by the recordings of the panchanama. Jeep was found off the road on the kacha shoulder. The truck was found totally on the wrong side of the road. While travelling from south to north, the truck was lying touching eastern edge of the road. Road had a width as much as 33 ft. Truck driver had no business to be on extreme right hand side of the road which for him was the wrong side. Though the jeep driver took his vehicle off the road, he could not avoid the accident. Liability for causing the accident therefore must rest on the shoulder of the truck driver. Additionally, truck driver was not examined before the Claims Tribunal by any of the opponents. We are, therefore, of the opinion that the appeal of the United India Insurance Company is required to be allowed by holding that it was the driver of the truck who was solely negligent for causing the accident.
10. This brings us to the computation of compensation. In this respect, what emerges from the record is that the deceased was aged 42 years on the date of accident. He was holding degree of Bachelor in Veterinary Science and Animal Husbandry and he was serving as Veterinary Officer in Government Dispensary at Boriavi at the time of his death. His last salary certificate showed that he was drawing the salary of Rs.6271.00 at the time of accident.
11. We may at this stage peruse the deposition of Dr. Mohanlal Harjivanbhai Patel at Exh. 57. He stated that he had the same qualification of Bachelor of Veterinary Science and Animal Husbandry. He was also employed as Veterinary Officer in the Government. He was doing such service since 24 years. He was holding the same post since his initial appointment. He produced his pay slip for the month of April, 2003 at Exh. 58. He further stated that the deceased was studying with him in the year 1974 and held the same degree. Deceased had joined the service about six months after him. Therefore,had the deceased lived, he would have drawn same salary as the deponent. In the cross examination, he agreed that whether the deceased would have received his promotion or not, he could not say since the promotion is being granted by the Head Office and is being decided by the Government.
12. The pay slip of the deponent for the month of April, 2003 showed his basic salary at Rs.12125.00. He received DA, HRA, NPA and other allowances to make his gross salary Rs.26450.00 per month. From such salary, he suffered deduction of Rs.3500.00 towards income tax, Rs.80.00 towards professional tax. Other major deduction from the gross salary was Rs.6000.00 towards GPF Contribution of the employee. We need not take into account such deduction since GPF of an employee is in the nature of his saving which would be returned to him with interest at the time of retirement, if not sooner released.
13. From such evidence, following aspects emerge:
Deceased had qualification of Bachelor in Veterinary Science and Animal Husbandry. He was employed as Veterinary Officer in the Government since 1974. He had thus completed nearly 25 years of service by the time he met with accident. His pay on the date of accident was Rs.6271.00 per month. His colleague who also held the identical qualification and post, in the year 2003 was drawing gross salary of Rs.26450.00 per month. Eve after deducting Income Tax and Professional Tax, his income would come to Rs.22800/- per month. It is true that in case of Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, the Apex Court has provided uniform formula for granting future increase in income depending on the age of the deceased. In such decision, it is provided that for persons in the age group of 40-50 years, future rise in income should be granted at 30 per cent. However, in the said decision itself, it was observed that "when Where 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."
Decision in case of Sarla Verma (Supra) was considered in subsequent decision in case of K.R. Madhusudhan and others versus Administrative Officer and another 2011 (4) SCC 689. It was observed that rule of thumb provided in case of Sarla Verma is to be applied to those cases where there is no concrete evidence on record of definite rise in income due to future prospects. It was a case where the deceased aged 52 years at the time of accident was employed as a Senior Assistant in Karnataka Electricity Board. The deceased was the only bread winner of the family. Son of the deceased had stated that if his father had lived, he could have got promotion and could have received Rs.20,000.00 per month. The Apex Court further recored that in the year 2003, basic pay of the deceased would have been Rs.16000.00 and gross salary Rs.20,000.00 per month. On the basis of such evidence, the Apex Court believed the income of the deceased to be Rs.20,000.00 per month and Rs.2,40,000.00 per year. 1/3rd thereof was set apart for the personal expenditure of the deceased. Claimants were held entitled to a sum of Rs.1,60,000.00 per year. The Apex Court applied multiplier of 11 and awarded suitable compensation to the claimants. In the said decision, it was observed as under:
"9. We are of the opinion that the rule of thumb evolved in Sarla Verma (supra) is to be applied to those cases where there was no concrete evidence on record of definite rise in income due to future prospects. Obviously, the said rule was based on assumption and to avoid uncertainties and inconsistencies in the interpretation of different courts, and to overcome the same.
10. The present case stands on different factual basis where there is clear and incontrovertible evidence on record that the deceased was entitled and in fact bound to get a rise in income in the future, a fact which was corroborated by evidence on record. Thus, we are of the view that the present case comes within the `exceptional circumstances' and not within the purview of rule of thumb laid down by the Sarla Verma (supra) judgment. Hence, even though the deceased was above 50 years of age, he shall be entitled to increase in income due to future prospects.
14. Bearing in mind the above decision, if we revert back to the facts of the present case, there is reliable evidence of regular periodical increase in the salary in the scale in which the deceased was placed. His colleague stated that he was drawing net salary of Rs.22800.00 per month in the year 2003. We may recall that such witness Dr. Mohanbhai did say that promotion is a mere chance. However, he himself was holding the post on which he was initially appointed. Therefore, salary drawn by such witness Dr. Mohanbhai was not on promotional post but on the same post which the deceased was holding. Uncertainty of chance of promotion therefore would not deter us from adopting standard of salary which the witness Mohanlal was drawing on the date of the deposition.
15. When we take the average of salary the deceased was drawing at the time of accident and the witness Mohanlal was receiving on the date of deposition, it comes to Rs.14500.00 per month.
16. The claim petition was filed by the widow, two minor children and aged parent of the deceased who was the sole bread winner of the family. Even as per the Apex Court decision in case of Sarla Verma (supra), in such cases,deduction of 1/4th for the personal expenditure of the deceased would be justified. Therefore, sum of Rs.3625.00 per month can be set apart for the personal expenditure of the deceased leaving behind the net sum of Rs.10875.00 per month or Rs.1,30,500.00 per annum for the family.
17. As provided in case of Sarla Verma (Supra), looking to the age of the deceased, multiplier of 14 is to be adopted. Dependency benefits therefore would come to Rs.18,27,000.00 (i.e.1,30,500x14). To such figure, we would add Rs.25,000.00 towards loss of estate, Rs.15,000.00 towards loss of consortium and Rs.5,000.00 for post death ceremony. The claimants would thus receive total compensation of Rs.18,72,000.00. The claimants would, thus, receive additional compensation of Rs.7,21,040.00. Such additional compensation shall also carry interest at the rate of 9 per cent per annum from the date of the claim petition till actual payment.
18. In result, first appeal No. 969 of 2005 filed by the claimants is partially allowed. First Appeal No. 2297 of 2005 filed by the United India Insurance Company is allowed. Opponents No.2 and 3 herein that is the owner and insurer of the truck involved in accident are held liable to satisfy the entire award passed by the Claims Tribunal, as enhanced by us. Award of the Claims Tribunal stands modified accordingly. It is clarified that the amount that the United India Insurance Company may have deposited before the Claims Tribunal towards satisfaction of the award shall not be refunded to such Insurance Company but shall be appropriated towards the claim of the claimants. It is further clarified that such Insurance Company may however recover such amount from the National Insurance Company without filing independent proceedings. The National Insurance Company shall deposit the additional amount granted to the claimants under this judgment before the Claims Tribunal within two months from the date of receipt of copy of this judgment. As and when such amount is deposited, 70 per cent thereof shall be invested in any nationalized bank for a period of five years. Interest accruing on such fixed deposit shall be apportioned in the ratio of 55% in favour of the widow of the deceased, 15 per cent each in favour of appellants no.2,3 and 4. The claimants would be entitled to receive periodical interest on such Fixed Deposit in the above proportion. Remaining 30 per cent be disbursed in their favour in the same proportion. R&P be transmitted to the trial Court.
(Akil Kureshi,J.) (C.L.Soni,J.) an vyas